Legal effects of Registration

A) Internal effects: effects to the right itself and the entitlement

a. Registration and the process of transfer/acquisition of property rights

Constitutive vs. declarative:

In general constitutive.
Exceptions: foreclosure sale, inheritance, usucapion (adverse possession)…

Compulsory vs. voluntary

In general compulsory – but without any penalties

b. Effects to legitimize the owner

Legal presumptions. Registration as evidence of the right

The registered owner has the full authority of disposals (for rights that are dedicated to the owner).

Effects of registration and possession: adverse possession

Adverse possession can publicly be noticed when the civil action has been filed (will be remarked in the entity).
Adverse possession is a rather complicated issue – especially in relation with good faith.

Remedies and procedural actions derived from registration: actions derived from registration.

Civil actions in relation with registered rights (eg: ownership, mortgages, easements etc.) may handicap the owner (of the registered right).

B) External effects: effects to third parties

Negative effect: opposing effect of registered rights against non registered rights.

“First coming – first milling” Somebody who is registered has the full capacity of disposal.
Some unregistered rights have to be inquired (eg: fees for the municipalities, annual parcel taxes …) because they have legal priority in case of seizure.

Positive effect. Indefeasibility principle. Bona fides effect. Requirements

Good faith: You can legally trust in the registered right as long as you have not been in the position to “easily could get notice” of a special legal fact (see: easements that can be physical seen on the facility …).

Third parties can object a registered right for three years after registration.

C) Different kinds of registration and its effects:

a. Class of title

Full titles: Sales contract, certificate of inheritance, mortgage contract, and easement contract …
Enables to register the full right – in German: Einverleibung

Support documents: certificate of marriage, certificate of death, birth… document on real estate transfer tax.
They give evidence for a special legal condition (birth, death …)

b. Type of entry

Einverleibung: full right
Vormerkung: full right with formal condition
Anmerkung: Remark especially for third parties, disposal restrictions, remarks of selling …
Ersichtlichmachung: some advice on legal facts (eg. local taxes payed …)

c. First registration limitations

In Austria first registration is done by 100%.

d. Type of information: physical data/ legal data, associated data…