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

Bewertungssystem für die rechtlichen Rahmenbedingungen in Kontinentaleuropa 151
5. TRANSFER
5.1. Non-Certificated Right
The assignment of a non-certificated right is opposable to third parties only upon
registration.
Registration of the assignment requires the consent of the previously registered owner
of the Eurohypothec. National law may require an agreement between the previous
and the new owner of the Eurohypothec as a substantive requirement for the
assignment of the Eurohypothec.
5.2. Certificated Right
The assignment of a certificated right is governed by the law of the state where the
land is situated.
The assignment is effective only if the Eurohypothec certificate has been handed over
to the new holder of the Eurohypothec.
5.3. Formal Requirements
Formal requirements as to the parties’ declarations of assignment, registration and
transfer of the certificate must be the same as for other mortgages under national
law.
5.4. Good Faith
Whoever, according to national law, acquires in good faith, is protected,
• as if the registered person were the true mortgagee,
• in case of a certificated right also, as if the holder of the certificated right were
the true holder of the Eurohypothec, provided he can prove his right by an
unbroken chain of assignments in authentic instruments.
This does not affect the owner’s objections (5.6.).
5.5. Independence of Secured Claim
The transfer of the Eurohypothec cannot be made dependent on the condition of
transfer of the secured claim.
5.6. Owner’s Objections
National law may provide
• either that the security agreement in its latest version is binding for any future
holder of the Eurohypothec and any third party as long as the security provider is
not the holder of the Eurohypothec.
• or, alternatively, that the previous Eurohypothec holder is liable for all damages
incurred by the owner, if he assigns the Eurohypothec without binding the
assignee to the security agreement.
If the holder of the Eurohypothec transfers it to a third party, the holder must inform
the third party about the security agreement. If there is no further agreement, the
holder can fulfil this obligation by handing over the original documents to the third
party.
The owner’s rights to redemption are not subject to any time limitation or prescription
as long as the Eurohypothec is registered.