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

Compulsory vs. voluntary

b) Effects to legitimize the owner

Legal presumptions. Registration as evidence of the right

Effects of registration and possession: adverse possession

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

B) External effects: effects to third parties

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

Positive effect. Indefeasibility principle. Bona fides effect. Requirements

C) Different kinds of registration and its effects:

a) Class of title

b) Type of entry

c) First registration limitations

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

Belgian legislation only requires registration of authentic deeds concerning the transfer of real rights inter vivos.  A copy of the deed is kept electronically in a database.

The registrar has a passive role.  This results in the fact that registration does not add or deprives something of the contract. He only can refuse in a few clearly defined cases. The main role of the service is providing publicity on the transactions.

The registration (transcription) of these deeds – and of the court decisions for that matter – only intends to create legal effects vis-à-vis third parties. It does not affect the validity of the contract as such. Under Belgian law a contract comes into legal existence and becomes binding for the parties once the parties involved have agreed on the transaction (the ‘solo consensu’ principle). Registration of the contract does not change anything about the effectiveness and validity of the contract with respect to the parties

Third parties can deny the existence of a non registered deed for as far as there is no proof they are aware of its existence.

Claims for rescission of contracts of transfer of rights in rem and the ensuing courts decisions are also to be registered

Registration (transcription) is obligatory but does not have any constitutional effect on the agreement.

Due to the existence of a causal system proof of ownership of a Right in Rem can only be provided by prescription or a court decision.  Undisputed and undisturbed possession during a period of 30 years, eventually through successors in title, provides indisputable title. This period can be shortened when a defect title has been registered to 10 or 20 years.

In case of double transaction the first registration (transcription) decides on who becomes owner leaves the other one with a right to compensation.

There is also different legislation prescribing registration (transcription) of documents, mainly in the field of bankruptcy and seizure. Also rental contract for more than 9 years or including for more than three years of rental discharge has to.

Registration also activates a privilege in favor of the unpaid alienator to the amount unpaid. To that the registrar has an active role in registering the fact the same way as a mortgage.

Next to that excerpts of mortgage deeds can be presented by the creditor and are registered (inscription) in a separate register. The date of fulfillment of the formality determines the rank order.  Only through this registration in the register, the mortgage has effect with regard to third parties, even if they have knowledge of it. The lien remains on the property, no matter who becomes entitled until it is deleted, generally after paying the debt.

There is also possibility for a tax lien to be filed against the property by the internal revenue services. Also several laws give a privilege or a mortgage to certain persons on someone’s property.  They only get activated by registration (inscription) in the register.

Finally, special attention should be paid to the so-called «occult or hidden mortgage». In order to secure the payment of the inheritance tax, the State is entitled to register a mortgage against the real property belonging to the estate of the deceased. This mortgage becomes effective upon registration.

Registration of this mortgage has to be effected within 18 months after the day of death. This registration ranks on the day of death and it has priority over other registrations that may have been affected sooner in the course of the 18 month period