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Comparative Analysis of Conveyancing Systems in the EU

Explore the different transfer validity, third-party effectiveness, and Mortgage Register systems in EU countries, from consensual to abstract transfer methods. Learn about Belgium's person-based system and more.

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Comparative Analysis of Conveyancing Systems in the EU

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  1. Different Conveyancing Systems in the EUJulie Del CorralAspirant FWO-VlaanderenUniversity of Leuven

  2. Overview 1. Validity of the transfer • Consensual vs. delivery transfer system • Causal vs. abstract transfer system 2. Third party effectiveness 3. Mortgage Register • Incomplete system • Person-based system • Negative system • Fragmented system

  3. 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…

  4. 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…

  5. 2. Third party effectiveness in Belgian law • Transcription in the Mortgage Register is required in order to make the sale effective in relation to: • third parties • with competing rights • Right in rem • Unsecured creditors • Insolvency administrator • in good faith • Presumption of good faith • Moment of acquisition/declaration of bankruptcy

  6. 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

  7. 3. Mortgage Register • 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 mortiscausa need to be published • Attestation immobilière

  8. 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.

  9. 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”

  10. 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 voidnessagainst deeds should be mentioned in the margin of the Mortgage register • Protection of third parties?

  11. Registration Transfer to a Action against Annulment third party the registered deed of the deed Retroactive proprietary effect Positive system • Registration confers a good title • Germany, England, Scotland…

  12. Conclusion • Validity – Opposability • Acts inter vivos – Acts mortis causa • Person-based – Land-based – Mixed • Negative – Positive European Union – European diversity

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