Encumbrances (Section C)

MORTGAGE

Original name: HYPOTHEEK, HYPOTHÈQUE

Definition of this right: A hypothec is usually a conventional security right, although there are a number of legal hypothecs.
From a ‘functional point of view’, a lien operates as a hypothec.

Type of right according to national classification: Security right

1.1. With respect to the mortgage liability, the Belgian mortgage system prepares in general two options:

a) Extracts include itemized liabilities arising from the loan, so that can be distinguished amount of loan and the other liabilities due to interests of the loan or others, guaranteed by the mortgage. (E.g. The loan is 100,000 and has agreed interest at 20,000 and mortgage cover up to 10,000 from other debts related to loan. LR extracts shall include separately information about these three types of debt).

b) In the event that a mortgage guarantees a not monetary obligation (not a loan or other money debt), there’s an identification of this obligation in the extracts.

1.2.        Regular LR information in this system also comprises ordinarily:

a. Deadline of the loan or credit or other contract which is basis of the mortgage.
b. Deadline of the mortgage (an inscription remains for 30 years, regardless if the loan is payed back or not or the obligation is fulfilled, unless the strike out is demanded).
c. Name of the mortgagee or creditor.
d. Name of the mortgagor or debtor.
e. Deed whereby mortgage was constituted or awarded.

However, there should not be expected any information about the contract or basis of obligation guaranteed by a mortgage (e.g. a loan).

1.3. With respect to the mortgage rank (preference of the mortgage in comparison with other mortgages or encumbrances), this LR system has the following criteria:

a. Mortgage rank depends on date of registration of the mortgage, so whoever may ascertain mortgage rank taking into consideration the information on the date of registration of the mortgage.

In this LR system these are the following:

REAL SERVITUDE

Original name: ERFDIENSTBAARHEID, SERVITUDE

Definition of this right: Article 637 of the Civil Code (1804): A right of servitude is a charge on an immovable object for the use and utility of an immovable object of another owner (Van Erp and Akkermans, p 244).

Type of right according to national classification: The ‘label’ depends on the point of view:  if the servitude is considered from the point of view of the owner of the dominant land, the servitude is ‘a complementary right’ that allows the holder of the servitude to exercise certain rights on the servient land; if the servitude is considered from the point of view of the owner of the servient land, the servitude is a charge on the servient land.

USUFRUCT

Original name: VRUCHTGEBRUIK, USUFRUIT

Definition of this right: Article 578 of the Civil Code (1804): The right of usufruct is the right to use and enjoy an object of another in the same way as an owner himself, but on condition that the substance of the object is preserved (Van Erp and Akkermans, p 253).

Type of right according to national classification: The right of ownership minus the right of disposal.

OWNERSHIP

Original name: EIGENDOM, PROPRIETÉ

Definition of this right: Article 544 of the Civil Code (1804): Ownership is the right to enjoy and dispose of objects in the most complete manner, provided they are not used in a way prohibited by statutes or regulations.

Type of right according to national classification: Rights of use, enjoyment and disposal (ius utendi, ius fruendi and ius abutendi): the ‘starting point for all civil law property law systems’ (Van Erp and Akkermans, p 213) and ‘the grandest of all rights’ (Gardner and MacKenzie, An Introduction to Land Law(2015), p 14).

Observations: (We can (and should) use the translation provided in Van Erp and Akkermans (eds.), Cases, Materials and Text on Property Law (2012), p 215, since the definition in the French Code civil is (still) identical to the one in the Belgian Code civil, Burgerlijk Wetboek, see www.casebooks.eu/property.)

CO-OWNERSHIP

Original name: MEGE-EIGENDOM, COPROPRIETÉ

USE AND HABITATION

Original name: GEBRUIK EN BEWONING, USAGE ET HABITATION

Definition of this right: The rights of use and habitation are ‘mini-usufructs’ (restricted usufructs).

EMPHYTEUSIS

Original name: ERFPACHT(RECHT), DROIT D’EMPHYTÉOSE

Definition of this right: Article 1 of the Emphyteusis Act of 10 January 1824: The right of emphyteusis is the property right to have the full enjoyment of a plot of land that belongs to another person. The holder of the right of emphyteusis has the duty to pay an annual ‘rent’ or ‘canon’—in money or in natura—to the owner of the plot of land, in recognition of his right of ownership.

Article 1 provides explicitly that ‘The title of the holder of the right of emphyteusis must be entered in the land register’.

According to article 2 of the Emphyteusis Act, the minimum duration of the right of emplyteusis is 27 years and the maximum duration is 99 years

Type of right according to national classification: The emphyteusis is catalogued as a right in rem of long lease (Van Erp and Akkermans, p 273) (pardon the contradictio in terminis: a lease is a right in personam, a personal right and not a property right).

SUPERFICIES

Original name: OPSTALRECHT, DROIT DE SUPERFICIE

Definition of this right: Article 1 of the Superficies Act of 10 January 1824 (amended in 2014): The right of superficies is the property right to have—i.e. to be temporary owner—‘constructions’ (‘buildings’) ‘on’ the plot of land that belongs to another person.

Article 3 provides explicitly that ‘The title of the holder of the right of superficies must be entered in the land register’.

According to article 4 of the Superficies Act, the right of superficies cannot be constituted for more than 50 years.

Type of right according to national classification: Limited and temporary ownership limited in time to 50 years.

This information includes LR entries or notices related to restrictions decreed by judicial orders which mean either a claim on the property, or a challenge on the registered title, or an attachment of the property to debts as a result of judicial procedures, etc.

In this system:

a) Information on judicial restrictions or charges forms part of the regular land register extracts

b) Means of formal publicity ordinarily contains information about the judicial order that leads to the registration of notices or caveats; about if notices or caveats are temporary or indefinite entries, or warn about this issue.

For purposes of the information, orders of attachment or seizure decreed by administrative authorities lead to notices or caveats.

The authority, raising the tax liability (fiscal burden), normally has the power to ask for the inscription under form of a mortgage. Further on in land register it is treated as any other mortgage and consequently mentioned in excerps.