January 1, 2015 / Wim Louwman
Wim Louwman
CROBECO manager, Master’s in Dutch Law and former ELRA President
1. Introduction
From 2010 to 2014 the European Land Registry Association (ELRA)[1]carried out two projects to develop a simple conveyancing process for the purchase of foreign real estate that provides confidence in sufficient legal protection. The projects were named CROBECO (CROss Border Electronic COnveyancing) 1 and CROBECO 2. CROBECO 1 established a framework of rules and principles – i.e. a Crossborder Conveyancing Reference Framework (CCRF). Pilots learned that the CROBECO process is only possible when specialized notaries are involved and specific tools are developed to support these notaries. CROBECO 2 implemented these tools for Dutch and English buyers of property rights in Spain and Portugal.[2] As the tools are generic, CROBECO is also suitable for cross-border contracts in other EU Member States. In order to inform prospective users about this project, a description of the process, the legal basis, the role and skills of conveyancers and registrars, the tools to support them, and the expected future demand will be given.
2. The CROBECO process
The CROBECO process is based on a deed executed by a conveyancer in the foreign buyer’s home country. The deed is written in two languages: the buyer’s native language and the official language of the country in which the plot of land is located. Individual rights and obligations of both buyer and seller are governed by the laws of the country of the foreign buyer. This choice of the applicable law is possible pursuant to article 3 of the Rome I Regulation for contractual obligations[3] and article 14(1)(b) of the Rome II Regulation for non-contractual obligations[4]. By means of a choice of forum pursuant to article 23 the Brussels I Regulation[5], the parties decide that the courts in the home country of the foreign buyer have jurisdiction to judge on individual rights and obligations and compensation of damages. Because of the fact that the application of the Rome I and II Regulations and of the Brussels I Regulation was prioritized in the Civil Justice programme[6], the European Commission awarded both CROBECO 1 and 2 with an action grant. The CROBECO approach could be an incentive for prospective foreign buyers because it gives them a feeling of being better protected against the pitfalls that foreign buyers likely encounter. Examples of these pitfalls were listed in European Property Rights & Wrongs,[7] edited by Diana Wallis MEP and Sara Alanson. Without claiming to be exhaustive, Wallis mentions purchasing off plan, lack of bank guarantees, violation of planning legislation, lack of information or due diligence, insufficient preparation for local conditions, inconsistent application of laws and corruption or failed administration at local level. Apart from the advantages of a trusted process, CROBECO might be more efficient for the foreign buyer of a second home. He can visit a trusted notary ‘just around the corner’ in his home country. For a native seller from the country of the plot of land the CROBECO approach might also be interesting. By accepting applicability of the contract law and forum of a foreign country he makes his property more interesting for prospective foreign buyers. He can protect his own interests by reading the bilingual deed in his own language and consult a specialist on international law in his home country to advise about the consequences of for him foreign contract law.
3. CROBECO’s legal basis
Primarily, CROBECO contributes to a practical execution of one of the fundamental principles of the European Union, the free movement as laid down in article 3 (2) of the Treaty on European Union (TEU):
“The Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured in conjunction with appropriate measures with respect to external border controls, asylum, immigration and the prevention and combating of crime” .
The above mentioned applicability of the choices of law of Rome I and II Regulations, are considered the cornerstones of European conflicts of law.[8] CROBECO is based on the assumption that these law choices cannot change existing property rights and conveyance systems. Pursuant to article 345 TFEU[9] (ex article 295 EC), “the treaties shall in no way prejudice the rules in Member States governing the system of property ownership”.
A survey conducted by ELRA in 2009 learned that in 50% of the ELRA Members States the registration of foreign deeds is allowed. One of these countries is Spain, in which the registration of a German deed was ultimately upheld by the Supreme Court.[10]
The Supreme Court referred to Article 1462 of the Spanish Civil Code, which does not require a deed executed by a Spanish notary and considered that:
– A formally valid deed granted by a foreign notary should have the same effect as one notarized in Spain.
– A refusal of foreign deeds cannot be approved under the current understanding of the freedom to provide services at the European Union level.
– To require the involvement of a Spanish notary would mean an unjustified limitation to the freedom of transfer of goods.
The supremacy of EU law is clearly recognized by the European Court of Justice (CJEU)[11] and raises the question of whether the refusal of foreign deeds in EU Member States complies with article 49 TFEU involving the freedom to provide services and the aim of the EU services directive.[12] Strictly, pursuant to article 2, the services directive is not applicable to notaries, but this primarily involves the question whether an other lawyer could take over. In my opinion it is not clear whether this also involves foreign notaries. Based on the aim of as well the services directive as regulations Rome I and Rome II, a foreign buyer should have a right to choose the services of a notary from his home country. The Italian Giudice di pace di Matera referred a case to the CJEU for a preliminary ruling on this topic. They raised three questions that could be summarized as follows:
Does the Italian law on notarial practice read in conjunction with the Italian civil code provide for an actual monopoly situation?
Does the Italian law on notarial practice provide for a violation of the prohibition of monopoly in the provision of services in the European Treaty (article 53 TEU and article 37 TEU)?
Provides the Italian law on notarial practice read in conjunction with the Italian civil code a violation of the ban on measures that provides citizens of certain Member States in relation to citizens of other Member States a disadvantage in access to the services (34 TEU en 35 TEU).
Unfortunately the case was declared inadmissible as answering the questions, according to the CJEU, was considered of no importance to the outcome of the proceedings.[13] So for the time being, registrars have to comply with their national legislation. For example, in the Netherlands foreign deeds are refused because national law obliges registrars to do so.[14]
4. Required role and skills of registrars and notaries
4.1 Neutrality
Registrars and notaries should adopt a neutral attitude to the registration of foreign deeds as well as to the choice of law. Determining the desirability of existing legislation should not fall within their scope. This approach is in accordance with Common Principle 2.4 of the European Notarial Code of Conduct: «the notary has a duty to inform the parties of the content and effects of the instruments concerning them, and to advise them fully». In addition, pursuant to the same Common Principle, «the notary shall research the most relevant ways to achieve the result desired by the parties, in accordance with the applicable law«.
So the notary should inform a cross-border buyer about the possibility to opt for the contract law and the forum of the home country. Apart from the fact that the notary has to provide expert legal and consumer protection advice and guidance before the contract is signed, he has to inform about the differences in national legislation and European legislation. When a notary feels that he does not have sufficient knowledge in this specific field, he could refuse to execute the deed and instead refer to a more specialized colleague. Registrars should adopt the same neutral approach as the notaries. If permitted by their national law, they have to accept foreign deeds, also when the choices of Rome I, Rome II and Brussels I Regulations are made, they have to accept a choice for foreign contract law and foreign jurisdiction on contract law. If a registrar is asked to provide information about the legal requirements for registration of foreign deeds, he has to provide the same support as he should do in case of a national deed. If necessary, registrars have to seek advice from legal scholars and foreign colleagues, but ultimately the registrar in the country of the plot of land bears responsibility.
4.2 Understanding of legal differences
Conveyancer and registrars have to be familiar with relevant European and national legislations. Of relevance are the differences between deeds and title systems, between abstract and causal systems and between comparable real rights under national law.
In countries with a deeds system, such as the Netherlands, Belgium, and Luxemburg, received documents are fully disclosed (recorded) in the land register. The names of supposed titleholders, rights and identifications of properties are listed in an index system that provides access to the land register and is designed to trace the recorded documents[15]. Conveyancers who assess these documents must draw their own conclusions about existing titles.
In countries with a title system, by registering persons as being entitled to a real right, the registrar grants a title with third party effect. This system exists in Spain and Portugal. It makes it easy for Dutch CROBECO conveyancers. Unlike in the Netherlands, they do not have to assess deeds in the land register but can rely on the name of the listed owner.
In causal systems, prior to the transfer, an obligation to transfer has to be continued by an act of transfer. The type of this act can be different. For example in the Netherlands, a contract of sale is continued by the recording of a specific deed of transfer in the land register. In Spain, a contract of sale is continued by a symbolic or material act of transfer. The contract of sale is registered in the land register to acquire third party effect. In abstract systems, ownership is acquired by registration of an independent contract of transfer in the land register. Compliance to a prior obligation is not demanded. The choice of law provided by the Rome I and II Regulations made some people assume that the conveyancing system of the country of the foreign buyer was exported to the country where the plot of land is located[16]. They neglected the difference between property rights and obligations. The seller and the foreign buyer make a choice of law concerning individual rights and obligations related to the transfer of property rights. The transfer of property rights itself has to comply with the law in the country of the plot of land. In fact, the result of the choice of law is that two national laws become applicable: the foreign law concerning obligations and the lex rei sitae concerning property rights.[17]
In common law countries, comparable rights on immovable properties are governed by obligations. In other EU Member States closed systems of real rights exist. Despite the sometimes comparable nomenclature in these countries, there are important differences. For example, in the Netherlands the types of limitations caused by a servitude are different from those in other Member States and an apartment right in the Netherlands corresponds to a share in a condominium, while in other Member States it corresponds to ownership of the apartment.
4.3 Collecting of information and fulfilling of formalities on local level
A foreign conveyancer has to collect different types of information from different local authorities. From land registers in most EU Member States information is online available in the national language. Some Member States provide the information also in English.[18] Other types of information are not available online and have to be collected at local offices. It concerns information from the Cadastre, Chamber of Commerce, and information from municipalities or other local authorities involving public limitations, overriding interests, and urban planning. Evidence of due payment of taxes and contributions to the association of a condominium have to be provided by the seller. Sometimes, prior to executing a deed, specific local formalities such as the collection of a tax ID number have to be fulfilled on local level. As a result, for the collection of this information and the fulfillment of formalities, a foreign conveyancer needs assistance on local level.
4.4 Verification of foreign electronic signatures
Registrars only accept electronic submitted deeds that are authenticated with a Qualified Electronic Signature (QES). A QES is generated by means of a certificate that provides evidence of the identity of the signatory. Issuance of these certificates requires the mediation of an Authorized Certification Service Provider (CSP). So called “root certificates” give proof of the identity of the CSP. After the installation of this root certificate, the computer system of a registrar can verify the authenticity of foreign electronic signatures that are generated with a certificate from this CSP. The European Commission publishes a list with information of national EU authorities that authorize CSP’s.[19]
5. The support for CROBECO conveyancers
ELRA has developed a system named NETPRO to support foreign conveyancers. NETPRO provides access to several professional networks. A network of land registries provides information about the national legal systems.[20] A repository with clauses provides examples of clauses in contracts of sale.[21] It contains clauses that are mandatory for registration in a specific country as well as clauses to protect foreign buyers in that country. Given the different risks of unknown liabilities, public limitations and charges, also these optional clauses vary from country to country. A network of “transaction assistants” offers foreign notaries an option to hire local specialists for fulfilling formalities and obtaining official documents on a local level. The obtained documents are authenticated with a QES by the transaction assistant and saved in a project box that is only accessible by the foreign notary. The system for hiring transaction assistants is managed by the Land Registry from the country of the involved plot of land. Spanish registrars have decided to limit access to previous authorized foreign conveyancers and previous authorized members of the Spanish organization of gestores administrativos[22], who provide the same type of assistance to Spanish notaries. Access is allowed after verification of identity by means of certificates for generating a QES. After entering the system, an authorized foreign notary selects a transaction assistant on a map and proposes a project. In this proposal, apart from tailor-made services, he selects one or more of the following services:
- obtaining official documents from the land registry with the latest registration;
- obtaining official documents from the cadastre involving the latest registration;
- obtaining official documents with all existing urban and environmental limitations;
- obtaining official certificates of habitability land;
- obtaining official documents that provide evidence of paid local and regional taxes;
- obtaining official documents with a tax number and of paying taxes.
When the transaction assistant has accepted the proposal, he uploads a draft of a service contract that is authenticated with the QES of the transaction assistant to the projectbox in NETPRO. The foreign notary downloads this signed contract, signs it with his QES and uploads it again to the projectbox. The signing technique is called «embedded signing», which means that the parties receive an integrated file of documents and signatures. Each party has to install the rootcertificate of their counterpart to verify the signature and archive it in his own archive to provide evidence of the agreement in case of a future dispute. Providing of this type of evidence is out of scope of the land registries.
Under national law, a foreign notary has a responsibility against the parties in the conveyance contract. He is liable for mistakes of the transaction assistant and cannot be relieved of this liability in a contract with the transaction assistant. For that reason a clause is inserted into the contract that moves the obligation to pay compensation in case of mistakes to the transaction assistant, who accepts the obligation to have an insurance with a cover of €3.000.000 for each of these cases. The amount of the fees and the moment and method of the payment is left out of the standard contract. This is considered to be a matter between the two contracting parties.
6. The future of CROBECO
Now that real estate markets in southern European states are starting to recover, the CROBECO process might enjoy an increasing demand. This is expected by Arruñada from Pompeu Fabra University in Barcelona, who performed a cost/benefit analysis of CROBECO.[23] He compared the CROBECO process of direct submission of foreign deeds by foreign notaries, with the EUFides process designed by the European association of notaries.[24] The EUFIDES cross-border conveyance process is based on a deed executed and submitted by the local notary after intervention by the foreign notary. Arruñada concluded that the CROBECO process allows substantial savings on transaction costs[25], without a decrease of legal security because the identity of the parties is already verified by the foreign notary. Arruñada expects increasing demand for CROBECO for the following three reasons: the segmented market, the seniority of foreign citizens, and the demand for second homes. In coastal areas, the market is partially segmented by nationality. In these communities a particular nationality is predominant and persons often buy and sell to citizens of the same state. For them the home country based CROBECO approach is most attractive.[26] The substantial proportion of foreign residents, who are senior citizens[27] is of relevance because they are more likely to demand cross-border transactions in order to sell directly before they pass away, or indirectly, for succession transfers to their heirs. For an increasing number of buyers of second homes, who remain residing in their home country,[28] the convenience of conveyance in the country of origin is of relevance. Finally, as foreign buyers prefer mortgages from their home country, CROBECO could also increase competition on the mortgage market and make mortgage banks from the country of the plot of land accept the choice for foreign contract law.[29]
Because of these expected developments, the CROBECO support for foreign buyers should remain available. Only a few adjustments are necessary to make CROBECO tools suitable for use in other countries than England, the Netherlands, Portugal, and Spain. The main task for these new CROBECO partners is the development and implementation of a national system for transaction assistants as described in paragraph 5. It will allow for a future-proof system for the support of cross-border contracts by foreign conveyancers.
[1] The mission and primary aim of the international non-profit association (association internationale sans but lucratif (AISBL)) European Land Registry Association (ELRA) is to promote «the development and understanding of the role of land registration in real estate and capital markets». For further information, please visit: Website ELRA (http://www.elra.eu).
[2] For further information on the Cross‑Border Electronic Conveyancing (CROBECO) project, see Website ELRA, Crobeco (http://www.elra.eu/crobeco). Several video clips featuring key stakeholders are also available online: Website ELRA, Latest news of CROBECO(http://www.elra.eu/category/crobeco-2).
[3] Regulation (EC) 593/2008 of 17 June 2008 of the European Parliament and the Council on the law applicable to contractual obligations (Rome I Regulation).
[4] Regulation (EC) 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II Regulation).
[5] Council Regulation (EC) No. 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (Brussels I Regulation).
[6] European Commission: Directorate-General Justice, Specific Programme “Civil Justice” (2007-2013: Call for Proposals JUST/2011-2012/JCIV/AG: Action grants, (http://ec.europa.eu/justice/newsroom/files/jciv_action_grants_cfp_2011_2012.pdf).
[7] Website ELRA (http://www.elra.eu/wp-content/uploads/2014/01/EUROPEAN-PROPERTY-RIGHTS-2.pdf).
[8] See: Recital 11 of the Rome I Regulation (supra note 3).
[9] Based on a study of the sources of this article, which is derived from the Schuman Declaration, Akkermans and Ramaekers are of the opinion that this article only aims to protect Member States against foreign privatisation and does not block the developing of European property law. See European Law Journal 2010, p. 305 and WPNR 6992, 890.
[10] Website Poder Judicial Espana, Sentencia del Tribunal Supremo (Espana) STS No 998/2011 de 19/06/2012 (http://www.poderjudicial.es).
[11] Case C-6/64 Flaminio Costa v ENEL [1964] ECR 585, 593.
[12] Directive 2006/123 of 12 December 2006 of the European Parliament and the Council on services in the internal market.
[13] Case C-600/13 Intelcom Service Ltd v Vincenzo Mario Marvulli [2014] ECR I – not yet published.
[14] Article 3:31 of the Dutch Civil Code states that «where a statutory provision pertaining to registered property requires a notarial deed or declaration, it must be a deed or declaration of a Dutch notary».
[15] In some countries (e.g. the Netherlands) the index system is also used as registration of a cadastre for collecting taxes.
[16] In Zeitschrift für Immobilienrecht 2011, p. 840 Harald Wilsch assumed that a CROBECO contract for German buyers of real estate in Spain should mean that the Germans abstract system is exported to Spain and Spanish registrars should have to demand separate contracts of transfer.
[17] W. Louwman, Zeitschrift für Immobilienrecht 2013, p. 250.
[18] Three non-English countries provide information in English via EULIS (Website EULIS (http://eulis.eu/)).
[19] A list of authorized CSP’s is available at: European Commission, List of Trusted List Information as Notified by Member States (https://ec.europa.eu/information_society/policy/esignature/trusted-list/tl-hr.pdf).
[20] Website European Land Registry Network (http://network.elra.eu).
[21] Website ELRA (https://demonetpro.elra.eu/netpro).
[22] Website Ilustro Colegio Official de Gestores Adminitrativos de Madrid (http://gestoresmadrid.org).
[23] B. Arruñada 2014, “Cost and Benefits of Cross-Border Electronic Conveyancing”. ELRA, May 2014, http://ow.ly/BTPya (visited September 24, 2014).
[24] Website Notaries of Europe (CNUE), EUFides (http://www.notaries-of-Europe.eu/index.php?pageID=8033).
[25] Adding a local notary increases legal fees by 38 percent in England and 51 percent in the Netherlands. See note 23 page 10.
[26] For example during the period 2008 – 2013, 40 percent of German buyers, 37 percent of British buyers and 18 percent of Dutch buyers bought from a citizen of their own nationality. See note 21, table 4.
[27] See note 23, table 5.
[28] For example in Spain the proportion of non-resident buyers, which was 6.80 percent in 2010 increased to 16.55 percent in 2013. See note 23, page19.
[29] At the conference in Barcelona Mrs. Esther Nin, Legal Advisor of Banco de Sabadell and President of the Association for International Legal Studies (AEJI), confirmed that Spanish banks could create mortgages under foreign contract law as long as a direct foreclosure procedure in front of Spanish Courts remains, possible. Website ELRA, presentation No. 10 (http://www.elra.eu/crobeco-conference/#more-1686).
