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International Mortgage Law within the Commission International Litigation
From Rechtsanwalt Dr. Götz-Sebastian Hök
The EJ-Commission International Litigation has already worked on international mortgage law and prepared national reports on mortgage law for several countries, e.g.
- England
- Spain
- Germany
- France
- Greece
- Belgium
- Canada
- Italy
- The EJ-Commission is aware of the facts that
- Mortgage law is a part of real estate law thus being more or less governed by the lex rei sitae
- However, mortgages are an instrument to guaranty building loans, which are often enforceable per se because of the fact that they are made in the form of a notarial instrument (Germany, France, Greece etc.)
- This kind of enforceable instrument falls under the Regulation 805/2004 concerning uncontested claims, thus being enforceable EC-wide without any further formal registration or recognition under the Regulation 44/2001: The Commission has worked on this topic as well
- However a lot of problems may arise from the fact that notary acts are not harmonised at all, e.g. a French deed is enforceable only because it has been made by a notary,
- meanwhile in Germany pursuant to § 800 ZPO the owner may make himself liable to immediate execution in a document drawn up pursuant to § 794 ph. 1 n° 5 ZPO with respect to a mortgage , a land charge or an annuity charge in such manner that the execution be permissible against any person who is the owner at the time in question
- meanwhile in England even a mortgage loan being established under a deed would not be enforceable as such. However, the bank is allowed to proceed for compulsory sale of the asset if a mortgage has been registered against the land of the debtor.
- The EJ-Commission is aware of the facts that
- Mortgage law is also a part of enforcement law, thus being very formal and locally ruled
- However, banks want to know how they can enforce their mortgage instrument in the event of breach of contract by the debtor
- Whilst e.g. in Germany and in France a formal legal procedure has to be opened if the bank wants to sell the asset, in England –generally spoken- it is the bank itself who will sell the interest.
- More and more consumer protection law leads to less protection of the bank
- Therefore it is the cible of the Commission:
- to exchange knowledge as to the cross-border enforcement of mortgages
- to ensure that the members of the commission obtain the necessary tools for their daily work
- that its members will be able to understand the different systems of mortgages, hypothèques and land charges thus being able to give legal advise and to provide assistance in legal proceedings for cross border cases
- Therefore the EJ-Comisssion International Litigation and Safer Export of Goods and Services
- prepared reports on
- Land registers
- the character of mortgage instruments
- Procedure of Adjudication (compulsory sale)
- available on a special website
- www.hypotheca-europae.net
- held a conference in Wiesbaden concerning European Mortgage Law
LAW OFFICE Dr. Hök, Stieglmeier & Kollegen
Contact: Advocate Dr.Götz-Sebastian Hök
Eschenallee 22,
14050 Berlin
Tel.: 00 49 (0) 30 3000 760-0
Fax: 00 49 (0) 30 3000 760 33
e-mail: kanzlei@dr-hoek.de
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