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
In the “transcription system”, in force in the most part of the Italian territory, the main internal effect of registration is merely declaratory, where the creation or the transfer of the right is independent from registration. According to the principle established under Art.1376 of the Italian civil code, the transfer of rights in rem is brought into effect when both parties state their agreement in writing.
If the registration has been omitted, the only legal consequence is that the following registrations against the acquirer cannot produce effects until the previous deed of acquisition has not been registered (so called “continuity principle” art. 2650 of the civil code). Once the previous deed of acquisition has been registered, the following registrations produce effects according to their respective order, except for cases provided by art. 2644, that is when a conflicting deed of acquisition has already been registered (the first one who makes the transcription gets the property).
According to this peculiarity, the Italian system is to be classified as “negative registration”, because here registration primarily serves to block other rights.
Compulsory vs. Voluntary
Registration is not compulsory to acquire the right. The Notary or the public official that has drawn up the deed or certified the signatures is bound to ask for transcription as soon as possible in order to obtain the opposability effect against third parties (art.2671 of the civil code). This is the reason why the requests for transcription are mainly submitted by attesting officials, judges, public administrations, but they can be submitted by lawyers and citizens, as well, even if this occurs less frequently. In this sense we can say that transcription is an onus for the contractual party in order to protect his private interests but at the same time it is a duty for other subjects in order to protect the general interest regarding the circulation of rights in rem.
On the other hand, we can observe how, in our system, transcription is also provided in order to satisfy various public interests: in these cases it normally has merely notice effects ( for example: registration of city planning deeds or acts, cultural or historical liens and so on )
b) Effects to legitimize the owner
Legal presumptions. Registration as evidence of the right
Transcription doesn’t give evidence of the right, it is only finalized to the opposability of registered deed against third parties, in order to solve possible conflicts between different buyers (the first one who makes the transcription gets the property). In fact, transcription doesn’t produce effects on substantial rights:
– It is an undisputed principle that transcription does not prove that the person entitled in the register is the owner of the property according to substantial rights;
– Transcription does not have a legitimizing effect on the title flaws;
– It does not affect obligations between the parties who are obliged to respect the binding agreement, independently from the publicity of the deed.
Referring to presumptions, once a deed is transcribed, it is not possible for anyone to prove his lack of knowledge against the transcription, nor his bona fides. Thus, transcription doesn’t give rise to a legal presumption of the real knowledge of the registered deeds; this is irrelevant to solve conflicts.
Effects of registration and possession: adverse possession
Transcription doesn’t have effects in matter of adverse possession. The Italian civil code provides – in article 2651- the registration of judicial decisions pronouncing the adverse possession but it doesn’t provide any related effect. The most eminent jurisprudence complies with the idea that art. 2644 of the civil code – stating the opposability principle – doesn’t apply to adverse possession, as the purchase is opposable to third parties independently from the registration of the decision. So we can say that transcription, in this case, only has a notice function. The continuity principle doesn’t apply to this kind of transcription, as can be argued considering the position of the rule (after art 2650 that states the continuity principle) but mainly because the adverse possession is not a derivative acquisition, to which that principle only can apply.
Remedies and procedural actions derived from registration: actions derived from registration.
According to article 2665 of the civil code, omissions or inaccuracies in the notations through which a registration is submitted to the registrar, determine the invalidity of the transcription only if such flaws concern the person, the asset or the legal relationship to which the deed, the judicial decision or the claim, are related. In these circumstances, the interested party can appeal to a judge in application of the general rules concerning the compensation of damage. The claim must be transcribed according to art. 2652, par.1, n.6).
Furthermore, the law (art. 2674 and 2674 bis, civil code; art. 113-bis and 113 ter of implementation provisions to the civil code) provides specific remedies against the deny of registration (in case of lack of formal requirements in the deed or in the notation) or when the registrar (Conservatore) manifests to the applicant any doubt related to the possibility to apply for the registration in the specific case. In this latter situation, the applicant can ask a provisional registration (so called “trascrizione con riserva”) and, during a time of 30 days from this registration, can appeal to a judge (voluntary jurisdiction procedure) in order to obtain a definitive registration.
B) External effects: effects to third parties
Negative effect: opposing effect of registered rights against non -registered rights.
The principle of opposability based on registration might be demonstrated by the Italian rule:
“Deeds listed in the previous article (2643) don’t have effect on third parties which, at any title, have acquired property rights on the basis of a previously transcribed or inscribed deed.
Once registration has been done, no transcription or inscription of rights acquired from his seller can be effective against the one who registered, although the acquisition might be prior in time.” (art. 2644 of the civil code).
This cardinal rule states the principle according to which, the one who first registers is preferred over the one who registers later or doesn’t register the deed at all.
It is also called negative registration, because here registration primarily serves to block other conflicting rights, not to constitute the right itself.
This provision cannot lead to infer that the person who loses the right on the asset can be deprived of any protection by the law. In fact it will be possible to claim a compensation against the vendor who sold twice the same asset. According to the prevalent interpretation, it will not be possible to pretend anything from the other buyer, except for the case of collusion with the seller, with the consequent extra contractual liability.
Positive effect. Indefeasibility principle. Bona fides effect. Requirements
The Italian Land Registry is based on a declaratory system which does not protect the good faith. An important exception is that registration is constitutive for mortgages, foreclosures and seizures. The mortgage comes in existence only through the inscription in the register; foreclosure and seizure procedures are executed through the registration.
C) Different kinds of registration and its effects:
a) Class of title
b) Type of entry
c) First registration limitations
d) Type of information: physical data/ legal data, associated data
As said above, in the Italian system (see specifically articles 2643-2645 of the civil code) we do not register titles or rights but deeds, acts, judicial decisions:
– Transferring ownership (the full ownership or an undivided portion);
– Creating, transferring, or modifying property rights (the full right or a share) such as usufruct, emphytheusis;
– Creating or modifying use, habitation, easement rights;
– Creating, modifying or transferring building rights;
– In the enforcement, decisions transferring ownership or other property rights;
– Rents lasting more than 9 years;
– Mediation agreements stating usucapion with subscription of the minutes certified by an authorized public officer;
– Transactions concerning disputes about the above mentioned rights.
The list in art 2643 is not exhaustive. In fact art. 2645 states that “It must be published, to the ends of the previous article, any other act or provision which produces some of the effects of the contracts mentioned in art. 2643 ..”
In all the above mentioned cases, transcription fulfils a declaratory function and its effects are provided by art 2644 of the civil code (opposability).
The other articles of the Civil Code providing the registration of real rights are the following:
– 2645-bis: preliminary contracts concerning the future drawing of some of the above listed deeds;
– 2645-ter: public deeds stating the destination, for a period not longer than 90 years or life lasting, to satisfy worthy interests of handicapped persons, public administrations, or other entities or physical persons.
– 2645-quater: all the deeds creating public restrictions for the benefit of State, local bodies, or institutions managing other public services.
– 2646: division deeds and judicial decisions concerning the division of properties in the proceedings for the assignment through auction.
– 2647: deeds ruling the marital agreements and their modifications.
– 2648: deeds concerning the acceptance of inheritance or legacy.
– 2649: transfers of properties by the debtor to his creditors.
In addition to the mortgage, which is created with the inscription in the specific register, there are two kinds of judicial decisions that must be transcribed with constitutive effect:
– The foreclosure (art. 555 Civil Procedure Code)
– The conservative seizure (art. 679 Civil Procedure Code).Moreover, it is necessary to register the claims listed in the art. 2652 and 2653 of the Civil Code, including, for example:
– claims to terminate contracts and to revoke donations;
– claims asking for the execution of a preliminary contract;
– claims asking for the judicial verification of the signature in private documents including an agreement subject to registration;
– claims aimed to verifying simulation in documents subject to registration;
– claims asking the revocation of deeds subject to registration that were detrimental for creditors;
– claims aimed to declare the invalidity of deeds subject to registration and claims contesting the validity of registration itself;
– claims contesting the foundation of an inheritance or a legacy;
– claims to reduce donations and last wills in violation of the rules concerning the share of an estate assigned by law to a specific relative (so called “legittima”);
– claims for property rights or other legal rights on property;
– claims to terminate communion between spouses;
– deeds and claims interrupting the usucapion period.
In these cases registration has the effect to make knowable the pending dispute to third parties, so that the judicial decision in favour of the claimer can be opposed to them with retroactive value.
Finally, there are deeds, acts or decisions (such as those declaring the prescription or the usucapion of some of the rights listed in art. 2643), to be transcribed with a merely notice effect.