учебный год 2023 / Stöcker, Stürner, Flexibility, Security and Efficiency of Security Rights over Real Property in Europe. Vol. III

II.18

Is the transfer of a security

1

5

3

5

(3)

possible = protection of the

8

8

7

8

right over real property

acquirer

effective if done by a

(2)

in principle not possible =

2

2

3

2

registered mortgagee who

protection of the true mortgagee

is not the true mortgagee?

(1) only the possession of the

7

7

6

7

security right certificate is decisive

II.19

Is good faith acquisition of

2

3

2

3

(4)

no

9

9

8

9

a security right over real

(3)

to some extent

5

5

5

5

property dependent on the

(2) yes

2

2

2

2

expiration of a time limit?

(1)

good faith acquisition not

1

1

1

1

possible

II.20

Does an acquirer of property

1

3

5

4

(2)

yes (legal relations are

6

6

7

7

who is in good faith regarding

protected)

the fact that there is no security

(1)

no (true owner is protected)

4

4

3

3

right over real property acquire

the property unencumbered?

(extinction of a contractual se-

curity right over real property)

III.

Effects of accessoriness

(1)

(2)

(3)

(4)

specification

(1)

(2)

(3)

(4)

bank/

bank/

owner

legislator

bank/

bank/

owner

legislator

enforce-

usability

enforce-

usability

ment

ment

III.1

If a security right over real

0

3

1

4

(3)

neither a claim nor a legal

8

7

7

property has been created,

foundation for it is necessary

is it effective even if there

(2)

a legal foundation for the

5

5

5

is not yet a secured claim?

claim to be secured is necessary

(accessoriness of origin)

(1)

legal foundation as well as a

2

3

3

(conditional) claim are necessary

III.2

Is it possible to register a

0

4

3

4

(2)

yes

8

8

8

higher amount for the security

(1) no

2

2

2

right over real property than

the size of the secured claim?

(accessoriness of scope)

III.3

Is the creditor of the secured

0

4

2

4

(2) no

9

6

8

claim by operation of law

(1) yes

1

4

2

always the mortgagee?

(accessoriness of competence)

III.4

Can the security right over

1

1

5

5

(2) yes

7

7

10

10

real property only be enforced

(1) no

3

3

0

0

if the secured claim can be

enforced? (accessoriness of

enforcement)

III.5

Does the extinguishment of

2

3

4

3

(2) no

6

7

8

8

the secured claim lead to the

(2) not if further claims may

5

5

5

5

extinguishment of the security

arise from the legal foundation

right over real property by

(1) yes

4

3

2

2

operation of law? (accessoriness

of extinguishment)

III.6

Is the security right over real

1

2

4

4

(4) yes, mandatory by law

6

7

9

9

property linked to the secured

(3) yes, customary practice

5

7

7

7

claim by a security agreement

(2) yes, seen as tacitely agreed

4

4

3

3

on the scope of the secured

(1) not necessary due to legal

6

0

1

1

claims?

accessoriness

III.7

How can subordinate (junior)

0

2

1

4

(4) the owner‘s right to those

4

6

9

mortgagees or unsecured

parts of the security right not

creditors acquire the position

(no more) needed for the secured

of the free parts of the first

claim can be assigned or seized/

ranking mortgage?

garnished

(3) it is only possible to register

5

5

6

subordinate rights which then

(economically) advance in

ranking

(2) it is not possible to be se-

6

4

4

cured on the real property, but to

participate in the proceeds

(1) only by agreement

7

1

1

IV.

Protection of the owner

(1)

(2)

(3)

(4)

specification

(1)

(2)

(3)

(4)

bank/

bank/

owner

legislator

bank/

bank/

owner

legislator

enforce-

usability

enforce-

usability

ment

ment

IV.1

Can the owner object that

1

2

5

4

(2) yes (owner protected)

3

3

10

8

there is no secured claim due

(1) no (mortgagee protected)

7

7

0

2

if the acquirer of the security

right over real property is in

good faith?

IV.2

Is it possible for the owner to

0

2

4

4

(3) yes, the mortgagee is obliged

3

10

9

have the registered amount of

to consent

the security right over real

(2) only if agreed when

5

5

5

property reduced when it is

establishing the security right

clear that only a part of the

(1) no, only if everything has

7

0

1

set maximum amount of the

been repaid

security right over real

property will be used?

IV.3

Is there statutory regulation

0

3

4

4

(2) yes

3

8

6

or court practice (case law)

(1) no

7

2

4

protecting the owner of a real

property who has established a

security right over real proper-

ty to secure another person’s

debt? (protection of a third

party mortgagor)

V.

Enforcement

(1)

(2)

(3)

(4)

specification

(1)

(2)

(3)

(4)

bank/

bank/

owner

legislator

bank/

bank/

owner

legislator

enforce-

usability

enforce-

usability

ment

ment

V.1

How is an executory title for

5

2

3

5

(7) enforcement without title if

10

6

1

6

enforcement of the mortgage

agreed

obtained?

(6) there is always an executory

10

6

3

7

title because security rights are

always created by a notarial act

and notarial acts are always

enforceable

(5) banks are authorized to grant

9

6

1

4

themselves executory titles;

executory titles can also be

created by a notarial act

(4) there is usually an executory

6

4

3

6

title because security rights are

usually created in a notarial act

and equipped with an executory

title

(3) executory titles can be

5

3

5

5

created by notarial act

(2) execution is granted in

4

2

6

6

special quick court procedure

(1) executory title must be

0

1

9

0

obtained in a full court

procedure

V.2

Is a statement that the copy of

4

0

2

3

(4) statement of enforceability

8

2

6

the executory title can be used

not necessary

for enforcement necessary (ex-

(3) the notary or the court will

6

4

5

ecutory clause), and if so, how

attach the statement of

can it be obtained?

enforceability

(2) notarial titles do not need an

8

2

6

executory clause

(1) the executory title must be

1

8

3

granted by court in a special

procedure

V.3

How can the owner assert

3

0

5

5

(4) only in a separately initiated

9

0

6

his rights against enforcement

proceeding

(e.g. that the debt does not

(3) in a separate proceeding

4

6

7

exist or has been repaid)?

or in the ongoing proceeding

(substantive or procedural

(2) only in the ongoing

6

4

6

objections)

proceeding

(1) the court will always exam-

0

10

2

ine on its own initiative whether

the conditions for enforcement

are fulfilled

V.4

When disputed, who has to

3

2

5

5

(4) always the owner

10

10

0

4

prove that the secured debt

(3) only for the originally

5

6

7

5

has come into existence

secured claim the owner

and/or is due? (no change of

(but different with a security

mortgagee)

agreement covering unspecified

future claims)

(2) the owner – with confirmation

8

4

2

6

of disbursement in a set form or

before a notary

(1) always the mortgagee

0

0

10

7

V.5

When the burden of proof is

3

0

4

3

(3) no

10

0

3

with the owner, must the

(2) yes

0

10

7

mortgagee cooperate by

(1) the owner has never the

0

10

7

submitting documents?

burden of proof

V.6

Can subordinate mortgagees

2

2

1

2

(2) yes

3

7

7

7

separately initiate enforcement

(1) only if agreed with the

7

3

3

3

of the mortgage?

first-ranking mortgagee

V.7

During enforcement proceed-

0

1

0

3

(2) yes

6

6

ings, can subordinate mortga-

(1) no

4

4

gees obtain the position of

the first-ranking mortgagee

without his consent or the

consent of the owner by

paying him out?

V.8

Which other options for

4

0

2

2

(3) by private sale, also in public

6

4

6

enforcement are provided

auction

by law?

(2) by public auction through a

4

6

4

publicly commissioned authority

(1) both options

7

4

7

V.9

During enforcement, can the

4

2

2

3

(3) yes, through a particular form

8

8

4

8

yields of the property be

of enforcement or if the claim

seized before the sale of the

for yields had been assigned or

property?

pledged

(2) yes, through a particular form

6

6

6

6

of enforcement, if it had been

expressly agreed

(1) only, if the claim for yields

2

2

4

2

had been assigned or pledged

V.10

Can the owner be entirely

2

0

2

2

(2) yes, by a particular form of

8

2

7

deprived of control of the

enforcement (e.g. forced

property before a forced sale?

administration)

(1) no, only particular measures

2

8

3

for particular breaches

V.11

What are the effects of the

1

0

0

2

(4)

all security rights on the

7

7

decision to transfer the real

property are extinguished com-

property in forced sale

pletely; some other limited rights

proceedings on the rights

only partly affected

over the property?

(3)

all security rights on the

6

6

property are extinguished, but

not servitudes of other properties

(appurtenant easements)

(2)

security rights are extinguished,

7

7

if they are in the same ranking

as the security right for which an

enforcement was initiated or in a

posterior ranking

(1)

different effects depending on

2

2

the way of proceedings chosen

V.12

Can subordinate mortgagees

4

2

0

3

(2) no

10

10

10

initiate enforcement and

(1)

yes

0

0

0

cause the extinction of better

ranking (senior) rights even

if the bid is not sufficient to

cover the better ranking rights?

V.13

How does the decision to

3

0

3

3

(2) they persist and can be en-

10

0

8

transfer the real property in a

forced as unsecured claims

forced sale affect those claims

(1)

they are extinguished

0

10

2

not covered by the proceeds of

the forced sale?

V.14

Is it possible to use the security

2

1

0

1

(2)

yes

8

8

8

right over real property of a

(1)

no

2

2

2

mortgagee initiating enforcement

to finance the acquisition of

the property in forced sale

proceedings by the new

owner?

V.15

Under what circumstances is

4

0

4

3

(3) only with the consent of the

10

2

7

it possible for the owner to

mortgagee

have enforcement proceedings

(2) only in exceptional cases

8

6

6

that are substantively and

(extreme personal affection)

procedurally lawful temporarily

(1)

generally for reasons of

0

8

3

or permanently suspended?

social protection

V.16

If the enforcement proceedings

4

0

4

3

(4) always with a time limit

10

2

7

are suspended at the request of

(3)

with or without a time limit;

5

5

5

the owner, without the consent

if unlimited the resumption of

of the mortgagee, is the

the proceeding is possible after

suspension permanent or

a certain time

temporary?

(2)

without a time limit,

2

7

3

but resumption is possible

(1) suspension of enforcement

10

2

7

only with the consent of the

mortgagee

V.17

Does a valuation of the

3

0

3

3

(5) no, value is irrelevant

8

0

3

property take place within the

(4)

only in special cases

4

3

6

enforcement proceedings?

(e.g. with a private sale)

(3)

mandatory before the forced sale

1

8

6

(2)

only retrospectively if the

3

7

4

owner or the debtor demands it

(1)

usually not, as the value has

7

3

3

been set by the parties when

establishing the security right

V.18

Is the forced sale concluded

3

0

3

3

(4)

yes, value is irrelevant

8

2

4

even if the price achieved for

(3)

yes, but only if the property

6

5

6

the property is below a certain

is taken over and the claim is

threshold value?

extinguished

(2)

if a certain part of the

6

5

6

property value is not reached the

proceeding is prolonged but not

suspended

(1) no

2

8

4

V.19

Can a mortgage be enforced

4

0

2

4

(5) this is customary

10

2

3

by the mortgagee using a right

(4) possible in principle but

8

3

4

to take over the property?

rarely practiced

(lex commissoria)

(3) only after unsuccessful

6

5

7

attempts for forced sale

(2) possible if agreed in advance

7

4

4

(1) no

0

8

3

V.20

When the mortgagee takes over

1

0

5

4

(3) no right for takeover

0

10

10

the property, must compensa-

(2) yes

0

10

10

tion be paid if the value of the

(1) no

10

0

0

property exceeds the debt?

V.21

Can the mortgagee himself

5

0

4

4

(3) yes, but a possible remainder

7

10

10

take part in a forced sale

of the debt ceases to exist

auction and acquire the

(constructive settlement)

property?

(2) yes, the secured claim is

10

7

7

compensated only up to the

amount of the auction price

(1) no

0

0

0

V.22

Which unregistered claims

10

5

0

10

(5) only costs of the proceedings

10

10

10