Land registries and the EU space of freedom security and justice

Gabriel Alonso

Presentation

ELRA stands for European Land Registry Association. It is a nonprofit association set up in 2004 by 12 European land registry organizations and currently made up of 30 members, public sector entities administering Land Registries and professional associations of registrars, in 23 Member States. ELRA is seated in Brussels.

The primary purpose of ELRA is the development and understanding of the role of land registration in real property and capital markets. ELRA focuses on legal aspects of land registration and property rights in immovable assets.

ELRA is fully committed to work on behalf of Land Registries in Europe in cooperating with the EU institutions. ELRA is in fact supported by EU and significantly funded by the Civil Justice program of the European Commission.

EU action in the area of Justice is already reaching the National Land Registries

The increase in mobility of Europe’s citizens within the limits of the Area of Freedom, Security and Justice also means that an ever greater number of real estate properties are acquired by European citizens in other States of the Union.

Thus, according to sources at the European Commission, in 2002 and for an estimated population of 5 million non-national residents, more than 2.5 million items of real property belonged to couples resident in a place other than where the item is located.[1] Although we do not have a current figure for real property in this situation, it must be assumed to be much greater in a Union comprising 27 Member States where more than 12 million of its 500 million citizens are resident in another country.

Every time citizens and companies carry out transactions with respect to these items in legal systems other than their national one, they have to face greater difficulties in exercising their rights, there is a duplication in procedures that leads to lengthier delays and higher costs and, in general, a greater degree of legal uncertainty for those operating the system.

The role of the Land Registry

The Land Registry is the instrument established by the States to protect real rights and imbue trade with legal certainty, through the disclosure of legally valid, legally effective information about ownership and about other real rights. Land registries are not mere databases but legal institutions. Registration publicity is not mere information, but qualified information, reliable information with legal value and effects.

Land registry systems protect citizens` fundamental right of ownership and provide legal certainty in dealings with immovable property, setting up the conditions for the development of an efficient and more transparent market. This has been true for the last decades at national level. Now the challenge is to expand it beyond national borders, and the electronic register and secure communication platforms provide a good opportunity for this.

The starting point

To analyse the action of land registries in the European area and their contribution to reinforcing the certainty of real estate transactions with transnational components, account must be taken of the following characteristic factors:

a) In each Member State, the Land Registry occupies a different location in the State’s structure. In Germany and Austria, the registry is set within the framework of the judicial system. In France and Belgium it forms part of the Governmental Administration depending on the Finance Ministry. The registry may also be set up as an independent government agency, as (for example) in the Netherlands. In Italy and the UK, for historical reasons, there are different land registry systems in different regions. As well as different institutional frameworks, there is no agreement about the ministry which is responsible for the Land Registry. In most states it is either the Justice or the Finance Ministry, but (for example) in Hungary it is the Agriculture Ministry and in Sweden the Ministry of Social Affairs. In the UK, the land registry in England and Wales is an agency reporting to the Business Ministry, while the land registries in Scotland and Northern Ireland are part of the autonomous regional administrations. This disparity makes any pan-European coordination of registries very difficult.

b) Land Registries are very closely linked to the principle of lex rei sitae, the principle of international law which says that immovable property is governed by the law of the place where it is situated, and are governed by rules deeply rooted in national legal tradition. This demands full respect for the principles governing the national legal and registration systems, in view of their exclusive jurisdiction in matters affecting in rem real estate rights. This approach has been confirmed by recent instruments passed in the civil justice area, like Regulation 650/2012 on Successions and Wills which excludes from its scope the nature of rights in rem and any recording in a registry of rights in immovable property.[2]

c) In all Member States there are Land Registries pursuing the same goal: legal certainty. And yet, not all registries have the same organisation, the same requirements and the same effects, and not all registries dispense the same degree of protection. For example, some merely record and protect rights created by a deed, while in other systems the process of registration itself creates additional rights.

Having those factors in mind, we can understand that on-line Land Registry services can only be effective at cross-border level if they are accompanied by parallel actions that enable citizens and professionals to use effectively the information delivered by the electronic systems. Since not all Land Registries provide the same effects, the risk of giving misleading information is high and may neutralize the efforts made by the systems to be accessed at cross border level.

The ELRN (European Land Registry Network)

It has been considered that networks of legal professionals have an important role to play in the proper functioning of the EU legal space. The EJN is a major example of this cooperation framework. But due to the institutional disparity mentioned above, after ten years Land Registry officials are largely outside this assistance network. ELRA, the largest European Association of Land Registries, is in the best position to coordinate action in this field.

The ELRN (European Land Registry Network) was set up in 2010 among ELRA members. It was designed to resemble the EJN, in order to facilitate mutual cooperation and even possible future integration. Currently twenty two ELRA members from 18 Member States have joined the Network. Each organization appoints a registrar, that is, a land registry officer expert in property rights and land registration, as its contact point for the Network.

The Network is coordinated by a working team within ELRA, and it has a public and a private area.

• The public area is devoted to the general public and its purpose is to establish and maintain an information system for the public via an ELRN website. This part of ELRN action is being developed in close cooperation with EULIS, although the information delivered by ELRN has a wider and deeper scope than EULIS’s reference information.
• The private area comprises tools for internal cooperation between registrars. The scope of cooperation includes facilitating contacts with local authorities issuing cross border documents that reach Land Registry offices. It also includes the exchange of information between registrars about domestic law. The contact points also receive specific training on EU law.
• At a second stage the Network will be opened for cooperation with EU authorities and legal professionals. The purpose of this cooperation is to provide them with adequate knowledge for a proper understanding of land registries.

It will also be the task of the contact points to advise EU authorities, judges, notaries and other legal professionals about how to draft documents in a way that complies with local land registration law, so as to ensure the entry of the relevant acts in the land register.

The ELRN will use electronic tools to communicate. It has already set up a web site linked to ELRA´s, to which a link has been given in the latest release of the E-justice portal. For the moment, and due to the limited resources at its disposal, the ELRN working language will be English.

The contact points will hold meetings at least every six months to design the fact sheets containing land registry reference information, to discuss common issues and to receive training and updated information on EU legal instruments.

The aim of the ELRN is to complement the single point of access to the EU land registries within the E-justice portal, so that authorities and legal professionals would be able to obtain direct and personal advice from the official experts of the land registry organizations. This action will enhance legal certainty in the immovable traffic within the European space for the benefit of citizens who are at the centre of EU activity.

[1] Study in comparative law on the rules governing conflicts of jurisdiction and laws on matrimonial property regimes and the implementation for property issues of the separation of unmarried couples in the Member States, 30 April 2003, ASSER-UCL Consortium commissioned by the Commission.

[2]Regulation (EU) No 650/2012 of the EP and the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession, Art. 1 par. 2 (k), (l).