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