The nature of privileges and hypothecs in the context of their registration

Abstract

The principal objective of this thesis is the comprehensive exposition of the law of privileges and hypothecs with special analysis on the procedure required for their registration in the Public and Land registry. It revolves around the premise that the effectiveness of privileges and hypothecs lies in their registration. Absence of registration places the hypothec or privilege in a mere superfluous existence. The First Chapter accentuates the juridical nature of the hypothec in the light of its characteristics. The chapter captures the inception of the hypothec through its four different sources-legal, judicial, conventional and testamentary. The chapter also illustrates the two categories of hypothecs that envelope its sources, that is, the general hypothec and the judicial hypothec. Next, the Second Chapter puts the nature of Privileges into deep scrutiny, surveying only those privileges emanating from the most important law which is the Civil Code. The ranking of both general and special privileges is also analyzed. In Chapter three, the essential feature of the publicity of privileges and hypothecs is discussed. Through registration in the Public Registry, notice thereof is brought to third parties and thus their interests are safeguarded. Extensive case-law is used to analyze deeply the notion of registration and the form of the note of hypothec and privilege in context with notes of reference for an accurate picture of the debit or credit. The time within which privileges and hypothecs are registered is also explained. Chapter four highlights the meaning of a charge and the way it is registered in the Land Registry. It also examines two particular rights granted by the Land Registry Act intended to protect interested parties, noticeably overriding interests and cautions. The last chapter also compares and contrasts the ranking of hypothecs and privileges in the Public Registry to the registration of charges in the Land Registry with special reference to the particular difference in the way special hypothecs rank in each of the two registries.