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805 results in Property Law

Page 25 of 41

  • Comparing Legal Certainty in France and England

  • from Introduction
  • Edited by Bertrand du Marais, David Marrani
  • Book:
    Legal Certainty in Real Estate Transactions
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    16 August 2016, pp 3-8

  • Summary

    How to Assess the Legal Framework Used to Secure Real Estate Transactions in France and England?

    This research has been launched in reaction to the assessment of property registration law published in the World Bank Doing Business reports (DB). The research team was chaired by Bertrand du Marais, Marie-France Nicolas and David Marrani. The aim of the research was to identify the methodology of a rigorous and comparative assessment of the legal certainty produced by French and English law, pertaining to real estate properties with professional use. Like the DB reports, this work is one of the rare legal impact assessments dealing with real estate property focused on real estate properties with professional use.

    This comparative research was carried out simultaneously in France and England by a multidisciplinary academic team, with the assistance of practitioners, composed on the one hand, of lawyers, and on the other hand, of economists and management specialists. The “GIP Mission de recherche “Droit et Justice””, in the framework of the Economic Attractiveness of Law Program sponsored this research.

    The team work is described in this introduction along with the major findings of the research in a policy oriented way for the use of policy makers (especially the ministry of Justice) and of the relevant professions (especially the notariat).

    The main operational lessons from the research are threefold:

  • – From a methodological point of view, in order to measure the economic impact of law;

  • – From a scientific point of view, about the role of notaires when dealing with real estate transactions on real estate properties with professional use of significant value;

  • – From a strategic point of view, about the future of the current organization of the French notaires.

    • The irrelevance of the Doing Business methodology

    The comparative description of the legal framework used in the two legal systems, as well as the practices in real business life, demonstrates that it is impossible to sequence such a transaction in order to assess the efficiency of law.

    However, and for each country under review, the Doing Business reports are based on the synthetic quantitative index of “the ease of doing business”.

  • Property Transactions in English Law: General Principles

  • from Part II - Legal Certainty In Property Transaction: A Comparative Approach
  • Edited by Bertrand du Marais, David Marrani
  • Book:
    Legal Certainty in Real Estate Transactions
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    16 August 2016, pp 83-94

  • Summary

    Ownership of land: historical introduction

    The terminology of English land law, and some of the concepts found in this area of law, are notoriously complicated. Much of this complexity can only be explained by reference to history. A detailed examination of the history of English land law is outside the scope of this project, but a few brief remarks may be appropriate.

    The first point to note is that in English law it is technically incorrect to refer to any individual other than the King or Queen as the “owner” of land. As a direct consequence of the universal introduction (in 1066, following the Norman Conquest) of the so-called “feudal system” of land-holding, the King or Queen is, in theory, owner of all land; everyone else is merely a “tenant” in the feudal sense – one who holds land of the Crown in return for services (note that this use of the word “tenant” is distinct from its modern meaning – see section 2 below). Historically, there were a great many different types of feudal tenure, conventionally classified according to the type of service the tenant might be required to perform. The practical aspects of feudal tenure (including the tenant's obligation to provide services) had mostly disappeared by the 19th century, and the last trace of the distinction between the different types of tenure was abolished in 1922 (Law of Property Act 1922, s.128, Sch.12, para.1), but it remains true, as a matter of legal theory, that the most that a subject can own is an “estate” in land – an interest that is less extensive than the absolute ownership of the Crown. The only circumstances in which this has any practical consequences in the modern law are when an individual dies leaving no heirs who can inherit the land and having not made a will, and when an individual or company has become insolvent and the trustee in bankruptcy or company liquidator disclaims the estate: in such cases the land will “escheat” (i.e. revert back) to the Crown.

    The second historical point relates to the terminology used to describe estates and other interests in land.

Legal Certainty in Real Estate Transactions
  • A Comparison of England and France
  • Volume 147
  • Edited by Bertrand du Marais, David Marrani
  • Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    16 August 2016
  • This comparative research was triggered by the assessment of property registration law published in the World Bank Doing Business reports (DB). The international and interdisciplinary team aimed to assess how legal certainty was imagined and put in practice in French and English law, using commercial real estate as a case study. Not only this study identifies the economic impact of the law in both jurisdictions, it also looked at the practitioners' functions in the dealing with commercial real estate transactions. In other words, it analyses the topical position of practitioners such as the French notaires and the role of solicitors in England. Nowadays, the profession of notaires is confronted to numerous challenges. For instance, nationality requirement for its access, has been ruled by the ECJ as contrary to the freedom of establishment and art. 49 TFEU and not justified by the exercise of public authority". In this study, the authors argue that the actual nature and the quality of the work done by the practitioners should be considered as well as financial cost and delays. They also argue that a liberalisation of professions such as civil law notaires would have very little impact on the cost associated with doing business. As a matter of fact both the English and the French mechanisms are very similar in their objectives and outcome even though they handle the same transaction differently, because of the culturally different relevant angles.

  • How to and Why Measure the Efficiency of Real Estate Transactions in France?

  • from Part II - Legal Certainty In Property Transaction: A Comparative Approach
  • Edited by Bertrand du Marais, David Marrani
  • Book:
    Legal Certainty in Real Estate Transactions
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    16 August 2016, pp 69-76

  • Summary

    Headnote

    The World Bank's successive reports on the efficiency of national law have caused much ink to flow. Despite the fact that their shortcomings have been repeatedly emphasized, the international organisation continues with its annual surveys, having only amended its method marginally. And yet, the most vigorous objections call into question its approach. Indeed, certain presuppositions in relation to the economic analysis of the law are applied with the utmost naivety, and even with a certain bias. The results are biased by a lack of knowledge and a failure to understand the legal systems that are the very focus of the study. A change of approach was thus required. At attempt has been made to understand how the rules of law are integrated in the economic transaction via interviews with professionals specialised in real estate transactions conducted by French and overseas purchasers. The result is unexpected; the rules are greatly denounced. They hide the conflicts associated with the allocation of competences among the different actors involved in the transaction.

  • In the World Bank's Doing Business 2014 report, France ranks 149th (out of 189) in terms of the transfer of property. This poor position is the result of the criteria chosen for the evaluation: delays and costs (evaluated here) inherent in the procedure of transfer of real estate property.

  • The method adopted by the World Bank has been widely criticized since the launch of this classification in 2004. The relevance of the indicators is subject to caution, while shortcomings concerning the questionnaires and insufficient data are legion. In terms of the transfer of property, for example, it can be noted that the duration of the procedure is calculated starting from the beginning of discussions in France, but only starting from the actual sale in the United Kingdom.

  • The very purpose of this annual report has been the subject of debate, since it consists of encouraging poorly ranked countries to proceed with the necessary legal reforms to stimulate their economic activity. However, as has been pointed out, the fact that countries with a Common Law tradition are positioned at the top of the ranking is one way of encouraging others to follow their example. While this method is brutal, doubt has been permanently cast on national practices, among which figures the transfer of property in France.

  • Comparing Company Law

  • from B - Practical Approach
  • Edited by Bertrand du Marais, David Marrani
  • Book:
    Legal Certainty in Real Estate Transactions
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    16 August 2016, pp 45-66

  • Summary

    Introduction

    This chapter will focus on legal certainty and company law. It will attempt to shed light on aspects of English company law which are marked with such a degree of lack of clarity that issues related to their interpretation are raised. The English legal system is one of the most prominent legal systems at international level. It has been shaped through many centuries and thrived on the basis of very distinctive principles such as the pivotal role played by the judiciary and the relatively limited in relation to continental European jurisdictions employment of legal codes and statutory instruments. The ability of the judicial authorities to shape rules and provide their own interpretation of the existing statutory texts has led to a system which is marked by an impressive level of flexibility with a judiciary that in practise complements the existing legislative framework with its rulings to a degree that cannot be detected in civil law jurisdictions.

    Company law could evidently not constitute an exception to this rule. When one refers to company law one refers to a body of jurisprudence and statutes which have evolved continuously over centuries. English company law follows the general trend and has established itself as point of reference for international lawyers; it is a jurisdiction whose regulatory and in many ways cultural influence has crossed the national borders to transcend the laws of divergent nations across the globe as a testament to the country's impressive legal heritage. The UK has therefore emerged as one of the most attractive destinations for investment as it provided potential investors with the dual benefits of a solid company law which granted to them an attractive degree of flexibility; English company law is centred around two basic principles that stand at the heart of every investor: the sanctity of the right to property and the almost religious adherence to contractual obligations. Both principles have rendered the country a safe haven for international investment and a destination attractive enough to convince companies from around the world to establish themselves in Britain.

    English company law, however, remains distinctive in the fact that the very principles on which it is based – the sanctity of property and contracts – present certain particularities within its context.

  • An Assessment of Theoretical Proposals to Deal with Heterogeneous Small Samples

  • from Part III - Measuring Legal Certainty
  • Edited by Bertrand du Marais, David Marrani
  • Book:
    Legal Certainty in Real Estate Transactions
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    16 August 2016, pp 109-120

  • Summary

    The studies we conducted rapidly faced a big issue. Was it possible to make reliable quantified comparisons of differences in performance between notaries and non notaries legal systems using heterogeneous small samples? The underlying issues at stake concern different levels.

    The first one is related with the cost of data collection. Indeed, to be relevant the traditional quantitative methods would work on panel data but require collecting detailed data for at least thirty individuals per country. This means having sufficiently standardized the methodology, but the previous chapters of this book show that this approach may be too simplistic and that it requires a very important preliminary work to comprehensively understand the legal systems. It is time and money consuming. In addition, standardizing data collection is not an easy task. Hence, it is necessary to achieve a trade-off between two conflicting objectives: defining sufficiently harmonised data to enable comparisons to be meaningful – comparability criterion – and defining data that are sufficiently representative of local conditions – representativeness criterion –. Then comes the actual step of collecting a sample whose size is sufficient enough.

    The second issue is a practical one and relates to the statistical treatment of data. Indeed, working on small samples implies that the statistical properties necessary for using the usual estimators that are based on the central limit theorem are not satisfied. Traditional inferences used to assess the magnitude of the observed effects cannot be performed rigorously. We must therefore implement alternative methodologies.

    We were not the only researchers facing these challenges. They oft en arise in public policy analysis when defining targeted measures is required. Fine tuning supposes to dispose of disaggregated information at an appropriate level. The institution which has developed the most such approach is the World Bank, particularly in the context of programs destined to diminish poverty. Notably, the Millennium Declaration adopted by the member countries of the United Nations in 2000 that called for the reduction of poverty by half in a worldwide scale by the year 2015.

    The methodology developed by researchers at the World Bank belongs to the so-called small area estimations methodologies. It consists in fitting statistical models in order to be able to conduct statistical analysis for areas where the sample size of the survey data is not sufficient for generating accurate estimates.

  • Introductory Remarks on Legal Security: the Approach of French and European Law

  • from Part III - Measuring Legal Certainty
  • Edited by Bertrand du Marais, David Marrani
  • Book:
    Legal Certainty in Real Estate Transactions
    Published by:
    Intersentia
    Published online:
    21 September 2018
    Print publication:
    16 August 2016, pp 105-108

  • Summary

    In everyday language, “legal security” refers to the supposed stability and predictability of legal solutions. Law is there to steer or, more modestly, to accompany the action of institutions and individuals functioning or living in society. Among its objectives is the definition of a general framework that is strong enough to allow actors to know in advance what they are allowed or not allowed to do.

    In law, and in particular in French law, which is strongly influenced by European integration (COE – UE), legal security can have two major benefits:

  • – It can have the value of a “legal principle”, in which case we talk of the “principle of legal security”; here, legal security plays an extremely prominent prescriptive role: as we shall see, it serves to maintain existing legal systems and encourages the development of new ones;

  • – It is also a description tool (naturally, one that is not without a prescriptive dimension even if, in this case, its role is less prominent), in the sense that it sets out to examine the content of the rule of law with regard to the security that it is likely, or unlikely, to offer to those to whom it applies.

    • These two meanings of legal security, which are mutually complementary, deserve closer attention if they are likely to apply to the working hypothesis chosen by this research programme: real estate transactions.

    Legal security: a prescription tool

    Prescribing to establish the basis for the development of new legal systems: the European example

    Here, the example of the European Union can be taken, showing how the “framework principle” of legal security – which covers a very large number of sub-principles (acquired rights, predictability of solutions, non-retroactivity, public nature of acts, legitimate confidence, etc.) – has been used from a very early stage by the Court of Justice (ECJ, April 6, 1962, Bosch, no. 13/61) to oversee the EU's standard-setting activity.

    In a comparable manner, see also the jurisprudence of the ECHR (ECHR, June 13, 1979, Marckx v. Belgium).

    Here, legal security plays a cardinal role. It supports the emergence of a European legal model (EU or COE) which, very early on, sought to establish itself based on a principle of legality or “community of law”.

  • Chapter 7 - Co-ownership: The interplay of common law, equity and the Torrens system

  • Hossein Esmaeili, Flinders University of South Australia, Brendan Grigg, Flinders University of South Australia
  • Book:
    The Boundaries of Australian Property Law
    Published online:
    21 June 2018
    Print publication:
    05 July 2016, pp 140-159

  • Summary

    Introduction

    Central to property law (especially land law) in all jurisdictions derived from the common law is the concept of fragmentation or division of proprietary interests between different people. Elsewhere in this book we encounter fragmentation in terms of time (life estates and remainders), the nature or type of the interest (freehold and leasehold) and the source of the interest (legal and equitable). Co-ownership is another instance of fragmentation but this time it is about the rights of people to own and use the same interest in property at the same time – ‘the sharing of a single proprietary right’. This concurrent and simultaneous enjoyment of the same present interest extends to both real and personal property. In Australia today, large tracts of land, especially residential ones, are co-owned rather than solely owned. This makes co-ownership an important facet of real property law. The Torrens system in all jurisdictions recognises the notion of co-ownership and the application of principles derived from common law and from equity to co-ownership of Torrens title land. But, as the authors of Sackville and Neave observe, its importance should not be overstated. Co-ownership is relatively unsophisticated, under-developed and unable to deal with the myriad rights and duties required by people in the 21st century who favour communal living and the use of shared facilities in property. More elaborate legislative schemes have been introduced to meet this demand. A full appreciation of and the ability to understand such legislative schemes depend on a sound grasp of the general law principles of co-ownership and it is to this that we now turn.

    The essence of co-ownership is unity of possession. This means that where A, B and C co-own a 30 acre block of land each is simultaneously entitled to possess and enjoy the entire property without any restriction. The consequence of this is that, absent voluntary agreement with the other co-owners, none is entitled to claim exclusive possession of any particular acreage or part of the land. In other words, it is fundamental to the co-ownership concept that the interest of each co-owner is diffused throughout the entire property. There can be no physical division of the property into separate shares for each co-owner. If there is physical division, then there is separate ownership, not co-ownership.

    Co-ownership is recognised both at common law and in equity.

  • Chapter 4 - Torrens title: Registered and unregistered interests

  • Hossein Esmaeili, Flinders University of South Australia, Brendan Grigg, Flinders University of South Australia
  • Book:
    The Boundaries of Australian Property Law
    Published online:
    21 June 2018
    Print publication:
    05 July 2016, pp 63-94

  • Summary

    Indefeasibility of title is the most fundamental feature of the land registration system in Australia. Under it, the State guarantees the title of those with a registered interest in land, to the extent of that interest. The foregoing is trite. But the principle is so important, and adherence to it so essential that registered title is able to be challenged, under the legislative provisions in each of the States, only in the most exceptional circumstances. The Torrens system has enabled conveyance with certainty in Australia and, even though there may be occasions where notions of comparative justice may seem to have been transgressed, it is essential that indefeasibility of title is not undermined.

    Introduction

    Rothman J's statement, above, provides the context for and the focus of this chapter's examination of registered and unregistered interests under the Torrens title system. What is indefeasibility? Why is it essential that indefeasibility of title is not undermined? How do the Torrens title systems that operate in Australia ensure that it is not undermined?

    The answers to these questions require a consideration not only of specific provisions of Australian Torrens title statutes, but also of general principles of land law that were, in large part, responsible for the birth of the Torrens title system. This chapter assesses the extent to which the Torrens title system either replaces, incorporates or has affected and altered the general law in relation to registered interests and unregistered interests in land. Torrens title legislation is unavoidably ‘situated in and deeply affected by’ the general law principles, as illustrated in the body of Torrens title case law. The extensive case law that has developed by the courts reflects the need to deal with what have been termed ‘bijural inaccurac[ies]’ that are inherent in a system of registered title. Bijural ambiguity is, in O'Connor's view, ‘an underlying cause of instability and incoherence in the rules of registered title systems’. An understanding of this instability and incoherence is therefore important in understanding registered and unregistered interests under the Torrens title system in Australia.

    In terms of registered interests, this chapter considers the origins, definitions, scope and boundaries of the key foundational Torrens title principle: indefeasibility of title. It considers its exceptions and focuses, primarily, on the fraud exception and the in personam exception.

  • Chapter 3 - Fundamental concepts for Australian real property law: Tenure, estates, possession and adverse possession

  • Hossein Esmaeili, Flinders University of South Australia, Brendan Grigg, Flinders University of South Australia
  • Book:
    The Boundaries of Australian Property Law
    Published online:
    21 June 2018
    Print publication:
    05 July 2016, pp 41-62

  • Summary

    Introduction

    This chapter explores some of the ‘basic, if largely unnoticed, premises of Anglo-Australian land law’. The focus of the chapter is on the fundamental property law doctrine of tenure, the doctrine of estates and the concept of possession, however, its analysis highlights other significant aspects of law such as the developments in land law that led to the development and recognition of the trust. An understanding of the origins and development of these concepts together with an understanding of their implementation in Australia is crucial, notwithstanding that their origins lie in centuries long-gone and a hemisphere away.

    The chapter begins with an exploration of the origins of the doctrine of tenure and traces its development in England. The historical focus of this aspect of the chapter draws on Peter Butt's detailed historical account of the intricacies of the feudal system. It then considers its arrival and use in Australia and the impact of the High Court's Mabo v Queensland (No 2) decision (‘Mabo’).

    The chapter also examines the relevance and the function, in land law, of the concept of possession and how that concept has influenced the development of the doctrine of estates and its recognition that interests in land can be fragmented by reference to time. Consideration of the important foundational principles associated with the lease is given over to Chapter 9 of this book.

    The chapter concludes with an examination of another aspect of the common law's focus on possession: the law of adverse possession.

    Doctrine of tenure

    The decline of the Roman Empire led Europe into a period of cultural and economic decay. This weakened the concept of government to such an extent that generations, over the course of a number of centuries, lost any expectation of law and order as the ‘subconscious basis of daily life and expectation for the future.’ In these so-called Dark Ages in Europe, the political or financial strength of a neighbour rather than the state or the government provided the shelter, personal safety and protection that was required in the face of physical threats to peace and security. This led to the practice of commendation: people placing themselves under the care and protection of a more powerful neighbour. They thus became the ‘vassal’ of a ‘lord’ and cemented mutual relationships of support and protection.

Page 25 of 41