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ELRA Working Group - International Law. Handbook Legal restrictions ELRA Working Group - International Law. Handbook Legal restrictions

Handbook-project of the WG International Law: „Legal restrictions““ • • • Reminder: scope of Handbook-project of the WG International Law: „Legal restrictions““ • • • Reminder: scope of the Handbook: property transfer and registration means the context of the relevant national law some kind of road map about these further requirements and about the legal restrictions The Handbook provides information about the different national land registry systems A checklist about legal restrictions Handbook "Legal restrictions" 2

Handbook-project of the WG International Law: „Legal restrictions““ • • • History: Questionnaire created Handbook-project of the WG International Law: „Legal restrictions““ • • • History: Questionnaire created in November 2010, after the General Assembly in the Representation of the Free State of Bavaria in Brussels President´s request: project postponing for nearly 4 months Questionnaire, created in November 2010, was send out to the ELRA members at the end of Februar 2011, deadline 1 st of April 2011 Last answers arrived some days ago in the Secretariat; compilation will be finished at the end of May 2011; only some remarks about some contributions possible now Handbook "Legal restrictions" 3

Handbook-project of the WG International Law: „Legal restrictions““ • Results: answers from 16 ELRA Handbook-project of the WG International Law: „Legal restrictions““ • Results: answers from 16 ELRA Member Countries, in case of Belgium, Bosnia Herzegovina, England Wales, Estonia, Finland, Germany, Ireland, Latvia, Lithuania, Luxembourg, Netherlands, Portugal, Romania, Scotland, Spain, Cyprus - twelve points for all these countries- Handbook "Legal restrictions" 4

Handbook-project of the WG International Law: „Legal restrictions““ • Reminder: the Structure of the Handbook-project of the WG International Law: „Legal restrictions““ • Reminder: the Structure of the Questionnaire: A) Preface- the purpose of the ELRA Handbook B) Scope of the Handbook: real estate property transfer and property registration C) Legal restrictions in the field of real estate property transfer and property registration D) The philosophy of legal restrictions E) Annex/ documentation Handbook "Legal restrictions" 5

Handbook-project of the WG International Law: „Legal restrictions““ C) I) Legal restrictions: = acquisition Handbook-project of the WG International Law: „Legal restrictions““ C) I) Legal restrictions: = acquisition of immoveable property by foreign persons/ companies: any legal restrictions? Bosnia-Herzegovina: federal law may provide that a foreign person can not have the right to own real estate; foreign persons may be limited in acquiring property rights (under the condition of reciprocity) Estonia: according to the Restrictions on Acquisition of Immoveables Act, there are legal restrictions foreign citizens; however, the contribution also mentions a draft, which should get into force in May 2011 (no restrictions more foreign citizens belonging to the European Union) Handbook "Legal restrictions" • 6

Handbook-project of the WG International Law: „Legal restrictions““ C) I) Legal restrictions: = acquisition Handbook-project of the WG International Law: „Legal restrictions““ C) I) Legal restrictions: = acquisition of immoveable property by foreign persons/ companies: any legal restrictions? • • Latvia, Lithuania since May, 1, 2011, EU citizens are able to acquire land property on the same terms as Latvian or Lithuanian citizens Romania: there are different regimes for a member state citizen and for a non-member state citizen; regarding the permission, a certificate is issued by the municipality; this certificate is not compulsory for a transaction Handbook "Legal restrictions" 7

Handbook-project of the WG International Law: „Legal restrictions““ II) Acquisition of agricultural land: restrictions Handbook-project of the WG International Law: „Legal restrictions““ II) Acquisition of agricultural land: restrictions and limitations Question: are there any legal restrictions that affect a foreign citizen wishing to purchase agricultural land? Are any permits required by a foreign citizen? Are these matters covered by the Land Registry Procedure? If so, please describe the procedure and name the relevant authority that must grant approval. Are any permits required by a domestic citizen? Handbook "Legal restrictions" 8

Handbook-project of the WG International Law: „Legal restrictions““ II) Acquisition of agricultural land: restrictions Handbook-project of the WG International Law: „Legal restrictions““ II) Acquisition of agricultural land: restrictions and limitations * Romania: a member-state natural or legal person shall be able to achieve agricultural land in Romania only 7 years from the moment when Romania has become a member of EU. This rule does not apply to farmers. * Bosnia Herzegovina: foreign nationals can not acquire ownership of agricultural land, but may inherit (Art. 99 of the Law on Agricultural Land) * Latvia: only EU citizens can purchase agricultural property; since May, 1, 2011, there are no legal restrictions anymore; these matters are not covered by the Land Registry Procedure Handbook "Legal restrictions" 9

Handbook-project of the WG International Law: „Legal restrictions““ III) Acquisition of flat property: legal Handbook-project of the WG International Law: „Legal restrictions““ III) Acquisition of flat property: legal restrictions Question: are there any legal restrictions, such as approval by other flat property owners or by the management company responsible for the real estate property? Are these matters covered by the Land Registry Procedure? If so, please describe the procedure. Handbook "Legal restrictions" 10

Handbook-project of the WG International Law: „Legal restrictions““ III) Acquisition of flat property: legal Handbook-project of the WG International Law: „Legal restrictions““ III) Acquisition of flat property: legal restrictions * Romania: there are no legal restrictions to buy a flat; there is no need to have an approval from the neighbours * Portugal: usually, the internal statutes do not content restrictions to property acquisition, only to regular use * England Wales: almost all flats are owned under leasehold titles; therefore, there are no restrictions imposed by the general law, but restrictions may be imposed by the lease of the flat Handbook "Legal restrictions" 11

Handbook-project of the WG International Law: „Legal restrictions““ IV) Acquisition in special areas (coast, Handbook-project of the WG International Law: „Legal restrictions““ IV) Acquisition in special areas (coast, near military-related sites or in national parks, in the mountains etc. ) Question: is a permit required for the acqusition of real estate property in such special areas? If so, please describe the procedure and name the relevant authority that must grant approval. Handbook "Legal restrictions" 12

Handbook-project of the WG International Law: „Legal restrictions““ IV) Acquisition in special areas (coast, Handbook-project of the WG International Law: „Legal restrictions““ IV) Acquisition in special areas (coast, near military-related sites or in national parks, in the mountains etc. ) * Lithuania: Article 47 of the Constitution of the Republic of Lithuania prescribes the exclusive ownership to the Repubic regarding waters, forests, parks, roads or historical cultural objects of State importance * England Wales: permits are not required, however there a number of provisions for public bodies to enter into agreements with landowners (in sensitive areas) Handbook "Legal restrictions" 13

Handbook-project of the WG International Law: „Legal restrictions““ IV) Acquisition in special areas (coast, Handbook-project of the WG International Law: „Legal restrictions““ IV) Acquisition in special areas (coast, near military-related sites or in national parks, in the mountains etc. ) * Portugal: gives also a map about national and natural parks in it´s answer; see www. icnb. pt * Scotland: no such permits are needed in Scotland * Cyprus: a notification may be given to the purchaser in these cases; however, this restriction can not prohibit the transfer Handbook "Legal restrictions" 14

Handbook-project of the WG International Law: „Legal restrictions““ V) Acquisition of immoveable property and Handbook-project of the WG International Law: „Legal restrictions““ V) Acquisition of immoveable property and listed monuments and memorials Question: is a special permit required for the acquisition of monuments or listed memorial buildings? If yes, please name the relevant authority that must grant approval. Is this part of the Land Registry Procedure? Handbook "Legal restrictions" 15

Handbook-project of the WG International Law: „Legal restrictions““ V) Acquisition of immoveable property and Handbook-project of the WG International Law: „Legal restrictions““ V) Acquisition of immoveable property and listed monuments and memorials * Portugal: monuments and listed buildings are supervised by the Institute for Management of Architectural and Archaeological Patrimony; however, Land Registry Procedure does not cover these matters * Netherlands: no special permits required; the owner has to tolerate requirements conc. the maintenance of monuments and memorials; these requirements are signed in the Land Registry Handbook "Legal restrictions" 16

Handbook-project of the WG International Law: „Legal restrictions““ V) Acquisition of immoveable property and Handbook-project of the WG International Law: „Legal restrictions““ V) Acquisition of immoveable property and listed monuments and memorials * Romania: Romanian law provides a pre-emption right for the State or the Municipality; there are no provisions in the Land Registry Procedure Handbook "Legal restrictions" 17

Handbook-project of the WG International Law: „Legal restrictions““ VI) Planning Code and legal restrictions Handbook-project of the WG International Law: „Legal restrictions““ VI) Planning Code and legal restrictions Question: does your municipalities or the government have a special pre-emption right to property? Does land division require a special permit? If yes, please name the relevant authority that must grant approval. Are these matters covered by the Land Registry Procedure? Handbook "Legal restrictions" 18

Handbook-project of the WG International Law: „Legal restrictions““ VI) Planning Code and legal restrictions Handbook-project of the WG International Law: „Legal restrictions““ VI) Planning Code and legal restrictions * Belgium: different public authorities have various pre-emption rights; furthermore, a division can not be executed without the approval of the local or regional authority; however, the purchaser and the notary are responsible for complying with these rules, not the registrar * England Wales: municipalities, central government and some public utility companies have powers of compulsory purchase; usually, no permit is required for land division Handbook "Legal restrictions" 19

Handbook-project of the WG International Law: „Legal restrictions““ VI) Planning Code and legal restrictions Handbook-project of the WG International Law: „Legal restrictions““ VI) Planning Code and legal restrictions * Finland: the municipalities have a pre-emption right in certain cases; in a few cases, the division of land needs a permit; the pre-emption right is covered by land registration, so that the application of title registration shall be left in abeyance until the deadline has passed (=deadline for the municipality to use a pre-emption right) Handbook "Legal restrictions" 20

Handbook-project of the WG International Law: „Legal restrictions““ VII) Land given by the municipality Handbook-project of the WG International Law: „Legal restrictions““ VII) Land given by the municipality to domestic inhabitants: legal restrictions? Question: does your national law have a so-called „local residents model“, the allocation of land by municipality under the conditions that the buyer is obliged to keep the land not to move away for a specific number of years? Any legal restrictions for the purchaser? Handbook "Legal restrictions" 21

Handbook-project of the WG International Law: „Legal restrictions““ VII) Land given by the municipality Handbook-project of the WG International Law: „Legal restrictions““ VII) Land given by the municipality to domestic inhabitants: legal restrictions? * Ireland: certain local authorities have placed restrictions such as a local resident´s model and each local authority differs in that regard * Lithuania: such model is not provided in the law of Lithuania Handbook "Legal restrictions" 22

Handbook-project of the WG International Law: „Legal restrictions““ VII) Land given by the municipality Handbook-project of the WG International Law: „Legal restrictions““ VII) Land given by the municipality to domestic inhabitants: legal restrictions? * Portugal: there are some legal models for some specific type of families, due to social reasons; these immoveables are sold under some legal restrictions, such as keeping the property for some years (normally 5 years); and these restrictions are included at the registration act Handbook "Legal restrictions" 23

Handbook-project of the WG International Law: „Legal restrictions““ VIII) Acquisition of immoveable property and Handbook-project of the WG International Law: „Legal restrictions““ VIII) Acquisition of immoveable property and tax affairs Question: must the transfer tax be paid before or after the registration? Can the Land Registry office carry out the property registration without a certification from the tax office? Handbook "Legal restrictions" 24

Handbook-project of the WG International Law: „Legal restrictions““ VIII) Acquisition of immoveable property and Handbook-project of the WG International Law: „Legal restrictions““ VIII) Acquisition of immoveable property and tax affairs * Spain: previous payment of the relevant taxes is absolutely compulsory; the Land Registrar is not able to check the documents without previous accreditation of payment * Romania: Art. 77 of the Fiscal Code regulates the obligation of the registrar to reject registration in case the tax is not paid Handbook "Legal restrictions" 25

Handbook-project of the WG International Law: „Legal restrictions““ VIII) Acquisition of immoveable property and Handbook-project of the WG International Law: „Legal restrictions““ VIII) Acquisition of immoveable property and tax affairs * Scotland: the Keeper of the Land Register can only accept an application for registration if the relevant deed is accompanied by either a Self Certificate or a Revenue Certificate *Latvia: buyer must pay transfer tax, but it is not required at the moment of propery registration; State Revenue Service controls the transfer tax payment. Handbook "Legal restrictions" 26

Handbook-project of the WG International Law: „Legal restrictions““ IX) Destination of the land parcel Handbook-project of the WG International Law: „Legal restrictions““ IX) Destination of the land parcel and legal restrictions Question: does your national law have special legal restrictions that are already apparent from the description of the land parcel? Handbook "Legal restrictions" 27

Handbook-project of the WG International Law: „Legal restrictions““ IX) Destination of the land parcel Handbook-project of the WG International Law: „Legal restrictions““ IX) Destination of the land parcel and legal restrictions * Netherlands: if there are special legal restrictions, they will appear from the description of the land parcel * Portugal: legal restrictions normally appear not in the description of the land parcel; if there any restrictions, they are registered as such * Estonia: no, so one can only assume that there may be some legal restrictions Handbook "Legal restrictions" 28

Handbook-project of the WG International Law: „Legal restrictions““ X) Any other legal, very specific Handbook-project of the WG International Law: „Legal restrictions““ X) Any other legal, very specific legal restriction? Question: does your national law have other, very specific legal restrictions that the Land Registry must observe? If yes, please describe them and their impact on the Land Registry Procedure. Handbook "Legal restrictions" 29

Handbook-project of the WG International Law: „Legal restrictions““ X) Any other legal, very specific Handbook-project of the WG International Law: „Legal restrictions““ X) Any other legal, very specific legal restriction? * England Wales: a number of important matters are entered in the Register of Local Land Charges, which must be kept by every municipality * Spain: very special legal restrictions in order to protect the civil population, to protect the environment, the communications, the rivers and the legality of urban development Handbook "Legal restrictions" 30

Handbook-project of the WG International Law: „Legal restrictions““ D) The philosophy of legal restrictions Handbook-project of the WG International Law: „Legal restrictions““ D) The philosophy of legal restrictions Some general remarks about the philosophy of legal restrictions: Ecological social welfare-state; to protect public and general Interests; solving the conflict between the public and the Individual; nature conservation; protection of the national and State border; protection of the environment; to promote and protect the fundamental right to housing. Handbook "Legal restrictions" 31

Handbook-project of the WG International Law: „Legal restrictions““ E) Annex/ documentation A lot of Handbook-project of the WG International Law: „Legal restrictions““ E) Annex/ documentation A lot of national legislation texts or documents can be found in the Handbook "Legal restrictions" 32

Handbook-project of the WG International Law: „Legal restrictions““ Thank you for supporting the ELRA Handbook-project of the WG International Law: „Legal restrictions““ Thank you for supporting the ELRA Working Group International Law! Harald Wilsch, Local Court of Munich, Bavaria Handbook "Legal restrictions" 33