Maintenance of the provisional registration of a mechanic's and contractor's legal mortgage until the final decision

Facts

On August 18, 1970, Michel and François Constantin filed a provisional request for a mechanic's and contractor's legal mortgage for an amount of 52,441 francs 15 on the property of the Tilmann spouses. On August 20, 1970, the judge ordered the provisional registration, without setting a deadline for requesting the definitive registration or a duration of the registration.

On September 10, 1970, the judge admitted the request for provisional registration for the claimed amount, but specified that the registration was granted for a period of two years and that the applicants had to file an action within six months to have the mortgage registered definitively, failing which the provisional registration would become void. However, this decision was not communicated to the land registry office.

Within the prescribed time limit, Michel and François Constantin filed an action for the definitive registration of their legal mortgage. However, on February 2, 1973, the investigating judge declared the provisional registration void, due to the applicants' failure to request in a timely manner the extension of its validity.

Michel and François Constantin appealed against this decision, requesting the maintenance of the provisional registration of the legal mortgage until the date of the definitive registration.

Considerations

The Federal Tribunal considers that, although the decision on the annotation or cancellation of a provisional registration has the character of a provisional measure and is therefore not subject to an appeal for reform, the appellants have in reality intended to request the reform of the judgment rejecting their action for the definitive registration of the legal mortgage, which constitutes a final decision within the meaning of Art. 48 para. 1 OJ.

The Federal Tribunal notes that when the registration in the land registry limits the validity of the provisional registration to a certain date, in application of Art. 961 para. 3 CC, the request to extend this period of validity must be submitted before the expiry of the set deadline. However, in the present case, as the judge's decision setting the validity period of the registration was not communicated to the land registry office, this registration does not mention a validity period.

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