Экзамен зачет учебный год 2023 / Pradi, From Contract to Registration

ALESSIO GRECO

(Löschungsklage), which aims at eliminating those entries harming the claimant’s title, but simply an action for correction of the entry (Berichtigungsklage). As seen for the recourse and the action for cancellation, once the court is asked to hear the case, the court will provide for the registration of the Streitanmerkung, which will produce vis-à-vis the third party who has acquired a right in rem based upon the trust of the correctness of the entry into the register the above-mentioned effects (GBG §§ 69-71)72. In case the Streitanmerkung cannot be registered (e.g. expiration of the term), the Act on the Enforcement of Civil Judgments (Exekutionsordnung) provides in EO § 382(1) n. 6 that the court can grant to the claimant a temporary restriction order which will be entered into the register ex officio (EO § 384(2)) and which will prevent the registered right-holder/defendant from exercising his right over the contended immoveable73.

Bibliographical References

FABER W. [LURGER B.] (edited by), National Reports on the Transfer of Movables in Europe, vol. I, Munich (2008); FEIL E., Österreichisches Grundbuchsrecht. Eine systematische Darstellung, Vienna-New York (1972), 78; GSCHNITZER F., Österreichisches Sachenrecht, Vien- na-New York (2nd ed., 1985); GSCHNITZER F., Allgemeiner Teil des bürgerlichen Rechts, Vienna-New York (2nd ed., 1992); HÖFLINGER E.,

Austrian cadastre and database on real estate fully opened to the public, FIG XXI Congress and Commission 7 Annual Meeting (Brighton, UK) 19-25 July 1998, <http://www.sli.unimelb.edu.au/fig7/Brighton98/ Comm7Papers/TS34-Hoeflinger.html>; IRO G., Bürgerliches Recht. Sachenrecht, Vienna-New York (3rd ed., 2008), vol. IV; KLANG H. (edited by), Kommentar zum Allgemeinen Bürgerlichen Gesetzbuch, Vienna (2nd ed., 1950), vol. II; KOZIOL H. [BYDLINSKI P., BOLLENBERGER R.] (edited by), Kurzkommentar zum ABGB: Allgemeines bürgerliches Gesetzbuch, Vienna (2nd ed., 2007); MANSBERGER R. [MUGGEN-

72G. IRO, cit., 127; F. GSCHNITZER, Sachenrecht, cit., 44.

73G. IRO, ibidem.

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TRANSFER OF IMMOVEABLE PROPERTY

IN GREECE

Anastasios Moraitis*

1. General Information

The main rule for the transfer of ownership of immovables in Greek law is found in art. 1033 of the Greek Civil Code (Astikós Kódikas; henceforth: CC):

“Transfer of ownership in immovable property requires an agreement between the owner and the acquirer that ownership passes to the latter on grounds of a legal causa. The agreement is documented in a notarial deed and it is subject to registration”.

From this rather self-explicit rule, one can deduce the legal prerequisites and the basic principles governing the Greek system for the transfer of immovables. The prerequisites will be analysed in more detail below. First of all, as far as the basic principles of this transfer system are concerned, the principle of distinction applies1, meaning that the in rem contract, the transfer agreement stricto sensu, must be distinguished from the underlying causa (most often a contract of sale, but also barter, donation, a testament or other suitable title to transfer). Furthermore, the Greek system for the transfer of immovables is a causal2

* University Assistant and PhD-candidate at the Law Faculty of the University of Graz, Austria; Attorney-at-law (Athens Bar).

1For the principle of distinction in the context of the transfer of movables, see Georgiades, Property Law (Εμπράγματο Δίκαιο), 2nd edition (2010), § 48 nos. 2 et seq. [henceforth: Georgiades, EmprD2, § xxx no. xxx].

2For the concept of the causa and the distinction between causal and non-causal legal transactions in rem in Greek law, see Georgiades, EmprD2, § 6 nos. 32 et seq. For a short discussion of the abstract and causal systems of ownership transfer in the European context, see Bartels, An abstract or a causal system, in Faber & Lurger (eds.), Rules

ANASTASIOS MORAITIS

one: unlike the transfer of movable assets under Greek law3, the transfer of immovables requires a valid causa, without which it cannot become legally effective4. Finally, the transfer agreement (according to the prevailing opinion, also the underlying causa) must be drawn up in a notarial deed (principle of formality) and it is subject to registration (principle of publicity)5; this last point is of singular importance, since Greece is currently in a transitional period changing from a personal registration system (registration of transfer contracts and cataloguing by land owner) to a land registry system (concentration of all entries concerning transactions on a specific lot of land in a single registry unit). The aforementioned characteristics of the Greek system of transfer of immovables are discussed below in more detail in conjunction with the particular prerequisites of ownership transfer.

2. The Prerequisites for the Transfer of Ownership in Detail

From the provision mentioned above, it is inferred that transfer of immovables under Greek law is subject to five prerequisites: ownership of the transferor, transfer agreement, notarial deed, a cause in law for the conveyance (justa causa), and registration6.

for the transfer of movables – A candidate for European Harmonisation or National Reforms?, 59 et seq.

3Cf. art. 1034 CC, according to which ownership in movable assets is transferred by the agreement of the parties and delivery to the transferee. The principle of abstraction, according to which the validity of the transfer (in rem) agreement is irrelevant from that of the underlying causa, is applicable under Greek law only for chattels; see Georgiades, EmprD2, § 48 nos. 1, 6 et seq.; Spyridakis, Property Law Vol. B’/1 (Εμπράγματο Δίκαιο Τόμος Β’/1), no. 141.1.1 [henceforth: Spyridakis, EmprD B’/1, no. xxx].

4This requirement is not as self-explicit as it appears to be; see below under 2.4.

5For more information on the specific emanations of the publicity principle, see Georgiades, EmprD2, § 2 nos. 15 et seq.

6Georgiades, EmprD2, § 43 nos. 1 et seq.; cf. Filios, Property Law (Εμπράγματο Δίκαιο)4, § 85α Β. [henceforth: Filios, EmprD4, § xxx]; Papasteriou, Property Law Vol. II – Ownership (Εμπράγματο Δίκαιο Τόμος ΙΙ – Κυριότητα) (2008), § 45 nos. 5 et seq. [henceforth: Papasteriou, EmprD II, § xxx no. xxx].

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2.1. Ownership of the transferor

The first prerequisite, the ownership of the transferor (coupled with the authority to dispose of such ownership), is more or less self-evident and forms a specific emanation of the principle nemo plus iuris ad alium transferre potest quam ipse habet (oυδείς μετάγει πλέον ούτινος έχει δικαιώματος)7. However, the rule is not without exceptions, which serve legal certainty in property relations. Those exceptions either refer to the possibility of transfer by a non-owner or, on the contrary, cases where the true owner’s authority to dispose is restricted.

The first group of cases includes an insolvency administrator (art. 17 IC 2007), a testament executor (art. 2021 CC), or an inheritance liquidator (arts. 1918, 1908 CC), who may validly transfer ownership of assets that do not belong to them, but to the insolvent person or the estate of the deceased respectively; the same is true, when the transfer is effected by the person designated as heir in a certificate of inheritance (κληρονομητήριο), even if the certificate is later annulled or declared inaccurate (see arts. 1963 CC, 822 Greek Code of Civil ProcedureKódikas Politikís Dikonomías; henceforth: CPC ). More generally, according to art. 239 CC a transfer by a non-owner is valid, when the actual owner consents to it or, if his consent was not at hand at the time of the agreement, when he subsequently ratifies the transaction8. One could also add the cases of direct representation, whereby the owner’s agent alienates the principal’s property under the terms of arts. 211 et

7Áreios Págos (Greek Supreme Court) [henceforth: AP] 934/2000, Archío Nomologías (Greek law journal) [henceforth: ArchN] 2001, 490 et seq.; Court of Appeals [henceforth: CA] Chania 178/2005, published in the Athens Bar Association Law Database Isocrates [henceforth: Isocrates]; CA Athens 5707/1997, ArchN 1999, 194 (195). In fact, the transferor must be owner not only at the time of conclusion of the transfer agreement, but also at the time of its registration; AP 888/1977, Nomikó Víma (Greek law journal) [henceforth: NoV] 1978, 703; CA Athens 5707/1997, ArchN 1999, 194 (195); MCFI Athens 99/1990, Armenópulos (Greek law journal) [henceforth: Arm] 1992, 900 (901). Cf. Papasteriou, EmprD II, § 45 nos. 17 et seq.

8For all those cases, see Georgiades, EmprD2, § 43 nos. 4 et seq.; Papasteriou, EmprD II, § 45 nos. 26 et seq.

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seq. CC9, or the case of mortgage, where both the mortgagor and the mortgagee may sell the mortgaged land10. In any case, it must be noted that Greek law until recently (see Part 3.2. below) did not acknowledge the possibility of good faith acquisition of immovable property a non domino and restricted it solely to movable assets under arts. 1036 et seq. CC.

In the second group of cases, the true owner is not always unlimitedly entitled to transfer ownership of his immovable assets; the obstacles arising in this respect could be categorised as either: personal, namely when the owner is a minor, has been deprived of the authority to transfer his assets by court ruling, e.g. because he is declared insolvent (art. 17 IC 2007) or he is placed under court custodianship (arts. 1666 et seq. CC); or as estate-specific, which result from the specific status accorded by law to particular lots of land due to varying – and nowadays occasionally obsolete – circumstances (e.g. restrictions on the transfer to foreigners of estates lying at the land borders, forestry legislation, law of urban planning and constructions, restrictions on the alienation of land allotted by the State to certain social groups or belonging to Greek Muslims who were exchanged with Greek nationals from Turkey during the 1920s, etc.)11.

2.2. Transfer agreement

The second prerequisite is a transfer (in rem) agreement which effects the transfer and is distinct from the underlying causa, namely the personal (obligatory) agreement that only creates the obligation to transfer ownership. Although the law makes use of the term “agreement” and not “contract”, legal doctrine affirms that what is meant is the contract in rem for transfer of ownership (apparently under the influence of the German Civil Code, on which the relevant Greek provi-

9Spyridakis, EmprD B’/1, no. 139.3.1. For cases of indirect representation, see ibid., no. 139.5.2.

10Papasteriou, EmprD II, § 45 no. 22.

11For more details, see Spyridakis, EmprD B’/1, no. 139.6; Georgiades, EmprD2, § 43 nos. 6, 39 et seq.; Papasteriou, EmprD II, § 45 nos. 21 et seq. Also see Georgiades,

§6 nos. 28 et seq. for the general restrictions to the authority to dispose under the CC or specific laws.

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sions are based)12. Greek law follows in this respect the principle of distinction of the personal and the in rem contract (αρχή της διάκρισης της εμπράγματης από την ενοχική σύμβαση), although quite often they temporally coincide and are even included in the same notarial deed, as is evidenced by the standard terminology used in such documents, where expressions such as “A sells and transfers to B” or “A donates and transfers to B” are commonplace13. However, the two contracts need not necessarily be concluded simultaneously, nor do they have to be included in the same document.

2.3. Notarial form

One of the most important requirements of ownership transfer in immovable property is the necessity of a notarial deed (συμβολαιογραφικό έγγραφο). If the transfer contract is not recorded by a notary, the transfer is invalid (art. 159 § 1 CC), since the notarial deed is prescribed by law. The importance of this requirement is reflected in the fact that it is imposed both by the aforementioned rule for the transfer of ownership in movables (art. 1033 CC) and art. 369 CC, which has a more general scope:

“Contracts for the creation, transfer, modification, or abolition of rights in rem in an immovable must be concluded before a notary public”.

Even though legal doctrine is not unanimous on whether the notarial form is imposed by both provisions or only by art. 1033 CC, it is commonly accepted that both the transfer contract and the underlying causa are subject to the notarial form14. This requirement aims at furthering

12Georgiades, EmprD2, § 43 nos. 31 et seq.; Spyridakis, EmprD B’/1, no. 139.2.1.; Papasteriou, EmprD II, § 45 no. 42. Contrary to the transfer of chattels under Greek law (art. 1034 CC), delivery does not form an integral part of the in rem transfer contract of immovables. For the practical implications of delivery in the context of transfer of immovables, see Part 4. 2. below.

13Georgiades, EmprD2, § 43 no. 24.

14See e.g. AP 652/2015, NOMOS Online Law Database [henceforth: NOMOS]; AP 1566/2001, Chroniká Idiotikú Dikéu (Greek law journal) [henceforth: ChrIdD] 2002, 24; AP 132/1971, NoV 1971, 620; AP 601/1971, NoV 1972, 54 (55); Georgi-

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legal certainty in property relations in land, but also serves a cautionary purpose by ensuring that the contracting parties are fully aware of the significance of their legal acts and they have been sufficiently instructed thereupon; moreover, it facilitates proof of the conveyance, serves tax law purposes, etc. Apart from the transfer contract, a series of other contracts are also subject to the notarial form, such as the preliminary contract for the sale of immovables (προσύμφωνo), the contract granting the option to purchase an immovable in the future (σύμφωνo προαιρέσεως), the consent (συναίνεση) to or subsequent approval (έγκριση) of the transfer by the true owner, the granting of authority (πληρεξουσιότητα) to alienate (but not the mandate [εντολή] to purchase an immovable), etc.15.

2.4. Justa causa

The fourth requirement consists of the existence of a valid underlying personal (obligatory) agreement that creates the duty to transfer ownership. It does not matter whether the causa has been concluded before or simultaneously with the transfer contract; crucial is the fact that it must be explicitly and specifically mentioned in the latter16. As mentioned above, it is usual in practice that both contracts are included in the same deed. A valid causa for the transfer of ownership in immovables usually consists in a personal contract suitable for this purpose, but it may also be a multilateral or unilateral legal transaction; examples include contracts for sale, barter, donation, the so-called “parental grant” (γονική παροχή)17, settlement agreements, or testamentary

ades, EmprD2, § 43 no. 9; Filios, EmprD4, § 86. A. 1.; Papasteriou, EmprD II, § 45 nos. 67, 73.

15Georgiades, EmprD2, § 43 nos. 10 et seq.; Papasteriou, EmprD II, § 45 nos. 75 et seq.; Spyridakis, EmprD B’/1, nos. 139.2.4, 139.3.1 et seq., who, however, bases the necessity of a notarial deed for the transfer agreement on art. 1033 CC alone.

16Georgiades, EmprD2, § 43 nos. 22 et seq.; Spyridakis, EmprD B’/1, nos. 139.2.5.

17Parental grants under Greek law are a specific form of donation inter vivos for specific purposes from parents to their children, which are accompanied by substantial tax benefits in comparison to transfer by normal donation, sale or inheritance (see art. 1509 CC and art. B law 1329/1983, Government Gazette Issue [henceforth: GGI] A’

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