Closest equivalent rights and adaptation

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1. What are the main rights in rem arising from successions in your system?

  • Ownership : eigendom , propriété
  • Usufructus : vruchtgebruik, usufruit
  • Legal usufructus of the widow(er) : if there is no marital contract, a statutory system is applied, which is called the legal regime and confers the widow/widower usufructus.
  • Bare Ownership : Blote eigendom / nue –propriété

2. What would the role of your Land Register or registrars be in order to put in practice the principle of adaptation? What contributions could the Land Register make?

It would be wise to collaborate with notaries. They are in a way the front office.

They will have to deal with the question of conversion of an unknown right in rem into a known, registrable right in rem. Legal systems differ too much to simply accept existing rights abroad.

The Belgian system does not require registration at the moment of transition of rights due to inheritance. So, most probably the problem will only arise in the next stadium, when the property will be sold again or devided.

It’s obvious that the notary should try to convert the rights described in the foreign certificate into the closest existing equivalent right in the country where the property is situated.

Free movement of services should of course be taken into account. But in most cases it’s not likely that a foreign notary will have sufficient expertise to translate the rights described in the certificate into existing local legislation without appealing for mediation of a local notary.

The land registrars are, again in a way the back office. They should be consulted as experts in matters of land law and land registration law. The registrar could have a supervisory/ advisory role.

  • Imagine you receive a request for the registration of a foreign European Certificate of Succession. It follows from this Certificate that one of the heirs is entitled to a right that is not part of your national numerus clausus. How do you approach this problem?
    In general it is only is obliged to register deeds that contain a transition of Belgian rights in rem of real property. However it is common that if other deeds are presented by a notary, the registrar accepts to register them.
    Since we have a deed system, in that case, we simply transcribe the deed, which does not have any legal effect on the right itself. Only courts are qualified to take these decisions

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