European Property Rights and Wrongs - Diana Wallis MEP

curacy of the information offered. In Member States which follow the Germanic
tradition, such as Austria, Poland, Greece, there is a title registry (or a positive system).
In this system the land registry will only register the deed offered if the content
proves to be accurate. This positive system is also adhered to in the United
Kingdom (including Scotland). The differences between the registration systems
are substantial, especially as in positive systems there is a principle of public trust
in the accuracy of the land registry, which does not exist in negative systems.
Moreover, registration in negative systems usually takes a day, whereas registration
in a positive system can last up to 3 months.
So if person A from England seeks to acquire land in another Member States,
say France, person a will acquire a right of ownership providing him with the
principal entitlement to land, registration will be effected within a day. Moreover,
because of the conveyancing system adhered to in French law, the ownership of
the land will transfer between parties at the moment of creation of the contract.
In order for this to have effect against third parties, registration is necessary. This is
not so much different from English law, where the conclusion of a contract for the
sale of land creates an interest under a trust for the buyer. However, if person A
would have come from Germany, this effect would be completely unexpected. A
from Germany would expect that besides a contract of sale, also further property
law formalities are required before the property entitlement passes to him.
It therefore matters what legal system applies to a transaction. When there is
a cross-border transaction, and legal systems come into conflict with each other,
the rules of private international law provide a connecting factor to prevent or
solve such a conflict of law (an issue looked at in more detail in the next chapter).
In land law this is the rule of lex rei sitae or the law of the place where the object,
ie land, is situated. Property law transactions therefore are governed, as far as the
property aspects of the transaction are concerned, by the legal system in which
the land is situated. As far as the contract of sale, or donation, is concerned, the
Rome-I Regulation 20 applies and offers choice of law.
20 Ed: The Rome I Regulation governing the law applicable to contractual obligations
of a cross border nature. This should not be confused with the Brussels I regulation,
on the recognition and enforcement of judgements across Member State borders
referred to later on this publication
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