Cross Border Electronic Conveyancing, Wim Louwman, President of the European Land Registries Association. Presentation to the UNECE Working Party on Land Administration 2012,

1. 2-10-2012
CROBECO
(CROss Border Electronic Conveyancing)
secretariat@elra.eu
CROBECO 1
• Project ended July 2012
• Aimed at alternative cross border conveyance process that should contribute to
better cross border service of documents (art. 81 TFEU)
• Developed a Cross border Conveyance Reference Framework
Based on:
‐ experiences pilots Netherlands /Spain
i il N h l d /S i
‐ desk research Netherlands/Portugal
‐ discussion with other stakeholders in three conferences
‐ advices Universities of Maastricht (Netherlands), Valencia (Spain), Coimbra
(Portugal)
Cross border Conveyance Reference Framework
Choice of home country legislation foreign buyer:
‐ for contractual obligations (Rome I, EC 593/2008)
‐ for non contractual obligations (Rome II, EC 864/2007)
Choice of jurisdiction home country courts (Brussels I, EC 44/2001)
Contract of sale in home country language
Contract of sale by home country conveyancer
Only possible when submission of foreign deeds is allowed
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2. 2-10-2012
Submission of foreign documents
Results questionnaire ELRA: submission possible in 50% of the MS.
Recent Supreme Court of Spain:
Foreign documents comparable to demanded documents in Spain have to be
Registered, regardless of formal differences.
Arguments among else:
-f d
freedom of t
f transfer of goods ( ti l 1462 of th S
f f d (article f the Spanish Ci il C d )
i h Civil Code);
- EU tendency to avoid duplication of formal requirements;
- Commission’s Green Paper Less bureaucracy for citizens.
Pitfalls for foreign conveyancers (1)
a. Different system for Land Registries:
- title system, (foreign conveyancer can rely on output from the land register);
- deeds system, (foreign conveyancer has to scrutinize the deeds).
b. Foreign languages in Land Register:
- if EULIS MS, translation in English for all plots available ;
- If non-EULIS MS, translation in English on demand of specific plots.
Deeds systems
CCRF: on demand positive (title) statement registrar in English.
Pitfalls foreign conveyancer (2)
Land registers no info about:
- public limitations (for example public domain with
restrictions for new buildings);
- public obligations (for example obligations to clean up
polluted soil).
To be collected from Municipalities or other governmental
bodies
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3. 2-10-2012
Pitfalls foreign buyer (3)
Differences cadastral/legal boundary
Cadastral (taxes) boundary: spatial data collected by surveyor
Legal boundary:
- description in words based on visual boundary marks (you buy what you see in
the field);
- changes because of prescription.
g p p
Neglecting differences could lead to neglecting public limitations/obligations
Pitfalls foreign conveyancer (4)
Electronic communication
Different types of process:
- eLodging (digital duplicate/ original on paper);
- eRegistration (lodgement of documents in electronic format only);
-eConveyancing (paperless transactions through all stages conveyance process).
Interoperability:
-Format
Format
-Electronic signatures
-Time stamping
CCRF: principles of good IT governance and best practices ELRA Member States
Support for foreign CROBECO conveyancers
Repository with clauses:
‐ demanded for registration;
‐ optional protection against unknown
legislations
Glossary with explanations of national legal
terms.
R f
Reference information about legal
i f ti b tl l
systems (ELRN).
Helpdesk to:
‐ fulfil formalities;
‐ collect non Land Registry info.
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4. 2-10-2012
Neutral position registrars/notaries
Does not judge desirability of European law
Notaries have a duty to inform parties about possible law choice
(Common Principle 2.4 of the European Notarial code of conduct)
Registrar has to support conveyancer, who because of law choice has to deal with a
legislation he is less familiar with:
CROBECO II
Specialized CROBECO conveyancers in home countries of
foreign buyers.
Support for CROBECO conveyancers by implementing:
- repository of clauses;
- glossary with explanations of national legal terms
- helpdesks in countries with many foreign buyers
Start with buyers from England/ Netherlands of property
rights in Portugal/Spain
CROBECO in practice, a fake example
Mr Smit
Mr Fraud
Seller Country accepting
foreign deeds Buyer
Buyer and seller both Dutch agree on contract of sale
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5. 2-10-2012
Deed in Dutch and foreign language
Contractual and non contractual
obligations based on Dutch legislation
Jurisdiction of Dutch court
Mr Fraud Smit
Seller Buyer
Dutch notary public:
‐ just around the corner;
‐ who speaks Dutch .
Notary public
Electronic
Foreign Land Register
Smit has to pay overdue taxes
Home country court order (Rome 1 , Brussels 1): mr. Fraud has to pay
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6. 2-10-2012
The soil is polluted
Home country court order: Fraud must pay for cleaning up
because of Rome 2, Recital 30 (culpa in contrahendo) and
Brussels 1
Smit misses a tennis court
Cadastre
boundary
Legal boundary
Smit claims non performance, court order concerning retransfer with delay
penalty and paying back purchase money.
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