The Land Registry ‘in matters of succession’

1. The Land Registry‘in matters of succession’ ELRA Brussels 2011

2. 1. Previously2. Two remaining issues3. The Land Registry Information form4. The registration of the Certificate ELRA Brussels 2011

3. 1. Previously The questionnaire on the Green Paper ‘Succession and wills’ Madrid 2010: the proposal for a Regulation ‘in matters of succession’ and the European Certificate of Succession The first questionnaire on the proposal for a Regulation Brussels 2010: information of the Land Registry and ‘reinforcing’ the European Certificate of Succession The second questionnaire on the proposal for a Regulation Meanwhile: Three reunions with the EU representatives Proposed modifications of the proposal for a Regulation ELRA Brussels 2011

4. 2. Two remaining issues 1. Information of the Land Registry (Art. 40(3) of the Regulation) Our mission: to devise a Land Registry Information form. Two points of view: the authority requesting information and the Land Registry communicating intelligible information. Two questions: What information does the Land Registry need to be able to provide information? How to communicate the information? 2. Registration of the Certificate (Art. 42(5) of the Regulation) Our mission: to produce fact sheets The Land Registry ‘in matters of succession’. The central issue: is the Certificate registerable? One question: the ‘scope’ of the Certificate: is the sharing out (or the distribution) of the estate included in the Certificate or does the Certificate ‘stop’ at the transmission of the estate to the heirs/legatees? ELRA Brussels 2011

5. 3. The Land Registry Information form (1) 3.1. The texts Art. 40(3) of the proposal for a Regulation: ‘For the purposes of this Chapter, the Member States shall grant access to the competent courts in other Member States, in particular to (...) the land registers.’ Art. 40(3) of the consolidated version (December 2010): ‘For the purposes of this Article, the competent authority of a Member State (i.e. the authority responsible for the register concerned) shall, upon request, provide the issuing authority of another Member State with information held in (...) the land registers, where such information could be provided by the competent authority for internal purposes.’ ELRA Brussels 2011

6. 3. The Land Registry Information form (2) Note on the relationship between succession law and property law in the future Regulation (April 2011): ‘(...) the authorities dealing with successions should have access to the relevant (land) registers of other Member States so as to be able to obtain accurate information on the status of the property located there and on the exact description of that property required for the purposes of registration.’ ‘To ensure smooth cooperation between authorities the Presidency suggests to craft the (...) Certificate (...) in such a way that it is made to include standard information necessary for registration purposes.’ In the meetings with the EU representatives, they stressed the importance of an easy-to-use form and standardised information. ELRA Brussels 2011

7. 3. The Land Registry Information form (3) 3.2. Two points of view The point of view of the authority that will issue the Certificate: The authority does not know the foreign land registration system (and will, naturally, be inclined to transpose the received information to the domestic system). For example, a lease in a civil law jurisdiction is a personal right (and is not entered in the land register), while in the common law, a leasehold is a property right. The information provided by the applicant will (sometimes or often ?) be more or less incomplete: ‘My deceased father or mother had a right (a property right? a personal right? a time-share?) in a house in Linares (Spain), but I don’t know the exact address and I could not find the deed’. What data do I have to communicate to the Land Registry in order to get the necessary information? Do I need to pay a fee? Will I be able to process the information and include it in the Certificate? And so on. ELRA Brussels 2011

8. 3. The Land Registry Information form (3) The point of view of the Land Registry: What do we need to start the search in the land register? I think the identity of the deceased and the identity of the property (address or (cadastral) identification number) could and should suffice ‘in matters of succession’. ELRA Brussels 2011

9. 3. The Land Registry Information form (4) 3.3. Two questions What information should the Land Registry provide? I think we cannot simply communicate the property rights and charges as entered in the land register. We should explain the nature and effects of these property rights and charges, so that the authority that will issue the Certificate can understand them and place them in his property law and land registration law. For example, if the deceased was not the owner but only the usufructuary of a house in Koksijde (Belgium) – as the widow often is – the usufruct ends and is not part of the estate. The authority that will issue the Certificate needs to know that. Another example. If the deceased was the joint tenant of a house in London, the ‘share’ of the deceased will not pass to the heirs but will pass to the surviving joint tenants (the right of survivorship, iusaccressendi). The authority that will issue the Certificate needs to know that. We should also provide a brief assessment of the information: the information is inevitably incomplete (e.g. some property rights and charges are not entered in the land register) and the property rights and charges should be further examined. ELRA Brussels 2011

10. 3. The Land Registry Information form (5) How to communicate the information to and from the Land Registry? There are four possibilities: The request of information could be sent directly to the Land Registry. We could use the EULIS transport facility. The request could be sent to the ELRA Network and dispatched to the Land Registry. The request could be lodged in the e-justice portal. I think only options 3 and 4 are realistic (short-term) possibilities, inter alia, since we need also to address the billing issue. ELRA Brussels 2011

11. 3. The Land Registry Information form (6) The Land Registry Information form is divided in two parts. The first part is to be filled in by the authority that will issue the Certificate. It contains three boxes: the authority requesting information, the identification of the deceased and the identification of the property. The second part is to be filled in by the Land Registry. It contains: The identification of the Land Registry providing the information. The identification of the property rights and charges entered in the land register (I used the classification of the Draft Common Frame of Reference, VIII.-1:202 to VIII.-1:204) and tax-related issues. It could be useful to annex a certificate (an extract) or a copy of the land register. The assessment of the information. ELRA Brussels 2011

12. 4. The registration of the Certificate (1) 4.1. The texts Art. 42(5) of the proposal for a Regulation: ‘The certificate shall constitute a valid document allowing for the transcription or entry of the inherited acquisition in the public registers of the Member State in which the property is located. Transcription shall take place in accordance with the conditions laid down in the law of the Member State in which the register is held and shall produce the effects specified therein.’ Art. 42(5) of the consolidated version (December 2010): ‘The Certificate shall constitute a valid document (...) for the transcription or the recording of the inherited acquisition in the public registers of the Member State in which the property is located, provided that it contains all the information required for registration by the law of that Member State. The transcription or the recording as such shall take place in accordance with the requirements laid down in the law of the Member State in which the register is held and shall produce the effects specified in that law.’ ELRA Brussels 2011

13. 4. The registration of the Certificate (2) Note on the relationship between succession law and property law in the future Regulation (April 2011): ‘The Presidency suggests to exclude from the scope of application of the future Regulation the recording of rights in rem or the publicising thereof. This will mean that for registration purposes the rules of the Member State in which the relevant property is located will apply.’ ‘However, the recording should be carried out on the basis of the documents drawn up under the law designated by the future Regulation, which should constitute sufficient proof for the purposes of registration.’ ‘It goes without saying that the information contained in the foreign document presented for registration must be complete and accurate so as to meet the conditions for registration in the Member State where the property to be registered is located. (...) the authorities dealing with successions should have access to the relevant (land) registers of other Member States so as to be able to obtain accurate information on the status of the property located there and on the exact description of that property required for the purposes of registration.’ ELRA Brussels 2011

14. 4. The registration of the Certificate (3) ‘To ensure smooth cooperation between authorities the Presidency suggests to craft the (...) Certificate (...) in such a way that it is made to include standard information necessary for registration purposes. In addition the Presidency suggests to create specific standard forms for each Member State listing information or documents typically required for registration of property in that specific Member State (...) These specific forms could then be consulted by the competent authority drawing up the documents to be produced for registration purposes to help them ensure that the documents presented to the land register (sic) are as complete as possible and meet the requirements of the law applicable to the registration.’ ‘(...) the Presidency suggests as the general rule that foreign documents should be accepted for the purposes of the recording of property in the land register (sic) and that additional information or documents should only be requested if specific information necessary to ensure the completeness of the registration application under local law is lacking. It is up to each Member State to organise how the check of the foreign documents should be carried out. In some Member States, land registers may check that all information required is available. If the information is not complete, the register would have to indicate to the heir how the lacking information can be provided. In other Member States, land register officials do not have any authority or power to check the documents presented to them. In those Member States the intervention of another authority may be required to carry out the necessary check.’ ELRA Brussels 2011

15. 4. The registration of the Certificate (4) 4.2. The fact sheets The Land Registry ‘in matters of succession’ The following two questions which arise in the case of the transmission of a property right in land mortis causa, i.e. on the death of the holder of the property right, will be answered: What entry is made or what entries are made in the land register if a registered holder of a property right dies? Could and/or should the European Certificate of Succession issued according to the Regulation (...) be entered in the land register? ELRA Brussels 2011

16. 4. The registration of the Certificate (5) 4.3. The scope of the Certificate Note on the relationship between succession law and property law in the future Regulation (April 2011): ‘The Presidency suggests that the sharing out or the distribution of the estate, that is the determination of which beneficiary gets which assets, should be included in the scope of the law applicable to the succession. Once carried out under that law by the competent authority, the sharing out of the estate may not be called into question by the Member State in which succession property is located regardless of the latter's property law rules, subject of course to registration formalities as set out below. In particular, the beneficiaries should not be required to go through new proceedings or obtain new documents to confirm the sharing out carried out under the applicable succession law.’ ELRA Brussels 2011

17. 4. The registration of the Certificate (6) How should we interpret this? An example in the note ‘to illustrate how (this suggestion) would work in practice’ seems to reveal the intention of the legislator. ‘A French citizen habitually resident in Germany dies in Germany without having made a choice of law in favour of French law. German succession law is applicable. There are two heirs: A and B. The deceased possessed a flat in Stuttgart and a flat in Bordeaux. A and B become joint owners of the flats in Stuttgart and Bordeaux. A and B agree that A should get the flat in Bordeaux and B the flat in Stuttgart. They conclude the necessary contract to that effect given that German succession law does not provide for the final distribution of the estate among the heirs.’ ELRA Brussels 2011

18. 4. The registration of the Certificate (7) If the applicable succession law shares out the estate, i.e. determines which heir/legatee gets which property, this distribution is included in the Certificate. If the applicable succession law does not share out the estate, i.e. transmits the whole estate to all the heirs/legatees, the distribution cannot be included in the Certificate. The heirs/legatees should conclude – after the transmission of the estate – a contract of division. The consequences for a Land Registry could be considerable. It could be argued that including the sharing out of the estate in the Certificate is an unnecessary step too far. In the above example, A and B, the joint owners of the flats could decide to sell a flat. Co-owners can do this, they need not conclude a contract of division. ELRA Brussels 2011

19. Looking back and looking forward Thank you for answering the questionnaires. Thanks to you, ‘ELRA is on the map’. I need to ask one last effort: could you verify – and correct if need be – the Land Registry Information form and write the fact sheet The Land Registry ‘in matters of succession’ to make sure that they reflect the operation of your Land Registry. The next step will be the presentation of the final drafts of these documents to the European Union representatives. At that occasion we will discuss the placing of the Land Registry Information form and the fact sheets The Land Registry ‘in matters of succession’ and the interpretation of the scope of the Certificate. Of course, we’ll keep you informed. ELRA Brussels 2011