Transcript Different Conveyancing Systems in the EU

Different Conveyancing
Systems in the EU
Julie Del Corral
Aspirant FWO-Vlaanderen
University of Leuven
Overview
1. Validity of the transfer
– Consensual vs. delivery transfer system
– Causal vs. abstract transfer system
2. Third party effectiveness
3. Mortgage Register
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–
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Incomplete system
Person-based system
Negative system
Fragmented system
1. Validity of the transfer
• Consensual vs. delivery transfer systems
– Consensual systems
• Consensus between the parties suffices to transfer
ownership
• Belgium, Denmark, France, Italy, Luxembourg, Portugal,
Sweden…
– Delivery systems
• A delivery is necessary to transfer ownership
• Constitutive registration
• Austria, Germany, Greece, Scotland, Switzerland…
• Causal vs. abstract transfer systems
– Causal systems
• The validity of the proprietary transfer depends upon the
validity of the obligatory agreement
• Austria, Belgium, France, Ireland, Italy, the Netherlands,
Portugal, Spain, Sweden…
– Abstract systems
• The validity of the proprietary transfer does not depend
upon the validity of the obligatory agreement
• Estonia, Germany, Scotland…
2. Third party effectiveness in Belgian law
• Transcription in the Mortgage Register is
required in order to make the sale effective in
relation to:
(1) third parties
(2) with competing rights
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•
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Right in rem
Unsecured creditors
Insolvency administrator
(3) in good faith
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Presumption of good faith
Moment of acquisition/declaration of bankruptcy
• Priority principle:
– The first one who has registered the deed in the
Mortgage Register will prevail
– E.g. double sale
• Authentic deed
• Electronic registration / consultation
3. Mortgage Register
A. Incomplete system
•
Article 1 of the Mortgage Act: all deeds related to the
transfer of real property, the lease agreements with a
term that exceeds 9 years or the designation of all kind
of real rights
•
Only transfers inter vivos
– The transfer by way of succession is not mentioned in the
Mortgage Register
– Check the Registration Office
– France:
• Transfers mortis causa need to be published
• Attestation immobilière
• Only consensual transfers
– No transfers by way of law: acquisitive prescription, accession,
legal easement, etc.
– These transfers are automatically effective vis-à-vis third
parties.
B. Person-based system
– Name of the person holding rights on the immovable
– Cadastral Register
– Belgium, Greece, Italy…
Land-based registration system
• Identification number of the parcel
• Austria, Germany, the Netherlands, Spain…
Mixed registration system: France
• “Fiches personnelles”
• “Fiches réelles”
C. Negative system
– The registration of deeds does not ensure the validity
of the registered rights (no Grundbuchsystem)
– Belgium, France, the Netherlands, Spain, Sweden…
– Actions for voidness against deeds should be
mentioned in the margin of the Mortgage register
– Protection of third parties?
Registration
Transfer to a
third party
Action against
the registered deed
Retroactive proprietary effect
Positive system
– Registration confers a good title
– Germany, England, Scotland…
Annulment
of the deed
Conclusion
1)
2)
3)
4)
Validity – Opposability
Acts inter vivos – Acts mortis causa
Person-based – Land-based – Mixed
Negative – Positive
European Union – European diversity