Civil law property final exam notes (robert godin) april 2007

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Accessibility of the publication system is available for anyone interested


  • Art. 2935 makes it against public order to not allow someone (even a child) to register

  • Art. 2936: the right to publish cannot be restricted in a contract

  • The civil code even has detailed regulations of how to proceed with registration, which goes against the suppletive nature of the Code

  • Art. 2971.1 No one can use the information in the registry offices in order to damage the reputation of someone




Art.2935

Any person, even a minor or a protected person, may request the publication of a right, on his own behalf or on behalf of another.




Art.2936

Any renunciation or restriction of the right to publish a right which shall or may be published, as well as any penal clause relating thereto, is without effect.




Art.2971.1

No one may use the information contained in the registers and other documents kept in registry offices in such a manner as to damage the reputation or invade the privacy of a person identified in such a register or document.

Two rights can be registered


  • Immovable real rights – These need to be registered


  • Personal or movable real rights to the extent provided by the law

    • E.g. the registration of leases or movable hypothecs

  • Art. 2938 provides for this




Art.2938

The acquisition, creation, recognition, modification, transmission or extinction of an immovable real right requires publication.

Renunciation of a succession, legacy, community of property, partition of the value of acquests or of the family patrimony, and the judgment annulling renunciation, also require publication.

Other personal rights and movable real rights require publication to the extent prescribed or expressly authorized by law. Modification or extinction of a published right shall also be published.

What needs to be registered, are immovable rights, as well as movable rights that require to be registered by law

There are quite a number of provisions in the code that require or provide or registration


  • E.g. Environment Quality Act

Arts. 2434 and 2982 make reference to the idea that what is published are documents




Art.2934

The publication of rights is effected by their registration in the register of personal and movable real rights or in the land register, unless some other mode is expressly permitted by law.

Registration benefits the persons whose rights are thereby published.





Art.2934.1

The registration of rights in the land register is effected by indicating summarily the nature of the document presented to the registrar and making a reference to the application pursuant to which registration is effected.

The registration is valid only for the rights requiring or admissible for publication that are mentioned in the application, or where the application is in the form of a summary, in the accompanying document.






Art.2982

An application for registration in the land register is presented at the Land Registry Office or, if the application is presented in paper form, at the registry office established for the registration division in which the immovable is situated.

The application is made by presenting the act itself or an authentic extract of the act, by presenting a summary of the act or, where the law so provides, by means of a notice.


The quality of the system is not guaranteed by the system, but by the professionals in the process



  • There is now some certification process in which a lawyer attest for the integrity of different deeds, but this rest on the integrity of legal professionals in terms of the validity of what is being published

The opposability of the system is based on two presumptions


    • [Note: presumption as a legal technical term is one of the ways in which you establish proof of evidence; coming from a known fact to an unknown fact]


    • Presumptions are either rebutabile (simple) or irrebutable

  • Art. 2943 The right that is registered in the register is presumed known

    • Proof can be made to the contrary, but the burden of proof is one the person contesting the right in the registration

    • The article goes on to state that you cannot attack this right without having consulted first what is registered in the registrar’s office

  • Art. 2944: registration of a right carries simple (rebutable presumption) of the existence of that right




Art.2943

A right that is registered in a register in respect of property is presumed known to any person acquiring or publishing a right in the same property.

A person who does not consult the appropriate register or, in the case of a right registered in the land register, the application to which the registration refers, and the accompanying document if the application is in the form of a summary, may not invoke good faith to rebut the presumption.






Art.2944

Registration of a right in the register of personal and movable real rights or the land register carries, in respect of all persons, simple presumption of the existence of that right.

Registration is technical and is always interpreted technically by the courts


  • Examples: Art.2963, registration when required must be done

    • Is an exception to the idea that contracts only concern the parties involved

    • Also, if you have created a security without following the proper procedures of registration, it will become part of the common pledge

  • Art. 2964 It must be done by anyone, including minors and the State

  • Art.1455 opposability can only be established through registration and not merely by the transfer of property from one person to another




Art.2963

Notice given or knowledge acquired of a right that has not been published never compensates for absence of publication.




Art.2964

Absence of publication may be set up by any interested person against any person, even a minor or a protected person, and against the State.




Art.1455

The transfer of a real right in an immovable property may not be set up against third persons except in accordance with the rules concerning the publication of rights.

Rights are registered at the exact moment they are entered in registration


  • Order of registration establishes rank

    • Between hypothecs, title

      • With the exception of construction

      • This came about historically to protect construction, given the costs that have been incurred

Other effects



  • Registration does not interrupt prescription

  • In general registration does not generate rights, except for the case of division of an immovable in condominiums, Arts.1038, 1039

    • The registration in this case, has the effect of creating a legal person or entity simply by registering the declaration of co-ownership

  • Rights are deemed published from the point of advanced registration, art.2968



Art.1038

Divided co-ownership of an immovable is established by publication of a declaration under which ownership of the immovable is divided into fractions belonging to one or several persons.



Art.1039

Upon the publication of the declaration of co-ownership, the co-owners as a body constitute a legal person, the objects of which are to preserve the immovable, to maintain and manage the common portions, to protect the rights appurtenant to the immovable or the co-ownership and to take all measures of common interest.

The legal person is called a syndicate.





Art.2968

Rights which are the object of a judgment or transaction terminating an action are deemed published from the time of their advance registration, provided they are published within thirty days after the judgment acquires the authority of a final judgment (res judicata) or the transaction takes place.

Rights under a will that was prevented from being published are also deemed published from the time of their advance registration, provided the will is published within thirty days after the obstacle is removed or after the will is obtained or probated and within three years from the opening of the succession.




Movables and Immovables

The old code made a very clear distinction between these two



  • Everything dealing with immovables carried considered formalism

    • They were the basis of wealth and power, family stability

    • It was seen as one of the key areas for investment

  • Movables were given very little protection

    • Res mobilis, res vilis

    • It was unstable, could be stolen, disappear, etc

This has changed significantly



  • Investments in immovables are complex and require certain degree of sophistication

  • In modern economies real estate has become commodified and become the basis for abstract financial instruments

    • What the investor holds is a share on the immovable rather than the tangible real asset

The distinction between movables and immovables is significant


  • In France no change has been done from before

  • The CcQ, however, modified the view that was held before

  • The distinction has significant consequences on the property

What is the relevance of this distinction today?



  • Art. 899 Property whether corporeal or not is either movable or immovable

  • Whether something is movable or immovable may determine what jurisdiction may apply to it when it comes to international law or when the property has moved

  • Art.3098 Succession to movable property is governed by the last domicile of the deceased, for immovable property it is based on where the property is situated

  • Art.3102 The validity of a movable security is dependent on the country is which the security was created, for an immovable security, it is dependent on where the security is situated




Art.899

Property, whether corporeal or incorporeal, is divided into immovables and movables.

  • Property either movable or immovable




Art.3098

Succession to movable property is governed by the law of the last domicile of the deceased; succession to immovable property is governed by the law of the place where the property is situated.

However, a person may designate, in a will, the law applicable to his succession, provided it is the law of the country of his nationality or of his domicile at the time of the designation or of his death or that of the place where an immovable owned by him is situated, but only with regard to that immovable.





Art.3102

The validity of a movable security is governed by the law of the country in which the property charged with it is situated at the time of creation of the security.

Publication and its effects are governed by the law of the country in which the property charged with the security is currently situated.



The distinction was also relevant in the issue of alienation of property, as it pertained to minors, for instance



  • Rules relating to immovable property were very strict, gave much protection to individuals

  • Under the code today this area has changed significantly

  • New section in the code starting at art 1299, which deals with the administration of property of others

  • The regime was simplified into uniform rules that would apply to everyone in various situations

    • There are some distinctions between movables and immovables but not to the same extent

    • There are two types of administration, no distinction is made between movables and immovables in a significant way

      • Simple administration art.1305, alienation with consent

      • Full administration art. 1307

      • Art. 174, there are some rules that restrict the alienation of immovables of a minor; also art.213
    • So the distinction is still there, is not as significant, but there are few more restrictions protection immovables

Another aspect in which the distinction is made is with regards to the formalism with regards to the transfer and acquisition of ownership



  • Certain transactions dealing with property require the “notarial form

    • To attack a notarial document (improvation) is a very difficult procedure with a heavy burden of proof

    • The only document of immovable property that needs to be done in notarial form is the hypothec; otherwise the hypothec will be null (art.2693)

      • A movable hypothec requires only to be in writing, no need for a notarial form

  • Every transaction that deals with an immovable needs to be registered (publicized), however




Art.2693

An immovable hypothec is, on pain of absolute nullity, granted by notarial act en minute.

  • Immovable hypothecs need to be done in notarial form




Art.2696

A movable hypothec without delivery shall, on pain of absolute nullity, be granted in writing.

  • Movable hypothecs need to be done in writing

Prescription (The acquisition of laws or rights through the passage of time)


  • Some significant distinction between immovable and movable things


  • Art. 2918 a person who has possessed an immovable for 10 years can apply for ownership through judicial demand

    • For movables, the time is 3 years (art. 2919)




Art.2918

A person who has for ten years possessed an immovable as its owner may acquire the ownership of it only upon a judicial demand.




Art.2919

The possessor in good faith of movable property acquires the ownership of it by three years running from the dispossession of the owner.

Until the expiry of that period, the owner may revendicate the movable property, unless it has been acquired under judicial authority.


Other matters in which there is a distinction between movables and immovables



  • Matters of procedure

  • Seizure

  • Security for loans and other obligations

    • In the old code this distinction was crucial

    • No we have securities on movables and immovables but there are still some procedural differences

  • Areas dealing with patrimonial rights

    • Arts. 404-05
  • Partition; art. 852


  • Taxation

Law under the old code considering immovables and movables



  • Has had some influence on how we see these two today

  • The doctrine is heavily influenced by this distinction

  • Distinction between movables and immovables that dates back to the French code

  • There was certain classification amongst these categories; art.375 CCLC

    • 4 kinds of immovables

      • By nature

      • Destination

      • Reason of the object to which they are attached to

      • Determination of the law

      • [the new code doesn’t have this distinction]

  • Property that is not specified as immovable is considered movable (movables are the exception); this still applies today, art. 907




Art. 907

All other property, if not qualified by law, is movable.




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