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

V.25

How long do enforcement

5

0

3

5

(4) less than 6 months

10

10

10

proceedings last in practice

(3) less than a year

7

7

7

from initiation until distribution

(2) one to two years

3

3

3

of the proceeds in non-complex

(1) more than two years

0

0

0

cases where the owner does

not object?

V.26

How long do enforcement

5

0

3

5

(4) less than 6 months

10

8

10

proceedings last in practice

(3) less than a year

7

3

7

from initiation until distribution

(2) one to two years

3

1

3

of the proceeds in non-complex

(1) more than two years

0

0

0

cases if the owner uses judicial

remedies?

VI.

Insolvency

(1)

(2)

(3)

(4)

specification

(1)

(2)

(3)

(4)

bank/

bank/

owner

legislator

bank/

bank/

owner

legislator

enforce-

usability

enforce-

usability

ment

ment

VI.1

Who may initiate realisation of

3

0

0

3

(3) only the mortgagee

8

6

the property after the opening

(2) the mortgagee or the

5

5

of insolvency proceedings

insolvency office holder

over the owner’s estate?

(1) only the insolvency office

2

4

holder

VI.2

To what extent can the

3

0

0

3

(3) separate enforcement

10

8

mortgagee influence the

procedure for the security right

realisation of the encumbered

or remedies of influence on the

property when the owner

selection of the insolvency office

is subject to insolvency

holder and on his measures

liquidation proceedings?

(2) for the mortgaged properties

5

5

there is a separate class of distri-

bution where the consent of the

mortgagees is needed

(1) influence only by means of

0

2

the general supervision of the

insolvency courts; the adminis-

trator of the bankruptcy estate

acts to a large extent independently

VI.3

To what extent can the

4

0

0

3

(2) shortening of payments to

10

10

mortgagee influence the

the mortgagees only with their

realisation of the encumbered

consent

property when the owner

(1) shortening of payments to

0

0

is under reorganisation or

the mortgagees without their

composition proceedings?

consent is possible

VI.4

Can the forced sale of the

5

0

1

4

(4) such interests are not

10

4

7

mortgage property be affected in

considered

the interest of the insolvency

(3) delay for a limited period

6

5

6

estate or of other creditors?

of time

(2) possible due to commercial

2

6

5

or social interests in general

(1) unlimited delay of

0

7

4

enforcement possible

VI.5

If the enforcement procedure

3

0

0

2

(3) delay not possible

10

7

is delayed in the interest of

(2) yes

10

7

the insolvency estate, must the

(1) no

0

3

insolvency estate compensate

the mortgagee’s loss?

VI.6

When does the insolvency

2

2

0

2

(3) not until the opening of

8

8

8

take effect? (disregarding

insolvency proceedings

possible rescissions)

(2) the opening of insolvency

4

4

4

proceedings; there are, however,

preliminary constraints or

retroactive time periods

(1) retroactive or partly

2

2

2

retroactive

VI.7

What legal status must a

10

5

0

10

(4) the establishment of the secu-

10

10

5

mortgage have achieved in

rity right must have been agreed

order to be effective in

inter partes

insolvency proceedings?

(3) the request for registration or

8

8

10

request for a priority notice must

have been filed

(2) the request for registration

7

7

8

must have been filed

(1) registration must have been

0

0

2

completed

VI.8

How is the revenue from the

3

0

0

3

(3) the mortgagee receives

10

8

forced sale distributed?

payment directly from the

enforcement proceedings

(2) the received payment is

7

6

forwarded to the mortgagee

separately

(1) the outcome is transferred to

0

2

the insolvency estate, where the

mortgagee has a privileged

position

VI.9

Which unregistered claims

10

5

0

10

(5) only the cost of the

10

10

10

have priority over mortgages?

insolvency procedure and

irrefutable administration costs

(4) + property-related taxes, pub-

8

8

8

lic burdens and maintenance

costs

(3) + salary claims of employees

5

5

5

within limits and/or alimonies

(2) + all salary claims against

2

2

2

the owner

(1) + all tax claims

0

0

0

VI.10

Are parts of the proceeds from

5

0

0

5

(4) in principle not

10

6

the forced sale of the property

(3) up to 5%

4

7

used to cover ordinary insol-

(2) up to 10%

2

5

vency claims?

(1) more than 10%

0

3

VI.11

Does the mortgagee receive

5

1

0

4

(2) yes, in principle fully

7

7

7

payment for interest and costs

covered

from the proceeds of the

(1) costs and interests within

3

3

3

forced sale of the property?

certain limits

VI.12

Until which point in time must

3

0

0

3

(4) until the distribution of the

10

10

interest covered under the

proceeds

mortgage be due in order to

(3) until the forced sale of the

8

8

be paid from the proceeds of

encumbered property

the forced sale?

(2) until the opening of

3

3

insolvency procedures

(1) until an act of insolvency

0

0

applies (petition of insolvency

is possible)

VI.13

What is the effect of insolvency

1

0

5

5

(3) the consumer is released from

3

10

7

proceedings against consumers

all debts after a certain period of

(private individuals)?

time (and after all encumbrances

have been realised)

(2) the debt remains even after

7

0

3

the completion of insolvency

proceedings

(1) insolvency proceedings

7

0

3

against consumers are not

possible

VI.14

Do consumers in insolvency

3

0

5

4

(4) no

10

2

8

proceedings enjoy stronger

(3) yes, through deferment

4

6

4

protection in relation to

(2) yes, through remission

0

8

3

mortgages compared to

(including deferment)

debtors/owners in insolvency

(1) there are no insolvency

10

2

3

proceedings generally?

proceedings against consumers

VII.

Utilisation in practice

(1)

(2)

(3)

(4)

specification

(1)

(2)

(3)

(4)

bank/

bank/

owner

legislator

bank/

bank/

owner

legislator

enforce-

usability

enforce-

usability

ment

ment

VII.1

Is it possible to structure a

0

5

5

5

(2) yes

8

10

8

security right over real property

(1) no

2

0

2

in such a way that the amount

of an existing secured claim

can be increased without

changing the security right

over real property itself?

VII.2

Is it possible to replace the

0

5

5

5

(3) yes

10

10

10

existing secured claim with

(2) yes, when the legal

5

5

5

another claim against the

relationship between the

current debtor – without

parties still exists

affecting or changing the

(1) no

0

0

0

security right over real

property? (the new claim

immediately replacing the old

one – novation, subrogation)

VII.3

Is it possible to secure new

2

3

4

3

(3) yes

10

10

10

10

claims under the security right

(2) yes, when the legal

5

5

5

5

over real property once the

relationship between the

original claims have been

parties still exists

extinguished completely?

(1) no

0

0

0

0

VII.4

Is it possible to secure a

0

3

3

3

(2) yes

10

10

10

revolving credit line without

(1) no

0

0

0

further action and without

necessitating alterations to

the security right over real

property itself?

VII.5

Is it possible (without alterations

1

5

5

5

(2) yes

10

10

10

10

to the security right over real

(1) no

0

0

0

0

property) to secure a long-term

loan where the interest rate is

only set for a part of the term

and must subsequently be agreed

again for shorter or longer

periods? (sectioned loans)

VII.6

Can the security right over

0

4

5

5

(4) yes

10

10

10

real property be transferred

(3) yes, when also the existing

6

6

6

from Bank A to Bank B and

secured claim is transferred form

then secure new claims?

bank A to bank B (novation/

(change of secured claim and

subrogation)

creditor through transfer of

(2) yes, if all secured claims and

2

2

2

the security right over real

the relationship to the customer

property)

are transferred

(1) no

0

0

0

VII.7

Can the security right over real

0

5

4

5

(2) yes

10

10

10

property and secured claim be

(1) no

0

0

0

held by different persons?

VII.8

Is it possible for a Bank B as

0

3

5

4

(2) yes

8

8

8

security for its outstanding

2

2

2

loans to take over a security

right over real property from

Bank A, without causing the

extinguishment of Bank A’s

secured claim or the secured

claim having to be transferred

to Bank B?

VII.9

Is it possible to use a security

0

3

5

4

(2) yes

8

8

8

right over real property

(1) no

2

2

2

established for Bank A to

(additionally) secure Bank

B’s claims (without having

to transfer the security right

over real property or the

claims) (bridging finance)?

VII.10

Can the claims of several

0

5

3

3

(2) yes

10

10

10

creditors against the same

(1) no

0

0

0

debtor be secured by registering

a security right over real

property for a fiduciary who

himself does not have a claim

against the debtor? (fiduciary

security right over real property –

disregarding whether the

fiduciary relationship would

be protected in insolvency)

VII.11

If the security right over real

0

5

2

3

(2) yes

10

8

10

property has been registered

(1) no

0

2

0

for one creditor, is it possible

in an efficient way to do a

later syndication of the loan

with all creditors/syndication

partners secured on the

security right over real

property directly?

VII.12

Is a conversion of the loan

2

2

3

2

(2) yes

10

10

10

10

where a new debtor takes over

(1) no

0

0

0

0

the loan (with consent of the

creditor/mortgagee and the

mortgagor) possible without

consequences for the existence

of the security right over real

property?

VII.13

Is it possible to use an

0

2

3

2

(2) yes

10

10

10

existing security right over

(1) no

0

0

0

real property as security for

a new loan given to the

purchaser when a property is

transferred to a new owner?

VII.14

How can an acquirer of a

0

4

2

4

(3) examination of the register is

9

9

9

security right over real

sufficient

property make sure that it

(2) he should examine the

3

3

3

would be effective if the

documents kept by the register

owner provides him with a

(1) he should examine various

0

0

0

security right over real

agreements and documents

property or the mortgagee

transfers the security right

over real property to him?

Security Rights over Real Property"

of enforcement

Efficiency of

- perspective

"Flexibility, Security and

Complete findings

Round Table

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