Izvorni znanstveni članak
Claim for Removal from the Register as a Necessary Supplement to the Land Registry System of Legal Protection
Walter H. Rechberger
Sažetak
The principle of confidentiality protects those who take legal action with confidence in authenticity and completeness of the content of land registers. This principle, however, does not hold unconditionally: in regard to land registry entries which have indeed been made on the basis of scrupulous procedure but which are based on deficient substantive law acts. Due to such an entry the injured has, under certain conditions, the possibility of taking legal action by the claim for removal of the invalid entry.
Nowadays the land registry systems of Croatia and Austria are characterized again by the same close connection as before the introduction of the socialist system. It can be expected that some of the problems connected with the claim for removal from the register which exist in Austrian law will occur, by permanent application of new property and land registry regulations and primarily by the full establishment of the land registry protection of confidentiality, in Croatia as well.
In this respect, besides passive legitimacy and terms as indisputable conditions for the claim, the author primarily analyses the following specific issues which have proved to be disputable, both in administering justice and in legal science, during more than a hundred years of the application of the claim for removal from the register: evaluation of active legitimacy, i.e. the question who may, as “the injured in his land registry right”, raise the claim for removal from the register and the question what kind of entries may cause such injury; further, it is analysed whether the plaintiff in the case of the claim for removal from the registry has to prove his substantive law right and what objections may the defendant make against the claim. The focus is on the question of the defect of the title, i.e. whether the claim for removal from the register is justifiable only in the case of initial invalidity of the title or whether subsequent invalidity is also admissible, that is, whether the claim for removal from the registry is only justifiable in the case of ex tunc termination or whether the ex nunc effect is sufficient as well. The analysis concludes with the examination of problems which occur at formulating the claim.
Ključne riječi
land registry system; claim for removal from the register; principle of confidentiality
Hrčak ID:
5114
URI
Datum izdavanja:
20.4.2006.
Posjeta: 5.406 *