European Property Rights and Wrongs - Diana Wallis MEP

A lawyer equipped to handle the first aspect may not do well with the second.
In many Spanish ‘land grab’ cases the second aspect predominates and some
at least of the buyers were not made aware of the potential infrastructure costs.
Conveyancing is compartmentalised because property transactions and probate
can be, and invariably are, reserved for notaries recognised nationally. In the
short term this is the single biggest factor militating against the emergence of a
single Europe-wide property law. UK law firms are much more anxious to embrace
change, believing that wider markets means more business not less. The EU treaties
enshrine the monopoly of national notarial professions and this precludes the
emergence of a single market in legal probate and conveyancing services. The
Spanish experience shows how unsatisfactory this can be. Spanish notaries advised
buyers according to Spanish professional standards, and yet the information
supplied was clearly inadequate to the needs of many foreign buyers. In the long
run, the notarial monopoly is as unsustainable as the monopoly over conveyancing
once enjoyed by high street solicitors in the UK, and the ultimate solution is
the European conveyancer. This new profession cannot emerge under current EU
law, but the Valencian saga suggests that this matter is urgent.
Towards a wider European land law
Land law is essentially a matter for each Member State. Three processes seem
to be at work to create a European land law. (1) There is a gradual evolution
of a European transactional law as a response to the large volume of crossborder
purchases. (2) An increasing convergence of property systems operating
within the same basic traditions, but that this form of soft harmonisation cannot
overcome the basic structural dislocations between the common law, French,
Germanic and Nordic systems. A particular driver is the evolution of computerised
registration systems and efforts to ensure their mutual compatibility. (3)
Moves towards a common contract law which might include a European code
for the passing of property when goods are bought and sold. A proposal is circulating
in the shape of the Draft Common Frame of Reference, though it seems
unlikely that there is the political will for its adoption and it is extremely unlikely
that the UK would participate in even the mildest reworking of this proposal. .
Any move to harmonise contract law calls for a knock on reform of land law.
Land would be excluded but it is by no means easy to draft an adequate exclu-
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