Transfers and transmissions of immovables : their effects inter partes and erga omnes

Abstract

Chapter one will discuss the effects inter partes and erga omnes of the transfer and transmission of immovables as an examination of the nature of the title that gave rise to that transfer. This chapter will discuss the implications brought about by the ownership of immovables and the theory that the consent of the parties transfers ownership. The question why transfers of immovables are registered will be examined and the "parties" and "third parties" in the transfer of immovables will be identified. This chapter comes to a close with an examination of the changes brought about by the Land Registration Act and the developments envisaged with the proposed enactment of the Central Registry Bill. Chapter two will discuss transfers inter vivas which either deviate from the normal course of effects or give rise to very specific issues inter partes and erga omnes. The effects when an interdicted person transfers an immovable and the nullity brought about by the Immovable Property (Acquisition by non-residents) Act will be examined. This chapter also discusses the legal position which ensues when an immovable is sold with a conventional redemption as well as the legal position of the parties and third parties when the actio pauliana is exercised to annul a fraudulent transfer by the debtor. The effects emanating from the sale of an immovable with a promessa de rato and from the sale or donation of a res aliena will also be discussed. The question on how may a prospective buyer who has entered into a promise of sale with a prospective seller prevent the latter from selling the immovable to a third party will be examined. Then, the legal position of the parties and third parties emanating from the transfer of an immovable by the mandatary and that emanating from the sale of an immovable co-owned indivisibly will be discussed. I shall then examine the point in time when a partition of immovable property becomes effective inter partes and erga omnes and the legal position which ensures when an immovable subject to a special privilege or a special hypothec is sold on by the debtor. The novel concept of a warrant of seizure over immovables will also be discussed. The chapter comes to a close with an examination of the position of the third party buyer when the subasta sperimentalis is exercised over an immovable he had acquired through a judicial sale by auction. Chapter three will discuss the causa mortis transfer of immovables. I shall examine the opening of the succession and the acceptance of the inheritance in relation to the moment in time when the ownership of an immovable is transmitted following the death of a person. This chapter also examines the acceptance of a legacy and the transfer of ownership of the immovable in tempore. The question whether a transfer takes place when an immovable is left by the de cuius through a 'legato di cosa altrui' will be answered. The chapter comes to a close with an examination of whether the causa mortis declaration under fiscal legislation gives rise to a subtle mechanism for the registration of all successions.