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Part II

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Part II

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  1. Proposal for a Regulation of the European Parliamentand of the Council on jurisdiction, applicable law,recognition and enforcement of decisions and authentic instruments in matters of succession and the creation ofa European Certificate of SuccessionCOM(2009)154 final – 14 October 2009 Part II ELRA Brussels 2010

  2. Previously (1) … Madrid, May 2010: a brief and general presentation of the Proposal for a Regulation ‘in matters of succession’ (the lex reisitae?) and (ii) a presentation of the proposed European Certificate of Succession. ELRA Brussels 2010

  3. Previously (2) … The questionary & solutionary: Three questions about the possible entry ‘of the succession’ in the land register (death, transmission of the estate of the deceased and transfer of specific property rights), the necessary formalities for and effects of the registration. And one question about the lex reisitae principle. The proposed solution: the restoration of the reign of the lex reisitaeand the enhancing of the utility (and user-friendliness) of the European Certificate of Succession, by including the land registration formalities in the Certificate. ELRA Brussels 2010

  4. Meanwhile (1) … The Note of May 2010 from the Presidency to the Working Party on Civil Law Matters (Succession): Inter alia, Article 1(4) of the Regulation — the scope — is rewritten: ‘This Regulation shall not affect the property law of the State where succession property is located (...). In particular, it shall not affect the nature of rights in rem, the requirements relating to the recording of such rights in a public register or the publicising thereof nor the effects of making or failing to make an entry into a public register.’ ELRA Brussels 2010

  5. Meanwhile (2) … The Note of October 2010 from the Presidency to the Working Party on Civil Law Matters (Succession) submits, inter alia, the following proposals: The sharing out of the estate is to be governed by the law applicable to the succession. The effects of registration of property are to be governed by the property law of the registering Member State and not by the law applicable to the succession. The relevant authorities in the Member State of registration should have to accept acts drawn up under the law applicable to the succession, as supporting documents for registration. Fact sheets should be provided. The nature of rights in rem is to remain excluded from the scope of the prospective Regulation and will continue to be governed by the property law of the Member State keeping the register of such rights. A provision (or a recital) should be included on adaptation of an unrecognised right in rem, so as to ensure that the relevant authorities in the Member State in which the property covered by that right is located find an equivalent right in rem amenable to registration there. ELRA Brussels 2010

  6. Part II, the sequel (1) … Two important issues need to be addressed: What procedure will be followed to convert the ‘unknown’ property right in a ‘registrable’ property right of the lex reisitae? What will be or could be the role of the Land Registry? How will the information from the competent Land Registry as to the registration formalities and the effects of the entry in the land register be conveyed? Could the European Certificate of Succession be used? ELRA Brussels 2010

  7. Part II, the sequel (2) … The proposed answer: the ‘reinforced’ European Certificate of Succession: Based on the information of the ‘administrators of the inheritance’ (i.e. the personal representatives in a common law system and the heirs or legatees in a civil law system), the court that will issue the Certificate finds out whether the inherited estate comprises land located elsewhere or not. If ‘foreign land’ is part of the estate, the court should, before issuing the Certificate, contact the competent authority of the foreign country to get two questions answered: (i) what is the (actual) property right of the deceased? and (ii) is this property right ‘inheritable’ as such or is a conversion necessary? It seems evident that the authority receiving such questions will consult the Land Registry (perhaps, this could be best imposed on the authority in the Regulation). ELRA Brussels 2010

  8. Part II, the sequel (3) … continued Question (i) should pose no problem (although there could be ‘surprises’, e.g. when the land of the deceased is acquired by an adverse possessor (usucapio)). Question (ii) could pose a problem, e.g. when the property right of the lex successionis is incompatible with the property right of the lex reisitae. If so, the registrar should enter ELRA’s European Land Registry Network and ask the contact point to describe the property right of the lex successionis; with this information the registrar of the lex reisitaewill be able to propose the conversion of this unknown property right in a registrable (or ‘operative’ ?) property right. ELRA Brussels 2010

  9. Part II, the sequel (4) … continued This proposal, i.e. the equivalent property right (and the overview of the formalities that need to be accomplished) is sent to the competent authority, who transmits it to the court that will issue the Certificate. A contradictory debate could then and there be organised. The Certificate is issued. ELRA Brussels 2010

  10. Part III, the finale (?) At the next ELRA General Assembly, two items will be presented: The outcome of the ‘negotiation’ with the Working Party on Civil Law Matters (Succession). Is the ‘reinforced’ European Certificate of Succession accepted? The fact sheets on registration ‘in matters of succession’: a second questionary is on the way. ELRA Brussels 2010