Comparative Analysis – Case 8

Summary

GENERAL INTRODUCTORY REMARKS ON CASE 8

Case 8 addresses the position of a buyer whose contract of sale does not lead to the registration of a transfer of landownership, but who uses the land for a long period of time after the sale, vis-à-vis third parties acting in good faith. Implicitly, the case raises three important questions. Does Svetlana acquire the land through the contract of sale, which complies with all formalities, without registration of the transfer? If so, can she rely upon the acquisition as against Sean, a third party acting in good faith? If the acquisition is not valid or does not have third-party effect, has Svetlana acquired the land with third-party effect through her long-term use of the land?

COMPARATIVE REMARKS

In the jurisdictions under examination, there are three different answers to the issue of whether Svetlana’s interest prevails.

(1) NO ACQUISITION WITH THIRD-PARTY EFFECT BY SVETLANA

In the first group of jurisdictions, Svetlana will not be able to rely upon the transfer to her or her long-term use. Thus, Sean will become owner and his interest will prevail. This group consists of Alberta, Catalonia, Germany, Poland, Russia, Scotland, Slovakia, Spain, and Sweden. Judging from recent case law, Norway may also belong to this group. This group can be divided into two subgroups. In Alberta, England and Wales, Germany, Russia, Scotland, and Slovakia, registration of the transfer is constitutive so that Svetlana has not acquired ownership through a transfer. Subsequently, there is generally no mechanism whereby Svetlana could invoke her long-term use to acquire the land. Poland does permit an acquisition through long-term use by Svetlana, but Sean’s interest prevails due to a lack of registration.

In the second sub-group, consisting of Catalonia, Spain, and Sweden, Svetlana did acquire ownership through the contract of sale. Norway may also belong to this sub-group. The registration of the transfer is merely declaratory. However, Catalonia, Spain, and Sweden provide for no third-party effect of the acquisition in insolvency proceedings in relation to purchasers in good faith. As Svetlana cannot subsequently rely upon her long-term use, Sean has become the owner.