Presentation on theme: "Cross border e-Conveyancing and the use of Stylesheets The use of Stylesheets (NL) The possible use of Stylesheets (EU) The use of the Ring of Trusted."— Presentation transcript:
Cross border e-Conveyancing and the use of Stylesheets The use of Stylesheets (NL) The possible use of Stylesheets (EU) The use of the Ring of Trusted Registrars
The Dutch Legal System Deeds system: No guarantee on title Registrar checks for registration requirements No complete registration of rights No Financial guarantees BUT: Fast registration
The Dutch Legal System AND: No guarantee but LR is reliable because : Passing deeds is mandatory (Notary) and recording is mandatory (Registrar) Registrar informs Notary / buyer on defective deed After recording new owner receives notification of changes Possibility of objection to changes & appeal to court
The Dutch Legal System AND: Cadastre Registration expanded and acquired a meaning that goes further perhaps same evidential value as Land Register? Liability Notary (insurance Notary / Royal Dutch Notary Society) and also liability for Kadaster
The Dutch Legal System AND: If a sellers right is defective: true owner keeps the property (= deed system) If a sellers right is defective an he has sold to a third person (in good faith): third person keeps the property. So: protection of third parties in good faith
The Dutch Legal System Semi-title system: No guarantee on title but reliable because of cooperation Registrar checks for registration requirements and informs Notary in case of defective deed No complete registration of rights but meaning of Cad. Reg. is growing and protection of third party in good faith No Financial guarantees but liability Notary and Land Registry Fast registration
The Dutch Legal System NotaryRegistrar Independant Responsible content deedResponsible Land Reg. Identification PartiesResponsible Cad. Reg. Validity of agreementDecisions about recording Coming into effect ownership & other property rights Informing parties if deed is defective Clearing house functionLawsuits (boundaries)
The Dutch Legal System Cooperation Notaries - Registrars: Agreements on duration registration process If any correction/ rectification of the deed is needed: agreements on duration rectification process Help line for notaries (difficult deeds / disagreement decission on registration) Agreements to use e-conveyancing (the use of stylesheets)
The use of Stylesheets (NL) Mrs Appel explained the data integration Step By Step Approach No magic, just existing techniques (XML)
Data integration by using stylesheets... without changing responsibilities
Basic Principles Notary stays responsible for content of the deed Registrar stays responsible for Cadastre registration Notary preserves editorial freedom
Partly standardised documents for e-conveyancing Stylesheet, computerised verified by Dutch registrar Other conditions …………………. Deed....................... End of standardised part 1st part of the deed contains all essential data for Cadastre registration, e.g.: personal information about buyer, seller, object, purchase price, new easements or dissolving clauses Editorial part with all other conditions and agreements, not to be registered
User agreement Meaning end of part one Declaration Notary: no fact that belongs in the Cadastre Registration is mentioned in the 2nd part of the deed If essential information is in the 2nd part, the Notary will be liable
The possible use of Stylesheets (EU) Step By Step With respect to existing legislations –Common law: conclusive evidence deed? With respect to existing techniques –eLodging (digital duplicate/ original on paper) –eRegistration (lodgement of documents in electronic format only) –eConveyancing (paperless transactions through most of all stages of the conveyancing process) With respect to existing responsibilities –Title system deeds system
Germany 2011: starting two-sided structured communication FOLIA- EGB Civil Law Notary Land Register Original sheet by: Klaus Petermann, Ministry of Justice of North-Rhine Westphalia and Dr. Robert Mödl, Federal Chamber of German Notaries Adapted by: Jacques Vos, Registrar at Kadaster (the Netherlands Cadastre, Land Registry and Mapping Agency)
Respect for existing circumstances No change in responsibilities of registrar/ conveyancer No change in conveyancing systems No change in legislation Reuse of existing techniques (e.g. STORK, SPOCS, EPO, eCODEX)
CROBECO-questions Can a Dutch notary execute a deed in a foreign language? –Dutch Notarial Act (art. 42): Yes, but only if (s)he has sufficient knowledge of the foreign language notarial responsibility!
CROBECO-questions Is it possible to record a Foreign deed in the Spanish LR? –Yes, according to Spanish Law
CROBECO-questions Does the Dutch notary know foreign law? –Perhaps; if not: advice from Dutch Registrar (LERN / Legal Science
CROBECO-questions How does the Spanish colleague-registrar know the agreement is valid? –Advice on evaluation of validity of agreement (Dutch colleague) because the agreement has been declared subject to Dutch law (Rome I); –The Dutch colleague knows whats to be scrutinised to conclude the agreement is valid, according to Dutch law; –Scrutinising by using standardised deeds, content approved by Legal Science –Dutch Registrar adds an advice on validity of the agreement
CROBECO-questions What kind of advice is given by the Dutch Registrar? –The (first part of the) deed implies consensus ad idem; –Dutch registrar checks in accordance with the Dutch law if there is an agreement by checking: Usual standardised information on buyer and seller in the contract of sale; Statement of notary on capacity (adulthood, competence to act) Protective clause against unknown foreign legislation (dissolving condition) Conclusive evidence (authentic deed, signature notary)
CROBECO-questions How can this be done on a short notice? –For scrutinising the validity of a contract that according to Rome 1 is made subject to Dutch law a partly standardised contract will be used that can be evaluated in advance by the registrars and legal scientists from Spain; –Stylesheet!
Partly standardized documents for cross border e- conveyancing Agreement of sale Other conditions Deed....................... End of standardized part Validity of the agreement, according to home country law (Rome 1). Is judged by registrar from home country of buyer and by registrar of the real estate Only evaluated by registrar of real estate
Pilot Netherlands / Spain: Dutch notary executes deed of contract of sale Stylesheet, computerized verified by Dutch registrar Necessary information for Spanish registrar Deed....................... End of Standardised part. 1.usual standardized information on buyer and seller in contract of sale; 2. statement of notary on capacity; 3. Validity of the agreement, according to home country (Rome I) 4. protective clause against unknown foreign legislation (dissolving condition) Judged by the registrar of the home country of the buyer & by the registrar of the real estate Specific information that is necessary for transfer in Spain Conditions of this specific agreement, only evaluated by the registrar of the real estate
CROBECO-questions How about the mortgage (deed)? –Step by step –Advice Legal Science & research Rabobank
CROBECO-questions How about conclusive evidence? –Authentic deed & true copy of the deed –Qualified electronic signature
CROBECO-questions How to get the needed information from a colleague?
European Land Registry Network (ELRN) Operating Rules for the ELRN Contactpoints Information provided by the Contact Points shall not be binding, nor shall it be subject to any liability. It is an informal procedure of cooperation.