In a recent ruling, the Athens Magistrate Court ordered the removal of a mortgage pre-notation following the application of the heir to the debt as well as of the encumbered property. The applicant had not accepted the inheritance, but had fully repaid the existing debt (Athens Magistrate Court Decision No. 49/2023).
Specifically, the applicant had become the universal heir of the deceased debtor based on a handwritten will. At the time of filing the application for removal of the pre-notation, the applicant had not yet formally accepted the inheritance. However, although the four-month deadline for renunciation of the inheritance had not yet expired, the Court held that tacit (implied) acceptance had occurred, since the applicant had actively involved herself in the estate by, among other things, repaying the outstanding debt that had led to the registration of the mortgage pre-notation on the inherited property.
According to the relevant provisions of the Greek Civil Code (Articles 1710 §1, 1846, 1193, 1195, 1198, and 1199), ownership of inherited real estate is retroactively transferred to the heir as of the decedent’s death, but only if the heir accepts the inheritance via a public deed and registers that declaration, or if a certificate of inheritance is issued and registered in the land registry or cadastral system. Until such registration takes place, the heir is not allowed to exercise powers toward third parties that aim to protect or dispose of the property.
As mentioned, the heir and applicant had neither accepted the inheritance through a public deed, nor obtained a certificate of inheritance. Therefore, she was not legally entitled to file the application as owner of the encumbered property. However, the Court held that the applicant did have a legitimate interest to file the application not as owner of the property, since she had not yet formally accepted the inheritance, but as heir to the debt, i.e., as the debtor, a fact that the Court may even consider ex officio (on its own motion).
Consequently, according to the ruling of the Athens Magistrate Court, the persons who are actively entitled (have standing) to request the removal of a mortgage pre-notation are not only the owner of the encumbered property, but also the debtor themselves, who may not necessarily be the same person as the property owner—provided that the debt has been fully repaid beforehand.
