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

4.2.Form and Content

Any acquisition of a Eurohypothec as security, by a person other than the owner of the charged property, requires a security agreement.

Form

The security agreement must take the form required by national law. Oral agreements are invalid.

The owner is entitled to obtain a written copy of the security agreement. However, it does not have to be entered in the land register.

Minimum Provisions

A Security Agreement must contain the following minimum provisions:

•the names of the parties and the date of agreement,

•the Eurohypothec; it is possible to use one security agreement for several created Eurohypothecs or for multi-parcel Eurohypothecs,

•the claims to be secured,

•the conditions for redemption of the Eurohypothec by the security provider,

•the conditions of the enforcement procedure of the Eurohypothec, within the limits of the laws of the jurisdictions concerned.

Forbidden Clauses

The security agreement may not stipulate the following:

•restrictions on the sale of the property as a whole,

•a clause of voie parée.156

Without the consent of the holder of the Eurohypothec in the form foreseen by the national law, the owner of the charged property may not create any charges on the property which could affect the Eurohypothec. This does not apply to charges inferior in rank.

4.3.Redemption and Owner’s Rights

If there is no valid security agreement or if all secured claims have been repaid, the security provider has the right to demand redemption of the Eurohypothec or parts of it. He has the right to decide the means of redemption, whether it be extinguishment, transfer of the Eurohypothec to the security provider, or at his discretion to a third party. The holder of the Eurohypothec must contribute therefore, if necessary, at his own expense.

The security provider is allowed to assign the right to redemption to a third party.

In the case of a certificated Eurohypothec, the right to redemption includes the right to receive the certificate.

In the case of over-collateralisation, the security provider may, at his own expense, ask for partial adaptation of the collateral by reducing the amount of the Eurohypothec or via partial redemption.

In the event of enforcement, the holder of the different Eurohypothecs may be entitled under the security agreement to choose over which properties he wishes to carry out enforcement. As regards individual properties, the enforcement proceedings may be carried out separately or jointly.157

156Forfeiture clause.

157Some members propose that a joint procedure should follow the same rules in all Member States.

6.EXTINGUISHMENT

6.1.Cancellation in the Register

The Eurohypothec is extinguished when it is deleted from the national competent register with the consent of the holder of the Eurohypothec and the owner. The Eurohypothec is not extinguished by the payment of the secured claims.

6.2.Passage of Time

The capital of the Eurohypothec is not subject to any time limit or prescription.158

6.3.Owner’s Rights under the Security Agreement

If the secured claims have been paid in full, the owner can demand cancellation of the Eurohypothec or its assignment to himself or to some other person of his choice.

The security agreement may state other cases in which the owner can demand cancellation or assignment of the Eurohypothec.

6.4.Exclusion of Unknown Holder

In the case where the holder of a Eurohypothec is permanently unknown or unattainable, or where the Eurohypothec certificate has been lost, the process foreseen under national law to cancel real charges will be applied.”

c)Structure of a Eurohypothec

In terms of functionality a Eurohypothec should be designed as collateral security and not as an isolated security right over real property. The notion of an isolated security right over real property would encounter very strong resistance, particularly in countries belonging to the Roman legal family. In order to be able to put across the concept of appropriation for a specific purpose via a security agreement more easily, the talk these days in relation to the claim-securing land charge [Sicherungsgrundschuld] and the Eurohypothec is sometimes less of non-accessoriness than of “contractual accessoriness”.159 The structural flexibility of the mortgage is achieved by the statutory accessoriness160 being transformed by means of a legally required security agreement into contractual accessoriness.161

The linking of a security right over real property with an unconditional promise of payment that is separate from the loan claim, which is customary in the Scandinavian countries and Switzerland, would also probably be hard to implement as a statutorily regulated model across Europe, at any rate where the creator of this form of security is a consumer. The issue of whether different regulations could be put in place for commercial property owners should, however, be the subject of closer examination.

158However, if the Eurohypothec yields interest, prescriptions or other time limits may apply to the interest.

159Baur/Stürner, Sachenrecht [Law of Property], 18th ed. 2009, section 64, margin note 85 and section 36 marginal note 77a. The use of the term “contractual accessoriness” for the Eurohypothec was devised in 2005 in a talk given by the German notary Michael Becker (Dresden) and the French notary Maître Jerôme Chevrier in a fringe meeting at a notaries’ conference in Paris on the Eurohypothec. The linguistic change from “non-accessory” to “contractually accessory” has already contributed to a better understanding of the fundamental structure of a Eurohypothec and of the central legal instrument, the security agreement, and has reduced much of the doctrinal opposition, particularly in countries belonging to the Roman legal family.

160In the European discussions the terms “accessoriété légale” and “statutory accessoriness” were used.

161This is described as “accessoriété conventionelle obligatoire” and “compulsory contractual accessoriness”.

Parallel debt structures162 that are used with increasing frequency in international commercial lending practice suggest a structure of this kind.163

The practical use to which a security right over real property can be put depends very much on its structural flexibility. The stronger the structural link between the secured claim and the security right over real property, the less flexible the arrangement of the credit relationship can be. With strictly accessory mortgages, changes relating to the secured claim, or a change of creditor and, as a result, transferability are heavily restricted and are only possible with a high expenditure of time and effort and the possible loss of ranking, or may even not be possible at all.164 The proposals of authors who suggest an accessory Eurohypothec should therefore not be followed;165 Kiesgen,166 Kircher167 and Stürner168 have all come out very strongly against such proposals. Mortgages in Europe do exhibit very differing degrees of accessoriness and are accordingly not uniformly flexible for use in securing loans. Despite this diversity it can, however, be said that ultimately all mortgages are more or less accessory as regards enforcement.

In discussions about the Eurohypothec, accessoriness of scope and of competence are sometimes demanded in order to prevent double payment under the secured claim and under the security right over real property. This is, however, to confuse issues regarding the accessoriness of a mortgage with the issue of the good faith acquisition of a security right over real property without a secured claim, which can be permitted by statute in the case of both accessory and non-accessory mortgages and is structurally possible. The protective effect that is sought for the debtor and owner is sufficiently addressed if the accessoriness of enforcement can also be asserted in relation to public reliance on the land register. This has recently become the case in Germany in the case of the Grundschuld, but not, however, in the case of the accessory mortgage (Hypothek).169 If a Eurohypothec were to be structured with full accessoriness of scope and of competence, many advantages of the flexibility that a Eurohypothec should display would again be lost.

It therefore remains to be said that in relation both to a Eurohypothec and also to national security rights over real property, accessoriness of scope and of extinguishment should be dispensed with, and likewise also accessoriness of competence. Any deficiencies in the protection of the debtor/owner can be compensated by strict accessoriness of enforcement. The creditor side should be permitted to receive no more in the enforcement process than corresponds to the outstanding claim, but this should be the subject matter of the accessoriness of enforcement and not of the accessoriness of scope.

162On parallel debt cf. above under C.III.1.c).

163But in this case too it must be borne in mind that the structuring of a Eurohypothec based on real rights makes no distinction on the basis of whether the owner of the encumbered property is a company or a consumer.

164See Baur/Stürner, Sachenrecht [Law of Property], section 36 marginal note 79a; Kircher, p. 389; Stöcker, Die Eurohypothek [The Eurohypothec], Berlin 1992, p. 191 et seq.

165These include, in particular, Wachter, Die Eurohypothek – Grenzüberschreitende Kreditsicherung an Grundstücken im Europäischen Binnenmarkt [The Eurohypothec – cross-border loan security over real property in the European single market], WM 1999, p. 49 et seq., and Habersack, Die Akzessorietät – Strukturprinzip der europäischen Zivilrechte und eines künftigen europäischen Grundpfandrechts [Accessorinessstructural principle of European civil law and of a future European mortgage], JZ 1997, p. 857 et seq.; see further recently Sparkes, European Land Law, Oxford 2007, p. 398 et seq., 401.

166p. 55 et seq.

167p. 556 et seq.

168Baur/Stürner, Sachenrecht [Law of Property], section 64 marginal note 85.

169Cf. section 6 RisikobegrenzungsG [Law on risk limitation] of 12.8.2008, Federal Law Gazette I 2008, 1666 et seq., inserted into the BGB by section 1192 subsection 1a.

E. Attachments

1.Spread sheet: Weighting Ratios

Weighting of questions and answers according to the questionnaire of the Round Table “Flexibility, security and efficiency of security rights over real property in Europe” (as of February 16, 2010)

Objective and focus:

Objective of the analysis is the calculation of a country ranking of legal structures with regard to security rights over real property. Commercial as well as residential properties are considered.

(1) Perspective of a bank regarding enforcement

The focus here is, whether national law influences successful exploitation of property positively or negatively in default of a debtor. Relevant issues are for example aspects of time, costs or legal uncertainty based on competing other claims. If questionable the perspective of a bank, having a first ranking security right, is considered.

(2) Perspective of a bank regarding usability/flexibility

When securing complex and innovative credit structures by security rights over real property it is important that this security right can be used in a flexible way. The focus is on considerations how legal structures of security rights over real property influence product strategies, acquisition processing etc.

(3) Perspective of the owner

For the owner it is most important that he can defend himself against unjustified attempts of enforcement. This issue therefore is a question of consumer protection, too.

(4) Perspective of a legislator

For legislators it is important to bring all involved interests into a fair and transparent equity.