DOI 10.

1515/eplj-2012-0009

EPLJ 2012; 1(2): 187190

Editorial
Sjef van Erp

The new Succession Regulation:

The lex rei sitae rule in need of a reappraisal?
Sjef van Erp: Editor-in-Chief, Email: s.vanerp@maastrichtuniversity.nl

The leading private international law rule in the area of property law has always
been that the lex rei sitae applies: the law of the place where the property is
located. A close connection exists between this rule and what might be called
classical property law. By classical I mean the law as it was developed
especially in legal literature by the end of the 19th century, building on existing
customary law, Roman law (particularly relevant on the Continent of Europe),
statutes and case law. This was the heyday of the nation-state, colonialism with its
tendency to focus on a nations home law as a supreme legal system and to be
imposed on the colonies, nationalism, civil law codification and common law
stare decisis. Property law was, furthermore, still very much land law, in other
words fixed on rights regarding a physical immovable thing and, in spite of the
French Revolution, in that respect still of a feudal nature. In this intellectual
climate the lex rei sitae rule did what it should do: demarcate where one national
legal system ended its claim to application and another national legal system
began to claim application of its own property law. Thus, legal systems became
watertight compartments and their markets were strictly national.
Europe today shows a very different approach to property law. Market integration is no longer aimed at establishing one market between the mother
country and its colonies, but is aimed at creating a common and internal market
within Europe itself. Furthermore, property law is no longer strictly limited to
rights in rem with regard to physical objects, but is also concerned with areas such
as licenses (e.g. emission rights) and virtual property. The digital revolution (I
need only refer to the Digital Agenda for Europe) is having an enormous impact
on transfer of rights in land, as increasingly land registries are digitalised and econveyancing is gaining terrain.1 What we see is, what in US legal literature is

1 On the Digital Agenda see http://ec.europa.eu/digital-agenda/.

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called, a dephysicalisation (in French legal literature the term used is: dmatralisation) of property. This all must have an impact on the lex rei sitae rule,
given its focus on physical, immovable property.2
That such a development, indeed, is going on, albeit almost in a repressed
way, can be seen when looking at Regulation (EU) No 650/2012 of the European
Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law,
recognition and enforcement of decisions and acceptance and enforcement of
authentic instruments in matters of succession and on the creation of a European
Certificate of Succession. The regulation shall apply from 17 August 2015.3 Upon
first reading recital 18 of the regulation seems to contradict this, as it states: The
requirements for the recording in a register of a right in immovable or movable
property should be excluded from the scope of this Regulation. It should therefore
be the law of the Member State in which the register is kept (for immovable
property, the lex rei sitae) which determines under what legal conditions and how
the recording must be carried out and which authorities, such as land registers4 or
notaries, are in charge of checking that all requirements are met and that the
documentation presented or established is sufficient or contains the necessary
information.
First of all, the recital mixes up the lex registrationis and the lex rei sitae. The
law applicable to the registry does not necessarily have to be the law of the place
of the object. Why could not one European land registry be created to register,
e.g., euro-mortgages, to be established in Vienna? Reference can be made to the
International Registry of Mobile Assets, held in Ireland, and the future International Registry for Railway Rolling Stock, under the Cape Town Convention on
International Interests in Mobile Equipment.5 Secondly, article 1(2)(l) of the Regulation states: 2. The following shall be excluded from the scope of this Regulation () (l) any recording in a register of rights in immovable or movable property,
including the legal requirements for such recording, and the effects of recording
or failing to record such rights in a register. Not a word on lex rei sitae in the
actual text, quite understandable also given that the text addresses rights in
movable property, which may include interests in mobile equipment under the
Capetown Convention, an international treaty joined by the European Union!6

2 Cf. (also for a critical analysis) Turner, Peter G., Degrees of Property (January 1, 2011).
University of Cambridge Faculty of Law Research Paper No. 01/2011. Available at SSRN:
http://ssrn.com/abstract=1735953 or http://dx.doi.org/10.2139/ssrn.1735953.
3 Official Journal L 201/107 of 27.7.2012.
4 Probably land registrars are meant.
5 More information can be found on the website of Unidroit: www.unidroit.org.
6 Cf. http://www.unidroit.org/english/implement/i-2001-convention.pdf.

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The new Succession Regulation

189

Furthermore, the Succession Regulation is based on the primary rule that the
habitual residence of the deceased shall be the applicable law, wherever the
assets are located.7 According to article 23 (2)(e) that law shall govern the transfer
to the heirs and, as the case may be, to the legatees of the assets, rights and
obligations forming part of the estate, including the conditions and effects of the
acceptance or waiver of the succession or of a legacy;. This seems to me clear
enough language.
The exception for immovables with regard to the requirements for entering
the change of ownership in the registry and the legal effects thereof should,
therefore, be seen as exceptions to the general rule and be interpreted strictly. If
under the applicable law ownership passed to the heirs, the requirements of the
lex registrationis have to be fulfilled for entering this into the register, but ownership passed and in my view the lex registrationis only decides what it means if this
is not registered, which can only be its effects vis--vis third parties in good faith.
This seems to contradict recital 19 of the Regulation: The effects of the recording
of a right in a register should also be excluded from the scope of this Regulation.
It should therefore be the law of the Member State in which the register is kept
which determines whether the recording is, for instance, declaratory or constitutive in effect. Thus, where, for example, the acquisition of a right in immovable
property requires a recording in a register under the law of the Member State in
which the register is kept in order to ensure the erga omnes effect of registers or to
protect legal transactions, the moment of such acquisition should be governed by
the law of that Member State. This is, however and first of all, no longer a
reference to the lex rei sitae, but to the lex registrationis. Furthermore, the text
itself of the Regulation does not reflect what the recital states, which raises the
question what has priority: the text or the recital? Recitals are meant to explain
the text, not amend it and the latter, it is submitted, appears to be the case.
Finally, the limited role of the lex rei sitae can be seen when looking at article
31 on adaptation of rights in rem. Given its universal application, the applicable
law may know types of rights in rem which are unknown in other legal systems.
Therefore article 31 states: Where a person invokes a right in rem to which he is
entitled under the law applicable to the succession and the law of the Member
State in which the right is invoked does not know the right in rem in question, that
right shall, if necessary and to the extent possible, be adapted to the closest
equivalent right in rem under the law of that State, taking into account the aims
and the interests pursued by the specific right in rem and the effects attached to
it. It is no longer the lex rei sitae and its numerous clausus that decides as to

7 See articles 4 and 21 Succession Regulation.

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which rights in rem can be recognised, but the applicable law according to the
Regulation. This is yet another reason why article 1(2)(l) regarding the applicable
lex registrationis should be interpreted restrictively and can certainly not just be
equated with the lex rei sitae.

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