Preventive control of legality
1. Do Land Registrars or Land Registries carry out a legal scrutiny or assessment of the documents or applications submitted or (conversely) are registered without a previous examination?
Applications are legally scrutinized before any registrations can be granted. Legal evaluation of applications and related documents is conducted by registrars, who are either jurists or so called registration secretaries.
If the application is incomplete, the applicant shall be exhorted to supplement his application. The applicant shall be informed as to how his application is incomplete, the deadline for supplements and the consequences of a failure to heed the exhortation; the consequence is that the application shall be dismissed. The exhortation shall not be given if it is evident that no registration can be made on the basis of the application, that is, if the defects or legal problems in the application or attached documents cannot be corrected. Where necessary, another exhortation may be given.
The register authority shall on its own initiative obtain the necessary information on circumstances relevant in the consideration of the matter as is available from the registers accessible to the register authority.
2. What does the object of the LR assessment consist of? Are the documents presented and the content of the registration books or land books (or any other books or lists of your LR organisation) the only elements that land registrars bear in mind for carrying out their assessment and then to accept registration or not? What is the situation in your LR system?
Registrars are legally entitled to request all kind of requirements or evidence to ensure the application for registration is legal complemented with a statement that the registrar is not only entitled to, but he or she also has an obligation to take into account all legally relevant aspects of the circumstances. He or she has to ask for supplements if needed.
3. Otherwise, the correct answer with respect to your LR assessment would be:
LR system does not accept documents that don’t fulfil all legal requirements. In the Code of Real Estate there are stated some of the grounds which the rejection of application must be based on. However, the law requires the registrar to take into consideration other grounds, too, if they are legally relevant in evaluation of the application.
4. A specific case: let’s consider an application for registration based on a document or deed with lack of legal prerequisites. What would your LR response be?
That’s a reason of reject or abeyance the application for registration whereas the defect isn’t corrected.
If the application is incomplete, the applicant shall be exhorted to supplement his application. The applicant shall be informed as to how his application is incomplete, the deadline for supplements and the consequences of a failure to heed the exhortation; the consequence is that the application shall be dismissed. The exhortation shall not be given if it is evident that no registration can be made on the basis of the application, that is, if the defects or legal problems in the application or attached documents cannot be corrected. Where necessary, another exhortation may be given.
5. In case of rejection or abeyance of a document, does your system provide legal possibilities to request a review to the parties or stakeholders? Do they have legal possibilities of appealing the Land registers’ decision? Please, describe the procedures if applicable.
They have legal possibilities of appealing the decision of the Register Authority. They can appeal to the relevant Land Court in that area. Land Court is a specific department in the Local District Court.
6. Must registrars or LR offices do their assessment within deadlines? If applicable, is it mandatory for registrars in charge or is it rather a guideline?
It is stated in the Code of Real Estate, that a registration matter shall be considered without undue delay.
