Экзамен зачет учебный год 2023 / General Report

Eurohypothec: a common mortgage for Europe”79, which has been working on an updated version of the prior paper for a model European instrument.

In April 2005, this group, together with the members of the Subgroup Collateral of the Fo- rum-Group on Mortgage Credit, of EULIS (European Land Information Service) and of the European University Institute (EUI), Florence, have presented a new paper containing “Basic Guidelines for a Eurohypothec”80.

e) EU Commission: Forum Group on Mortgage Credit and Green Book

As has been mentioned already, the Forum Group on Mortgage Credit established by the EU Commission, DG Internal Market, has also treated, among other, the question of a euromortgage.

In the second half of 2005, a Green Book on Mortgage Credit is to be expected which certainly will also address the question of a European mortgage.

7.9.3. Main content of the proposals a) Non-accessory mortgage

So far, a variety of concepts has been linked with the term “Eurohypothec”. Not surprisingly, one of the main points has always been the question of accessoriness:

–Generally, the proposals put forward a non-accessory concept of mortgage, based in particular on the existing models in Germany and Switzerland. This approach is clearly favoured also by the scientific co-ordinators of this study (both of whom admittedly are German lawyers and therefore used to the concept of non-accessoriness).

–So far, only Wachter81 proposed an accessory mortgage, because he assumed that this would be easier to achieve since it was closer to the existing types of mortgage in most European states.

–Recently particularly Stöcker82 has proposed some form of compromise by introducing a non-accessory, but causal type of mortgage. This idea has been adopted by the Basic Guidelines drafted by the Eurohypothec Group and other groups in co-operation.

b) Easy transferability of the mortgage

While the specific features of each of the proposals vary, all also emphasise the easy transferability of the future Eurohypothec.

–Transferability is another major argument for a non-accessory mortgage. Refinancing (cross boarder or within the country) is much easier in a non-accessory system, if the loan and therefore also the loan management stays with the original bank and only the mortgage goes up the chain of refinancing banks.

–In particular, also the idea of a certificated mortgage (letter right) has been spelled out in most proposals for a Eurohypothec.

79www.eurohypothec.com

80Internet: http://www.fukrehip.pl/fukrehip_en/Default.aspx?tabid=134 (Mortgage Credit Foundation, Poland) or http://www.hypverband.de/hypverband/html/smartcms/index.cfm?fuseaction=showPage&pageid=187 (VDH, Verband Deutscher Hypothekenbanken, Germany).

81Wachter, Die Eurohypothek – Grenzüberschreitende Kreditsicherung an Grundstücken im Europäischen Binnenmarkt, WM 1999, 49.

82Soergel/Stöcker, EU Enlargement in Eastern Europe and Dogmatic Property Law Questions – Causality, Accessoriness and Security Purpose, Notarius International 2002, 236, 241; also the “Basic Guidelines for a Eurohypothec” 2005.

c) European mortgage or European standards for national mortgages

In recent years, the focus of the discussion has shifted from a uniform instrument to adjusting existing (national) mortgage law:

–The first proposals (report Segré, CAUE) proposed a uniform European instrument which would be added to the existing national mortgages.

–The Wolfsteiner/Stöcker draft was a single model, but which was proposed to be adopted not by a uniform European act, but by national legislation (in the Central and East European reform states).

–The Forum group (recommendation 19) and the “Basic Guidelines for a Eurohypothec” (the most recent paper developed jointly by the Eurohypothec Group together with members of other research groups) focus strongly on the basis of lex rei sitae, recommending adjustments only where deemed necessary while the other questions open to national law.

Thus, the Basic Guidelines consider both options, either reforming existing national law or adding a new 26th regime for the Eurohypothec. The first option would be rather European mortgage standards than a European mortgage.

It is very important to keep in mind, that the economic value of any mortgage (be it a mortgage under national law or a future Eurohypothec) depends largely on the legal environment (i.e. the land registration system, unregistered overriding interests, the enforcement law etc.). This has been emphasised both by the Forum Group and in the recent “Basic Guidelines”.

8. Literature

In this general report, as far as we rely on information given in the various national reports, we have not quoted the source. However, we did quote our source in a footnote, if we introduce any information not yet contained in the respective national report.

In the various states, there is plenty of legal literature on the respective national land law. There are also of couple of monographic studies comparing specific aspects of land law in two or several European states. However, at least to our knowledge, there are just a few works on comparative law concerning real estate (land law) in Europe (though, admittedly, we might have missed out same works in foreign languages):

–von Bar (ed.), Sachenrecht in Europa, 2000/2001 (in German language), contains national reports on 16 European countries, covering movable property as well as immovable property. Relevant statutes are translated in German.

–Frank/Wachter, Handbuch Immobilienrecht in Europa - Zivilund steuerrechtliche Aspekte des Erwerbs, der Veräußerung und der Vererbung von Immobilien, 2004 (in German language). The work is a very valuable practitioner's handbook on conveyancing and other issues of land law in 24 European countries (including Turkey), designed for the German notary or other lawyers, counselling clients owning real in other European states.

–Hurndall, Property in Europe – Law and Practice, 1998 (English language).

–Schönhofer/Böhner, Hausund Grundbesitz im Ausland, 3 volumes, looseleaf (in German language), last update in 2000, will not be updated any longer. The work has been designed for the German practitioner counselling clients owning real estate in other countries. The work contains national reports on conveyancing and land law in 17 European states as well in several countries overseas.

–Even a lawyers' formbook as Weise (edit), Beck'sches Formularbuch Immobilienrecht, (C.H. Beck) 2001 (in German language), contains forms for a land sale and for a mortgage in 7 European countries.