Key data
| Regulation | Resolution of May 11, 2026, from the General Directorate of Legal Security and Public Faith (DGSJFP), appeal against qualification note from the property registrar of Madrid no. 40 |
|---|---|
| Publication | August 6, 2026 |
| Entry into force | Not specified |
| Affected parties | Construction companies and creditors with refactoring credits against companies in bankruptcy proceedings |
| Category | Real Estate / Bankruptcy Law |
| BOE Reference | BOE-A-2026-17150 |
| Parties involved | Fernández Molina Obras y Servicios (appellant construction company) vs. developer in bankruptcy proceedings |
| Resolving body | General Directorate of Legal Security and Public Faith (DGSJFP) |
A construction company that executes works for a developer and does not get paid can protect its credit by annotating a refactoring credit in the Property Registry. But if that developer enters bankruptcy proceedings, the rules change radically. The Resolution of the DGSJFP of May 11, 2026 confirms it clearly: the Registry can reject those annotations if they are not backed by the bankruptcy judge.
The specific case that originates this resolution is that of Fernández Molina Obras y Servicios, a construction company that attempted to maintain preventive annotations of refactoring credit on properties of a developer already declared in bankruptcy. The property registrar of Madrid no. 40 suspended the recording of those annotations. The construction company appealed. The DGSJFP dismissed the appeal and confirmed the suspension.
What does this regulation establish?
The resolution confirms three reasons why the registrar correctly suspended the recording of preventive annotations of refactoring credit:
| Reason for suspension | Practical explanation |
|---|---|
| Lack of tax accreditation of ITP-AJD | Payment or exemption of the Property Transfer Tax and Documented Legal Acts was not accredited, a prerequisite for registration in the Registry. |
| Inadequate document | A decree was presented instead of a judicial order, which is the document required for this type of annotations. |
| Exclusive jurisdiction of the bankruptcy judge | Once bankruptcy is declared, any civil action with patrimonial significance against the bankrupt must be processed before the commercial judge of the bankruptcy, not unilaterally before the Registry. |
The third reason is the most relevant for the sector. Spanish bankruptcy legislation establishes that, once bankruptcy is declared, the commercial judge assumes exclusive jurisdiction over all actions with patrimonial impact on the debtor. This includes preventive annotations of refactoring credit. Without the approval of the bankruptcy judge, the Registry cannot practice those annotations.
Economic and operational impact
For a construction company, refactoring credit is one of the few tools it has to guarantee payment for executed works. The preventive annotation in the Registry gives it preference over other creditors on the constructed or renovated property. Losing that registry protection in a bankruptcy has direct consequences:
- Loss of preference: Without a valid registry annotation, the construction company's credit competes on equal terms with the rest of ordinary creditors in the bankruptcy, drastically reducing payment possibilities.
- Procedural opportunity cost: Going to the Registry without going through the commercial court generates a suspension that forces you to redo the procedure, with associated legal and time costs.
- Risk of prescription: Deadlines in a bankruptcy are strict. A procedural error can cause the construction company to lose the moment to properly appear in the bankruptcy proceedings and defend its credit.
- Impact on cash flow: Construction companies that work with developers usually have work credits of high amounts. Being classified as an ordinary creditor in a bankruptcy, instead of a creditor with special privilege, can mean recovering cents per euro owed.
Who does it affect?
- Construction companies and construction firms that have executed work for real estate developers currently in bankruptcy proceedings.
- Subcontractors and material suppliers that may have the right to refactoring credit for their contribution to the work.
- Creditors with preventive annotations of refactoring credit already practiced or pending practice on properties of bankrupt companies.
- Legal advisors and managers who process registry operations for companies in the construction sector.
- CFOs and financial directors of construction companies with exposure to developers with financial difficulties.
Practical example
Taking as reference the real case that originates this resolution: Fernández Molina Obras y Servicios executed works for a real estate developer and, upon not being paid, attempted to maintain preventive annotations of refactoring credit on that developer's properties in the Property Registry of Madrid.
The problem: the developer had already been declared in bankruptcy proceedings. The construction company presented a decree (document issued by the court clerk) instead of a judicial order, and did not accredit payment of the ITP-AJD. The Madrid registrar no. 40 suspended the recording of the annotations.
The construction company appealed to the DGSJFP arguing that it had the right to maintain those annotations. The resolution dismissed the appeal: since the developer was in bankruptcy, the only valid route for Fernández Molina Obras y Servicios was to appear in the bankruptcy proceedings before the commercial judge and request the recognition and protection of its refactoring credit there. The Registry could not act outside the bankruptcy judge's authority.
Practical result: the construction company had to reorient its entire collection strategy toward the commercial court, with the costs and deadlines that implies, and without the registry protection it expected to maintain.
What should companies do now?
- Identify if any of your developer clients are in bankruptcy: Check the Commercial Registry or the BOE to verify if bankruptcy proceedings have been declared against your debtors.
- Do not act directly before the Registry if bankruptcy is declared: Any preventive annotation of refactoring credit on assets of a bankrupt requires authorization from the commercial judge. Submitting documentation directly to the Registry without that approval will result in suspension.
- Appear in the bankruptcy proceedings: Contact a lawyer specializing in bankruptcy law to report your credit within the deadline established by the bankruptcy judge. Recognition of refactoring credit as credit with special privilege must be requested in that forum.
- Verify the type of required document: For registry annotations related to bankruptcies, the valid document is the judicial order, not a decree from the court clerk.
- Accredit the ITP-AJD: Before submitting any documentation to the Registry, make sure to accredit payment or exemption of the Property Transfer Tax and Documented Legal Acts.
- Review future contracts with developers: Include clauses that facilitate the constitution of refactoring credit before insolvency occurs, when you can still act with full freedom before the Registry.
Frequently asked questions
Can the Property Registry reject an annotation of refactoring credit if the debtor company is in bankruptcy?
Yes. According to the Resolution of the DGSJFP of May 11, 2026, the Registry can suspend the recording of preventive annotations of refactoring credit when the debtor company has been declared in bankruptcy proceedings. The reason is that, once bankruptcy is declared, any civil action with patrimonial significance against the bankrupt must be processed before the commercial judge of the bankruptcy, not directly before the Registry.
What should a construction company do to protect its refactoring credit if the developer is in bankruptcy?
It must appear in the bankruptcy proceedings before the commercial court that processes the bankruptcy and report its credit within the established deadline. It is the only valid route to request recognition of refactoring credit as credit with special privilege. Acting directly before the Registry without going through the bankruptcy judge will result in suspension of the annotation, as happened in the case of Fernández Molina Obras y Servicios.
What document is needed to annotate a refactoring credit in the Registry when there is bankruptcy?
A judicial order issued by the bankruptcy judge is needed, not a decree from the court clerk. This was one of the three reasons why the Madrid registrar no. 40 suspended the annotations in the Fernández Molina Obras y Servicios case: a decree was presented instead of the required judicial order.
What taxes must be accredited to register a refactoring credit in the Registry?
It is mandatory to accredit payment or exemption of the Property Transfer Tax and Documented Legal Acts (ITP-AJD). The lack of this accreditation was one of the three reasons for suspension confirmed by the DGSJFP in the resolution of May 11, 2026.
What happens if a construction company does not appear in the bankruptcy in time to defend its refactoring credit?
If it does not report its credit within the deadline set by the bankruptcy judge, it may lose the opportunity to have it recognized as credit with special privilege. In that case, the credit could be classified as ordinary or even subordinated, which drastically reduces payment possibilities. Deadlines in bankruptcy proceedings are strict and their non-compliance has direct consequences on the order of payment priority.
Official source
Consult complete regulation in official source
Notice: This article is merely informative in nature and does not constitute legal advice. For specific decisions, consult a qualified professional. Source: https://www.boe.es/diario_boe/txt.php?id=BOE-A-2026-17150