Antichresis or How to Receive Income from a Property
For decades, anticresis has remained in a discreet second place within real guarantees. However, its recent regulatory and practical recovery, driven by registry resolutions and its social utility in contexts such as dependency financing, has brought attention back to this almost forgotten figure of civil law.
The anticresis and the real guarantee
Antichresis is configured as a real right of guarantee through which the creditor can receive the fruits or rents of a debtor's property, applying them to the payment of interest —if any— and subsequently to the capital. Its essence lies, therefore, in the economic exploitation of the asset given as security, instead of the immediate realisation of its value as occurs in a mortgage.
Currently, antichresis is experiencing a genuine legal and notarial revival, as an instrument of assistance for dependent persons, especially in Catalonia, where the Catalan Civil Code has developed a modern and effective regulation that provides it with real operability in legal transactions. This new context invites a rediscovery of its advantages, its legal regime, and its practical usefulness.
What is anticresis and what is it used for?
Article 1881 of the Civil Code defines anticresis in a simple and precise manner: “by anticresis the creditor acquires the right to receive the fruits of a property of their debtor with the obligation to apply them to the payment of interest, if due, and afterwards to the capital of their credit.” For its part, the Civil Code of Catalonia, in its article 569-23 states “the right of anticresis, which may be constituted over a fruitful property as security for the payment of any obligation, entitles creditors to possess it, either themselves or through a third party if agreed, and to receive its fruits to apply them to the payment of interest and the amortisation of the capital of the secured obligation and, in case of non-fulfilment of the secured obligation, to request the realisation of the value.”
From these provisions, its nature as a real security right is derived, characterised by a direct relationship between the creditor and the property. Current doctrine and case law agree in affirming that it is indeed a real right, due to its enforceability against third parties and the immediate relationship with the asset.
Anticresis may be constituted over fruitful properties, whether they produce natural fruits (an agricultural estate) or civil fruits, such as rent. It is precisely this possibility of receiving income from a leased property that today offers a very relevant field of application, both in financial operations and in cases of assistance to elderly or dependent persons.
An ancillary and flexible guarantee
Antichresis is accessory to a principal obligation — normally a loan — and is extinguished upon its fulfilment. It can be established by contract between the parties, inter vivos or mortis causa, and although the Civil Code does not require a public deed for its constitution, it is required according to Catalan law (art. 569-24).
Its registration is not constitutive, but it is highly recommended for its enforceability against third parties.
Furthermore, the Resolution of the Directorate General of Legal Security and Public Faith of 8 July 2025 has confirmed the possibility of establishing an antichresis on undivided shares of a property, provided there is consent from the other co-owners and the destination of the fruits is regulated proportionally.
Antichresis: Rights and obligations of the parties
In practice, the anticresis unfolds a network of reciprocal rights and duties that require precision in their notarial drafting.
On the side of the anticretic creditor
The creditor acquires the right to possess the property (directly or through a third party) and to receive the fruits it generates, whether rental income or operating profits. These rents are allocated first to interest and then to capital, as established by the Civil Code itself.
The creditor must maintain the property, pay the taxes and charges that weigh on it while in possession, and return it in the same condition once the debt is satisfied. Furthermore, they have the right to retain possession in case of non-payment, until the debtor fulfils their obligations.
In case of default, article 1884 CC allows the creditor to request the judicial sale of the property or claim payment through enforcement proceedings. However, they cannot directly appropriate the asset, as this is considered a forfeiture clause, a prohibition expressly reiterated by case law and by Resolutions of the Directorate General, such as that of 20 July 2012.
On the debtor's or owner's side
The debtor retains ownership of the property and maintains all ownership rights compatible with the creditor's right, even being able to mortgage or encumber it, provided that the possession or the right to fruits granted in anticresis is respected, and, where applicable, the registration rank.
They have the right to recover the enjoyment of the property once the debt has been fully paid, and cannot reacquire possession before that moment (art. 1883 CC).
Antichresis vs mortgage and assignment of rents: essential differences
Although the anticresis shares with the mortgage its nature as a real guarantee, both figures respond to different logics.
Possession and use of the property
In the mortgage, the creditor neither owns nor exploits the property: their guarantee consists of an enforcement power over the value of the asset.
In the antichresis, on the other hand, the creditor takes possession (or manages the lease) and enjoys the fruits to recover their money. In economic terms, it is not guaranteed by the value of the asset, but by its yield.
It should also not be confused with the assignment of rents or leases, sometimes included in mortgage loans.
Execution and realisation of value
The mortgage grants the creditor an immediate ius distrahendi (they can cause the sale of the asset to satisfy the credit through judicial and extrajudicial enforcement processes).
The antichresis, on the other hand, does not grant the creditor this right, but does grant a right of retention (they will keep the asset until the debtor finishes paying) and the possibility of judicial sale, but not automatic, rather through the corresponding judicial procedure, unlike the mortgage.
Its enforcement power is weaker, which makes it a more flexible and less aggressive guarantee.
Economic function and current affairs
The mortgage is aimed at credit for acquiring assets; the anticresis, on the other hand, can become a liquidity instrument on already existing assets. Hence its current interest in contexts of estate planning and dependency, where the property is put to work generating income to cover the economic needs of the owner.
The regime of the Civil Code versus the Civil Law of Catalonia
The model of the common Civil Code: Antichresis in Spain
The common Civil Code is based on articles 1881 to 1886 CC, from which a classic model emerges: the anticresis arises from the contract (not from registration), is extinguished with the principal debt, and authorises the creditor to receive fruits, maintain the property and, in case of non-payment, retain the property and/or request its judicial sale.
Valuation or insurance is not required, although they are prudent practices when the property is leased. Nor is a special priority of the credit over other creditors foreseen, unless the anticresis is registered in the Property Registry, although the secured credit will be considered a special privileged credit in accordance with article 270.2º of the Insolvency Law.
The Catalan model: modernisation and effectiveness of the Antichresis in Catalonia
The Book V of the Civil Code of Catalonia (arts. 569-23 to 569-26) has given anticresis a modern structure, fully integrating it among real guarantees alongside mortgage and pledge.
The Catalan regulation defines it as a real right over a productive property, which entitles the creditor to possess or manage it and to receive its fruits to apply them to the payment of interest and capital.
Distinctive features of the Catalan model
- Reinforced formal constitution: must be granted by public deed and only takes effect against third parties from its registration in the Property Registry.
- Right to realise the value: the creditor can request the direct sale or the notarial auction of the property, something that the state regime does not contemplate.
- Obligation of diligent administration and annual accounting, guaranteeing transparency and balance between creditor and owner.
- Distribution of the credit among several properties if the property is divided or segregated, reinforcing legal certainty.
This modernisation has made Cataluña the territory where anticresis has gained greater practical relevance, especially in real estate or healthcare financing operations.
The legal certainty provided by the Notary for Antichresis
The revitalisation of the anticresis requires a precise notarial configuration. It is not enough to reproduce the articles of the Civil Code: the deed must detail the nature of the debt, the delivery of possession or its substitution by administration, the application of income and the regime of maintenance and expenses.
In particular, it is advisable to expressly establish:
- What is understood by net fruits (after deducting charges and maintenance expenses).
- What powers the creditor has over the leasing or management of the property.
- What happens if the property is not rented or ceases to generate income.
- How accounts are rendered and when the anticresis is extinguished or cancelled.
The notary plays an essential role in balancing the interests of the parties, avoiding abusive clauses and guaranteeing material transparency in the operation, especially when elderly people or those with support for exercising their capacity are involved.
Conclusion: anticresis, an ancient figure with a modern outlook
Far from being a legal relic, anticresis is emerging today as a flexible alternative to provide liquidity to those who own properties but need periodic income. Its regulatory revival — particularly in Catalonia — and its potential as a assistance or patrimonial guarantee make it a useful tool for situations where a reverse mortgage is not suitable.
The future of this figure will depend on its correct notarial and registry articulation, the professionalism of the operators managing it, and the capacity of civil law to adapt it to new economic and social needs.
Would you like more information or to assess whether anticresis can be applied to your specific case? At JLA Notarios, Notaries in Barcelona, we advise you on the best way to legally structure your operation, with notarial security and clarity.
Frequently Asked Questions about Antichresis
Antichresis gives the creditor the right to receive the fruits (rents) of the property to recover the debt, whereas in a mortgage the creditor neither owns nor exploits the asset, but can enforce it to realise its value.
In Common Law it is not mandatory, although it is advisable for its enforceability. In Catalonia, registration is necessary for it to have effects against third parties.
Yes. The creditor can expressly waive the right to realise the value, limiting themselves to receiving the income or fruits until full payment.
He must pay the charges and taxes, maintain the property, and account for the income received, applying it to the debt as agreed.
Because the Catalan Civil Code has updated its regulation, providing it with real effectiveness (direct sale, mandatory registration and accountability) that makes it attractive as a modern guarantee.
