Flexibilität, Sicherheit und Effizienz der Grundpfandrechte in Europa ...

Bewertungssystem für die rechtlichen Rahmenbedingungen in Kontinentaleuropa 149
Scope of the Eurohypothec: The scope of the Eurohypothec is the same as for
other land charges under national law, insofar as they cover the property and the
fruits and profits of the property, in particular rents, appurtenances and also claims
under insurance contracts for losses to the property, buildings and specified items 194 .
3.6. Holder
Owner’s Eurohypothec: National law may provide that the Eurohypothec can also
be created in favour of the present owner himself. Then the owner stays holder of the
Eurohypothec even after ownership of the land changes.
Register Representative: All natural persons and/or legal entities may hold a Eurohypothec.
In the case of the creation or transfer of a Eurohypothec in favour of a
legal entity with no legal personality (e.g. in the form of a trust or some other
fiduciary capacity), the national law may require that the registration be valid only
where there is registration of a register representative who will give full information
and who is entitled to make any declaration on behalf the actual ownership of the
Eurohypothec.
4. SECURITY AGREEMENT
4.1. Definitions and applicable law
‘Security agreement’ means a contractual agreement under which the owner
provides a Eurohypothec by way of security in favour of the (future) holder of the
Eurohypothec.
‘Secured claim’ means the obligations which are secured by a Security Agreement
and which give rise to a right to cash settlement. They may consist of or include:
• present or future, actual, contingent or prospective obligations (including such
obligations arising under a master agreement or similar arrangement);
• obligations owed to the future holder of the Eurohypothec by a person other than
the collateral provider; or
• obligations of a specified class or kind arising from time to time.
The Eurohypothec can be used to secure cross-border loans but also, depending on
the wishes of the parties, loans that only affect one country.
The security agreement is not subject to legal provisions for loan contracts. The
applicable substantive law for the security agreement is the law of the Member State
where the property is located (lex rei sitae) 195 .
4.2. Form and Content
Any acquisition of a Eurohypothec as security, by a person other than the owner of
the charged property, requires a security agreement.
Form
The security agreement must take the form required by national law. Oral agreements
are invalid.
194 Some members would prefer harmonisation of the scope of the Eurohypothec.
195 Some members would prefer free choice of the applicable law for security agreements, in
particular where commercial real estate loans are concerned.