Proprietorship (Section B)
I. PRELIMINARY REMARKS
As we shall see, SECTION “B” is related to Proprietorship and divided into five topics. The following is a general idea about them:
- Main property right or class of title. Main property right is the right that links the object (Section A) with the subject or person (Section B), who may be individual persons or communities.
- Information on proprietorship. It contains data related to the person of the owner (more usual) or holder of other main right insofar as available in the Land Register systems.
- Entitlement. Information about entitlement comprises substantial entitlement, the act or contract which is basis of the acquisition for the owner (e.g. sale, swap, inheritance), and formal entitlement, deed of acquisition of the owner.
- Restrictions. Information about restrictions comprises those ones related to the person of the owner (not restrictions on properties or plots) such as incapacity, insolvency or stemming from trusts. Also may comprises information about conditions antecedent (suspensive) or subsequent (resolutory) insofar as affecting to the main right registered.
- Price of acquisition.Information on the price paid by who registered owner is as long as available and admitted by data protection policy.
Methodology and Semantics in Section “B”
For the purpose of this section some basic concepts have been agreed between the EU land registry organizations in order to place the different sets of legal information.
It is important to underline that these semantic concepts are created and agreed for the specific purpose of this project, so the hereinafter definitions may or may not match to specific national legal institutions in each MS. They are conceived as broad terms to tailor as many systems as possible and, consequently, each MS will have to clarify their own specialities in the reference information and glossaries that must complete the template
Starting from the basic categories proposed in the Questionnaire, we tried to develop some basic placeholders that could embrace all pieces of information that usually are located in section B. After reading the answers, the initial proposal has been refined. Some of the proposed categories like Apartment right, lease were moved, not with discussion, to other sections of the template, while other like co ownership or matrimonial property regime were embrace under broader categories. As a result, six basic placeholders are proposed as follows.
Following these six main semantic concepts there must be subsequent categories. Those are not presented here until an agreement is achieved on these basics. How many subcategories must be created within each placeholder is something to be agreed: the creation of specific subcategories may depend on whether there is a legal institution that is acknowledged by a minimum number (to be agreed) of LR systems or whether it is a basic/nuclear institution within certain registration systems. Otherwise, specifics would be place under the generic box with free text that should be placed under each category.
1. Main (Or Primary) Registered Right /Class Of Title
Describes the kind of property right on the object (immovable asset) described in section A which “had opened” the “real folio”. A real folio is an individual file, with its own number, opened to a specific immovable asset, where all affecting property rights are registered in chronological order.
The most frequent right will be the right of ownership: «Ownership» is the most comprehensive right a person, the «owner «, can have over a property, including the exclusive right, so far as consistent with applicable laws o rights granted by the owner, to use, enjoy, modify, destroy, dispose of and recover the property.
However in some jurisdiction property rights others than ownership are suitable for opening a new file in the register, that is the case of a long lease, a public concession on a public domain immovable asset, a superficies right, even possession etc..
What is essential is that the right to be placed in this box must be the property right that opens a new folio and yet is considered a primary registered right over the immovable asset, so limited property rights can derive from it, and would be registered under the same folio.
2. Information On Proprietorship: Holder Of The Main Registered Right/ Owner
Holder is the person, either a natural person or a legal entity, entitled to the property right describe in B on the object described in A by disposition of law or by a legal act (a contract, succession, prescription). The holder is the person entitles to the right and also empowered to act the right.
The holder place in this section B is called the proprietor is entitled to the object describe in section A with the main property right described in the aforementioned box The holder of the right placed in section B is the person entitled to the primary registered right. In a majority of cases this main registered right is ownership, and the proprietor is the owner.
Examples: if the property right is ownership, the holder of the right is the owner, if the right is a usufruct the holder of the right is the usufructuary, if the right is a lease it would be the leaseholder-
– INDIVIDUAL/NATURAL PERSON
Is a human being, already born or at least conceived, who is granted by national law with legal capacity and who is entitled by law to hold rights in the land registry.
Set of identification data:
All these sub categories should be defined using the semantic tools from the core person vocabulary ISA
– LEGAL PERSON/ENTITY
Any legal person, regardless its form, aims and means, but with its own legal personality, different to their members’, and capable to hold rights in the register and to act them. A legal entity entitled to a registered property right.
It comprises companies, Associations, Foundation, Charities and other legal entities to which law confers legal capacity to act and hold rights, claims and obligations.
Set of identification data. All these sub categories should be defined using the semantic tools from the core business vocabulary (ISA)
– COMMUNITY/ CO OWNERSHIP
When the property right is held by two or more persons simultaneously and whose rights to the object are of the same nature and confer same kind of powers, but limited by the right of the other holders there is a COMMUNITY over the right. When the right hold in common in the aforementioned situation is the right of ownership the community is called CO OWNERSHIP.
A community on a property right could be classified and registered in two different manners depending on the existence or the lack of shares in the community.
Joint ownership.-Property is owned jointly by two or more persons but the owners have no separate interests and without shares. They have the same interest in the property vested in them pro indiviso. Each owner can not dispose separately but jointly with the rest of the owners of the whole right.
Or community of shares.-Each owner has a pro indiviso share over the right which can be dealt with separately and the right to call for the property to be divided at any time.
– SHARE
The share is a proindiviso part of the whole property right held by two or more owners. It is represented by a figure that shows mathematically the portion of the whole right which is conferred to each co-owner. It does not confer a direct power on any specific part of the immovable object neither powers to any of the shareholders on the entire right.
Example: Mr Smith is owner of ½ of the property. Mr and Ms Jones are owners of 25% of the property.
Additional/optional features of the share (to be developed by each Member State):
– Usually the sole share could be the subject matter of a disposition act or a security right. So each co owner can dispose of his7her share of the right without needing the consent or cooperation of the other co owners.
– Each share shall be recognised as an independent whole and as the subject of independent ownership rights for each separate shareholder (Greece)
– Confers the holder the right to claim for the division of the asset or the cease of the community
– Entitles the holder a pre- emption right in case of transmission of the other shares
3. Entitlement
Reflects the grounds of the proprietorship
For the purpose of the template Entitlement comprises two subcategories:
– Acquisition act /contract /disposition
– Acquisition document / Deed / decision.
A) SUSTANTIVE ENTITLEMENT = LEGAL GROUND
According to the Oxford dictionary entitlement means “The official right to have or to do something.” Taking into account this meaning and for the purpose of the template, entitlement could be used to designate not the right vested to the person but the legal act, decision or disposition that empowers him/her to the right, that is the legal ground for the acquisition of ownership or other property right.
The legal ground is not always reflected in the land books, and even it has different consideration depending on whether the civil system is casual or abstract. It could be just an abstract consent expressed by the previous owner in order to modify the registry, or it could be the expression of the legal act, (contract of sale, succession…), by means of which the right has been acquired. Even more, some legal systems, although causal systems, demand a specific document and formalities for the transmission of the property right on land, the conveyance act, which is different from the contract of sale.
B) FORMAL ENTITLEMENT = DOCUMENT/INSTRUMENT
But the word entitlement comprises not only the legal grounds for the acquisition but also the formal document/ instrument used to perform the transmission, and presented to the register as evidence for registration of the right in the land books. In this case the entitlement would include the deed of transfer, the document containing the contract and signed by the parties, the judicial decision, the certificate of inheritance, the document congaing the sharing out of the estate. Or the document containing the abstract consent of the former proprietor for the modification of the registry (Einigung).
The acquisition of ownership on immovable assets, called conveyance, is usually a very formal process that could involve different stages and different documents, starting from the contract of sale/ swap signed by the interested parties and finishing with a formal document of transmission. This specific conveyancing document, called “deed”, is usually very formal and contains certain and restricted pieces of information and declarations established by law, and it is the only document to be registered in the land books. In these cases, both documents the contract and the deed of transfer are needed to transmit the immovable asset, but only the latter is presented in the Registry and reflected in the land books. The formal entitlement will be the document taken into consideration by the land registry to enter the right of the proprietor in the land books.
4. Restrictions
Restrictions that affect directly the holder of the right and limit his/hers powers of disposition, which derive from his/her personal capacity ( minority, legal incapacity derived from insanity, guardianship), legal capacity (bankruptcy, punishment of disqualification…) or restrictions derived from a legal relationship like an specific stipulation posed in the acquisition title, (contract of sale, last will) will be considered the specific subject matter of section B, and will be published in this section near the name of the owner to make clear that there are limitations in the disposition powers of the proprietor imposed by reason of his personal consideration.
From the land registry perspective they are also considered restrictions any kind of order, notice, caveat, usually reflected by a provisional entry in the land book, that limits o prevents from writing a new entry with regard to the same title deriving from a legal act performed by the registered owner.
On the contrary:
– Restrictions in the primary right derived from secondary rights (an usufruct is a restriction with respect to the owner’s power to enjoy the asset, a right to way could also be considered a restriction of full ownership), will be considered and autonomous secondary property right rather than a restriction on the primary right, so they will be placed in C section as a proper limited property right (iura in re aliena)
– Restrictions in the powers of the owner imposed irrespectively of his /her personal qualities or circumstances but derived directly from the special nature of the object will also be placed in section C as a general rule. However, in some circumstances they could be also considered a quality of the asset and so they could be placed in section A.
CONDITION
A condition is a future or uncertain event, or on a past event of which the interested parties are unaware, place in the acquisition title of the owner whose performance produces the effect of:
– Suspending the acquisition of the property right: Precedent or antecedent/ Suspensive
– Termination or loss of the right: Subsequent/ Resolutive
5. Price / Value
When the acquisition of the right derives from an act for valuable consideration the price is the sum of money paid by the purchaser to the seller. If it is acquired by means of a gift or succession from previous owner, the value given in the document to the right transferred.
II.PROPOSED RULES ABOUT “INFORMATION OF OWNERS”
PROPOSED RULE I
INTERSECTION BETWEEN SECTION A AND SECTION B:
Section A describes the object of the right, Section B defines the right.
The object affected by the property right is an immovable asset either by nature or by a legal fiction. In this last case, some reference in section A to the right posed in section B must be done to link them, since the object is created, described a limited by the right.
PROPOSED RULE II
THE MAIN PROPERTY RIGHT
The property right placed in B must be the main right of the folio, the right that creates the new file, the folio. It represents the most comprehensive link between the object (A) and the subject (B) settled in the folio. It is also the primary right of the folio, from which the rest of limited property rights derived.
A specific box to define this property right must be envisaged.
We could name the box the (folio/register) main right/ the title, and it will indicate the nature of the property right.
PROPOSED RULE III
TRUST
Trust should not be a specific category of main registered right; on the contrary it should only be reflected in the template by means of a restriction placed within section B.
PROPOSED RULE IV
INTERSECTION BETWEEN SECTION B AND C: THE LIMITED PROPERTY RIGHTS
Any new property right derived from the main registered right which is not suitable for the creation of a new folio should always be considered as a secondary right, and according to this hierarchical criterion, should be posed in section C as a iure in re aliena, while the “main property right”,( whatever it has turned to be once deprived of the new right ), must remain in section B.
PROPOSED RULE V
PLURAL PROPRIETORSHIP
A specific box will be created in the proprietorship area of Section B to express the type of community under which the several proprietors/holders hold the right.
Although this template can not cope with a comprehensive list of communities, a basic subdivision could be made between communities with shares, communities with no shares and other type of communities.
PROPOSED RULE VI
RESTRICTIONS
Section B will only hold personal restrictions of the proprietor.
Restrictions in the power of disposition of the owner derived from his/her personal capacity (minority, legal incapacity derived from insanity, guardianship) or legal capacity (bankruptcy, trust, spouse’s consent), which are either imposed by a judicial order, by the legal act of acquisition or in general by law or statute irrespectively of the object, will be considered the specific subject matter of section B, and will be published near the name of the owner to make clear that there are limitations in his/hers disposition power.
PROPOSED RULE VII
WHERE TO PLACE MATRIMONIAL PROPERTY REGIME
Both spouses have participated in the acquisition of the right
– Both are entitled to the right. It is a typical community case with two holders of the right in section B proprietorship
Only one spouse has participated in the right’s acquisition act:
– REM establishes a community between spouses: the other spouse acquires a property right (not only a credit or an interest) and is entitled to the asset. The name of the spouse and REM should be place in proprietorship subsection.
– The other spouse is not owner of the immovable asset, but his/her consent is demanded to perform any legal act. REM should be reflected as a restriction in the powers of the owner and name of spouse must be reflected in the restriction subsection as restriction by disposition of law or by matrimonial contract
– The matrimonial property regime does not affect the title and the powers of the acquiring spouse: Nothing will be reflected in the template
