Legal effects of Registration

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A) Internal effects: effects to the right itself and the entitlement

a) Registration and the process of transfer/acquisition of property rights

Constitutive vs. declarative

By entering into a legal transaction, the acquirer faces a mandatory legal requirement to have a real property right transferred to (such as real property ownership) or created for (such as a mortgage, servitude) him/her by the alienator. Only after such a real property right is registered in the land registers on behalf of the acquirer shall the acquirer become its holder. Such a registration in the land register is then constitutive (constitutive, acquiring function of the registration) because the real property is acquired only upon the registration. The registration in the land register shall be constitutive also when the real property rights are modified or when they cease on the basis of a legal transaction.

 

Compulsory vs. voluntary

 

The moment of acquisition of the real property ownership equals the moment of ownership registration in the land register on behalf of the acquirer. The registration is voluntary but if the title registration is applied for after the expiration of 60 days from the day when the conditions for registering in the land register or book of deposited contracts were met, the court fees shall be five times as high as the standard court fees for this type of registration.

 

b) Effects to legitimize the owner

 

Legal presumptions. Registration as evidence of the right

 

A right is proven by registration. A real property title is proven by a land registry extract.

 

Effects of registration and possession: adverse possession

 

Protection of trust in the veracity and completeness of land registers is the main principle of land registry law and it is stipulated by the Land Registration Act which proscribes that the above mentioned shall not apply to acquisitions generated before 1 January 2017 if they involve a real property with registered social ownership that was not deleted prior to the enforcement of the Act (1 January 1997).

 

Remedies and procedural actions derived from registration: actions derived from registration.

 

A dissatisfied party may file an objection against the decision of a licensed land registry clerk and court advisor while, against the decision on the objection, it may file an appeal. A land registration judge shall decide on the objection voiced against the decision of a licensed land registry clerk or court advisor.

 

B) External effects: effects to third parties

 

Negative effect: opposing effect of registered rights against non registered rights.

 

The registered title holder in the land registers is the owner while the unregistered owner must prove his/her title.

 

Positive effect. Indefeasibility principle. Bona fides effect. Requirements

 

The person, acting in good faith when registering a title and with trust in the completeness of land registers, shall acquire the right free of encumbrances that were not registered at the time when the registration was requested or whose registration applications were not visible in the land registers at the time, unless stipulated otherwise by law.

C) Different kinds of registration and its effects:

a) Class of title

Ownership may be acquired by a legal transaction, by a decision of the court or another competent authority, by inheritance or by the operation of law. Any person who acquires the right of ownership of a piece of real property by a decision of the court or another authority is authorised to obtain entry of the acquired right of ownership in the land register. Also, the heir and any person which acquires a real property by the operation of law is authorised to obtain entry of his right of ownership of a piece of real property in the land register.

b) Type of entry

Land register entries shall include registration, conditional registration and recordation. The registration is an entry by which registered property rights are acquired, conveyed, limited or terminated without any special additional justifications. Conditional registration shall include entries whereby registered property rights are acquired, transferred, restricted or terminated, but only on condition that and inasmuch as such rights are subsequently justified. Recordation shall include entries clearly indicating all relevant circumstances which, according to law, may be recorded in land registers. Where and as stipulated by law, recordation may provide a basis for certain legal effects.

c) First registration limitations

Unknown in Croatian land registration law

d) Type of information: physical data/ legal data, associated data

Physical data – The land registers are based on the cadastral survey data. The property section shall be used for the registration of all constituent parts of registered land units, as well as all such proprietary rights as may exist in favour of registered land units or any proportional share in co-owned registered land units. All cadastral changes pertaining to any registered land unit (modifications in the number, name, surface area, development level of a cadastral parcel, etc.)

 

Legal data – The ownership section shall be used for the registration of titles over entire registered land units. The ownership section shall also be used for the registration of such restrictions as may personally be imposed o proprietors as to their powers to manage or dispose freely. The encumbrance sections shall be used for the registration of all proprietary rights encumbering registered land units or proportional shares in co-owned land units, as well as all such rights as may be acquired on the basis thereof, such as the rights to buy back, pre-empt, lease and let, and all such restrictions on powers to dispose of registered land units or shares in co-owned land units as may be imposed on owners of encumbered land.