summary about the elra-questionnaire aspects of debt enforcement procedures and foreclosure in...

Summary about the ELRA-Questionnaire„Aspects of Debt Enforcement Procedures and Foreclosure in European Land Registry Matters“

ELRA Questionnaire on Foreclosure 2

Retrospect: the four sections of the Questionnaire

A) Access to the Land Register

B) Debt Enforcement Procedures, Foreclosure and real-estate rights in practice

C) Sequestration/Receivership in Land Registry Procedures

D) Covering mortgage/Charging order/ Hypotheque judiciaire conservatoire

Note:The Questionnaire was originally presented on April 14, 2009, on the ELRA

Forum Website and discussed on the 9th ELRA Meeting in Brussels, April 27, 2009. Additional offers during the summer time and until deadline via e-mail and by telephone calls.


Contributions from 17 member associations of ELRA (Questionnaire 2008: only 13 contributions)

Estonia: Centre of Registers and Infosystems Belgium: Fedération Royale d. Conservateurs d. Hyp. Holland: Land Registry and Cadastre Agency Lithuania: Central Mortgage Office + State Enterprise of Registers Ireland: Land Registry of Ireland Slovenia: Supreme Court of the Republic of Slovenia Cyprus: Departments of Lands and Surveys of Cyprus Germany: Bund Deutscher Rechtspfleger Latvia: Department of Land Book Ministry of Justice Portugal: Instituto dos Registos des Portugal Spain: Colegio de Registradores de Espana Scotland: Registers of Scotland Romania: National Agency for Cadastre and Land Registration + The Romanian Land Registry

Association Bulgaria: Bulgarian Registry Agency Finland: National Land Survey of Finland Luxemburg: Administration de l `Enregistrement et des Domaines England and Wales: HM Land Registry of England and Wales


Some aspects concerning the first section „Access to the Land Register“

Can the creditor obtain relevant information about a specified asset from the Land Registry Also about the assets owned by a specified individual or corporation?

Does the creditor have to demonstrate a legitimate interest in the information in order to obtain it?

Are there any auxiliary data bases which must be searched to find immoveable assets besides the Land Register? What about costs of researching information in the Land Register or other relevant register?


Some results concerning the first section „Access to the Land Register“

Can the creditor obtain relevant information about a specified asset from the Land Registry? And what about the assets owned by a specified individual or corporation?

• Scotland: yes, the Registers in Scotland maintains two registers relating to the ownership of rights in Land- the Register of Sasines and the Land Register of Scotland; both are public registers and can be searched in several ways

• England and Wales: yes; and about the assets owned by a specified individual or corporation: yes, in the case of corporation, normally no, in the case of an individual; exception: individual has been declared bankrupt

• Rumania: yes; if the creditor knows the land book number, the Land Registry can issue a land book certificate; if the creditor does not know it, the Land Registry can perform a special research

• Germany: yes, the Land Register is the decisive source of information in questions about legal relationship of real estate; if the creditor does not know the land book number, an auxiliary database (owner register) can be used

• Spain: yes, see internet portal www.registradores.org; requests can be posted there• Latvia: Section 132 + 134 Land Register Law, the creditor can examine the registers• Estonia: yes, the Land Register is public, everyone can examine the registers• Bulgaria: yes




NO:Scotland (both property registers are accessible by anyone without the

requirement to demonstrate a legitimate interest in doing so)England and Wales (only exception to this rule: the group of people who

are entitled to search the index to find what property is registered in the name of a particular individual)

Rumania (only exception to this rule: the creditor must prove a legitimate interest when he does not know the identification of the immovable)

LatviaEstoniaBulgaria




YES:

Germany: yes, the creditor has to demonstrate a legitimate interest in the information; relevant is Article 12 German Land Registry Act (= GBO); only public authorities and notaries do not have to demonstrate this interest

Spain: yes, the Registrar has to assess this interest, which must be expressed in the application form, Art. 221 to 229 Ley Hipotecaria and 332 Reglamento Hipotecario; only public authorities and legal practioners do not have to demonstrate this interest



Are there any auxiliary data bases which must be searched to find immoveable assets besides the Land Register?

Scotland: where the subject of a creditors´interest have not been registered in the Land Register, a search of the Register of Sasines is required

England and Wales: noRumania: yes, it is possible that the property has not been registered in the land

book, but has been registered in the Fiscal data basesGermany: yes, the so-called owner registry and the so-called real estate listing,

both auxiliary data bases, administrated by the Land Registry; both are some kind of research assistant

Spain: Cadastre (Land Survey), but the access to this data base is very restrictiveLatvia: yes, State information systemBulgaria: no


Some aspects concerning the second section „Debt Enforcement Procedures, Foreclosure

and real-estate rights in practice“

• What kind of real-estate rights do you have? Are there some, which are not seizable?

• How can a real-estate right be seizured?


Some results concerning the second section „Debt Enforcement Procedures, Foreclosure


What kind of real-estate rights do you have? Are there some, which are not seizable?

Scotland: ownership, right in security (mortgage/charge), liferent, servitude, lease; only rights under a lease for over 20 years in duration will be attached for debt in Scotland; the lease held by a tenant can not be transfered and is therefore not attachable; a servitude can also not be transfered separately and is therefore not considered to be the appropriate subject of debt enforcement procedures





England and Wales: the English law distinguishes between „legal estates“ and „beneficial interests“ in land; these can be held by different persons, and this has implications for the creditors:

A + B are joint owners: they hold the legal estate jointly, but have a separate beneficial interest; a creditor can only make a claim for a joint debt of A + B, not for a individual debt of A or B

A + B hold legal estate, C + D own beneficial interest: a creditor can only make a claim against the legal estate in respect of a debt owed by A and B





Rumania: property, usufructus, uses, servitudes and accessory real-estate rights such as mortgage;

the only right which is not seizable is the right of public property





Germany: the German law provides for easement (Dienstbarkeit), charge on land (Reallast), preemption right (Vorkaufsrecht), usufructus (Nießbrauch), mortgage (Hypothek), land charge (Grundschuld);

There are some types of real-estate rights, which can not bei seized. Seizable to a limited extent are all those real-estate rights, which are of personal nature, including usufructus and easements. Those real-estate rights are non-transferable and therefore not be seized, Art. 857 Code Civil Procedure.





Spain: the Spanish law provides three groups of real-estate rights:

1) Real Estate Right of enjoyment: property, usufruct, usus, easement

2) Real Estate Right of guarantee: mortgage, pledge

3) Real Estate Right of preferential acquisition: pre-emption and redumption.

Not seizable: derecho de uso y habitacion (right of use usage and habitation, Art. 525 Civil Code)





Latvia: no, all kind of real-estate rights are seizable.

Estonia: ownership, servitudes, real encumbrances, superficies, right of pre-emption and right of security; no answer about non-seizable rights

Bulgaria: there are some rights that cannot be seized, if they are not mortgaged, like your only habitat, or 0.5 ha of arable land.



and real-estate rights in practice“How can a real-estate right be seizured?

Scotland: there are a number of processes available in Scotland for a creditor to enforce their unpaid debt, including:

• Heritable creditor´s power of sale: the holder of a heriditable security may take control of and sell property affected by the security

• Receivership: the holder of a floating charge appoints a receiver to sell company assets

• Sequestration: the property can be sold to satisfy all the creditors of a debtor

• Adjudication: a creditor can obtain a form of judicial heritable security which will convert into ownership if the debtor fails to redeem the debt; the adjudication will be abolished in the very next future, as an amendment of Scotish law.




How can a real-estate right be seizured?

England and Wales: there are three procedures:

1) Charging Order (see remarks to the Fourth section of the Questionnaire)

2) Freezing Order: it prevents the debtor disposing of it without the permission of the court; it is intended to be a protective measure

3) Statutory charge: therefore, the public bodies have a power to create and register such a statutory charge to secure money owing to them (see Public Health Act)




How can a real-estate right be seizured?

Rumania: a judicial decision is needed in order to seize a real-estate right

Germany: required are an attachment order (Pfändungs- und Überweisungsbeschluss) and the delivery of the attachment order to the debtor (Zustellung)

Spain: by a judicial order issued by a judge in a foreclosure procedure; there are also seizures order by public administrative Authority (tax debts)

Bulgaria: through a special procedure, executed by the Bailiff


Some aspects concerning the third section „Sequestration/receivership in Land Registry

Procedures“

Please describe the role of the Land Registry in such procedures!


Some results concerning the third section „Sequestration/receivership in Land Registry

Procedures“

Scotland: the Registers of Scotland has no formal role in the procedures to constitute a sequestration or receivership; however, when sequestration is awarded by a court, the award will usually be submitted to be registered in the Register of Inhibitions.

England and Wales: the appointment of a receiver is not registered at the Land Registry

Rumania: the registrars have to take in consideration the legal effect of the sequestration in the sense, that all other subsequent applications regarding the transfer of the immoveable will be rejected


Some results concerning the third section „Sequestration/receivership in Land Registry

Procedures“

Germany: the Land Registry receives in such procedures a request by the Local Court, department foreclosure, addressed to the entry of the sequestration, Article 38 German Land Registry Act (= GBO); that means, that the Land Registry does not act ex officio, but only due to a formal request

Spain: the Land Registry has to issue a land charges certificate; the Land Registry has to notify the creditors whose titles had entered the Land Register.

Latvia: a judge of the Land Register department shall base his decision only on the data, given in the request and documents attached, without requesting any information from authorities or private individuals

Bulgaria: the Land Registry registers the claim and all acts of the Court and the Bailiff regarding these procedures.


Some aspects concerning the fourth section „Covering mortgage/Charging order/ Hypotheque judiciaire conservatoire“

Please describe the legal requirements in general


Some results concerning the fourth section „Covering mortgage/Charging order/ Hypotheque judiciaire conservatoire“

Scotland: according to the Scots legal terminology, „Charging Orders“ are essentially securities which Scottish Ministers, the Secretary of State for Scotland or local authorities in Scotland may register in the Land Register or record in the Register of Sasines.

England and Wales: see Charging Orders Act 1979; therefore, a so-called „judgement creditor“ can obtain a charging order. In case, „judgement creditor“ means a creditor who has obtained a judgement from a court requiring the debtor to pay a sum. A Charging Order is therefore a means of enforcing a court judgement.



Rumania: the covering mortgage is not regulated in the Rumanian legislation; in the older legislation (1912), an executional mortgage was regulated, but it has been replaced by the summons.

Germany: the legal requirements according to the German Law are as follows (=Eintragung einer Zwangshypothek):

• Application of the creditor, Art. 867 Civil Code• Title of execution (Vollstreckungstitel) • Writ of execution (Vollstreckungsklausel)• Proof about postal delivery (Zustellungnachweis)• Minimum amount: 750,01 euros, Art. 866 Section 3 ZPO• The covering mortgage may be entered on only one estate, not for several, Art. 867 Section

2 ZPO• No execution restraints• Correct naming of the real estate in the application, Art. 28 GBO• Pre-registration of the debtor/owner of real estate, Art. 39 GBO



Spain: according to the Spanish law, there is no judiciary mortgage, there are voluntary and legal mortgages

Estonia: one of the measures for securing an action is to establish a judicial mortgage on real-estate belonging to the defendant; the court shall send a ruling on securing an action to the Land Registry; a judicial mortgage must be inscribed.

Bulgaria: the Bulgarian Land Registry does not register any rights; only acts, through which the rights are acquired, are registered.


On-going work with the results

• Evaluation of the data- check on coherence of data, corrections and supplements: please check on your answers in the context of the other answers

• Questionnaire and website• Compiling it like a handbook• Drawing conclusions• Summary• Invitation to give the Questionnaire to universities or universities

of applied sciences for further comparative studies


The end

THANK YOU VERY MUCH FOR YOUR CONTRIBUTIONS!

summary about the elra-questionnaire aspects of debt enforcement procedures and foreclosure in...

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