Case report
Review: Arkadiusz Wudarski (Ed.), Das Grundbuch im Europa des 21. Jahrhunderts, Duncker & Humblot, Berlin, 2016
Hano Ernst
; Faculty of Law, University of Zagreb, Zagreb, Croatia
Abstract
Comparative research in land law is rare; comparative research in land registration even more so. Mostly due to land law having remained very much locked within the borders of national legal systems, comparative research in this field is often viewed as a purely academic exercise, often poised to conclude that the stark differences between legal systems, attributed to historical accident, do not leave much room for contemplating either commonalties or opposing policies. This large edited volume contemplates both of these issues. Arkadiusz Wudarski, a law professor at the Europa-Universität Viadrina in Frankfurt-Oder, brought together researchers from across Europe to reflect on the state of land registration in the region. The jurisdictions covered include Austria, Belgium, Bosnia and Hercegovina, Croatia, Cyprus, Czechia, England, France, Germany, Greece, Ireland, Italy, Poland, Romania, Scotland, Spain, and Switzerland—a truly remarkable set of jurisdictions.
The book contains twenty-seven academic pieces organized into five parts that thematically explore comparative land registration law. Part I deals with the role of land registries in a legal system, and contains contributions by Peter Makowski, Stefan Hügel, Simon A. A. Cooper, Peter Bydlinski, and Wudarski himself. Wudarski opens with a comparative review of land registration in Germany and Poland, discussing the basics of land registration, including the public character of land registers, and their functions. Particularly interesting are papers by Hügel and Cooper. Hügel discusses the German system, with particular reference to its peculiar Abstraktionsprinzip, a doctrine that divorces the conveyance via land registration from contract, thus making land registration a legally isolated—hence more expedient—process. He also goes on to discuss the importance of notaries who represent a crucial cog in the machinery of German land transactions. Simon Cooper discusses the peculiarity of the English registration system in terms of the initial sifting process and the doctrine of rectification as gaining a function of removing blemishes in title. He acknowledges the importance of this intervention in English law, but approaches it critically, stressing the dangers that are necessarily built into a system which endorses both blemishes and their removal through registration. While both Cooper and Hügel endorse registries as safeguarding mechanisms, their approach is notably different, as are the policies they favor. Hügel sees the land register as a relatively simple post-contractual (and even more importantly, post-notarial) barrier to unwinding land transactions; Cooper sees it as a tool in its own right, participating in shaping property rights. While this is certainly a consequence of divergences in institutional design, it should not be dismissed on a European (or a national) reform level, because it demonstrates the very essence of different approaches to what a land register is expected to be.
Keywords
land registration law; real property law; civil law; Arkadiusz Wudarski
Hrčak ID:
181644
URI
Publication date:
4.5.2017.
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