Issues with entries in the land register

Antonia Peeva
Antonia Peeva

An interpretative decision of the SCC stops controversial practice under the Regulations for entering

The controversial practice issues are related to the Regulations for entering and the competence of the judges for entering in connection with the introduced institute in 2004 “Refusal of a judge for entering” led to the need the General Assembly of the Civil and Trade Division of the Supreme Court of Cassation to pronounce with an interpretative decision on the controversial court practice.

Interpretative decision 7 of the SCC examines the issue of the inspection’s scope, which a judge for entries should perform. According to the Regulations for entering, in case the entered in the Entry Register act does not meet the requirements of the law or is not subject to registration, the judge for entering issues a ruling for refusal. On this issue, some courts accept that the judge for entering can check the void of the act with a view of the documented in it content and refuse its entry if the transaction, objectified in it, cannot be done, is concluded in contradiction with the substantive law or when there are other grounds for void. Other courts are of the opinion that in the proceedings it is inadmissible to check the substantive conditions of the act, whose entering is requested.

What provides the decision

According to the decision of the SCC in view of the security character of the proceedings, as the entry itself is an act of unquestionable administration, within which it is not permissible to resolve legal disputes, and considering its main purpose – publicity and unenforceability it cannot be assigned to a judge for entering to check the substantive conditions of the entered act. If this act suffers from some defects, its disclosure would help the protection against them, because it enables the persons concerned to familiarize themselves with its contents and to attack it in court. Namely, in the context of the contested court proceedings, the rights of all affected persons from the entered act can be fully provided and the dispute can be solved by res judicata. Such a dispute before the judge for entering cannot be claimed, nor did he have the right to refuse entry under pretext that the existence of such a dispute is known or possible. The General Assembly of the Civil and Commercial Division (GACCD) of the SCC believes that it is unacceptable a judge for entering to refuse entering of a real estate transaction on the grounds that it circumvents or breaks the law, for example for reasons of an unfulfillment of a provided in the contract suspense condition.

Furthermore, under the existing contradictory court practice on this issue whether the entry of a copy of a testament with subject real estate or property rights over a real estate the rights of the transferor should be checked, the SCC states the view that the refusal of a judge for entering to enter a handwritten testament in the cases when no evidences for the rights of the testamented estate’s owner has been provided, is unlawful and that in the cases when the judge is not specifically charged by the law with performance of material functions, the judge has no right to examine the material prerequisites.

Is it required the act to be entered

The check, which the judge for entering has to do, is limited to that whether the act is subject to entry. It is although necessary to take into account the fact that the acts, subject to entry, are listed non-exhaustively in the Regulations for entering. Such acts have been also listed in a number of other laws such as SDA, CA, Law for the Registered Pledges. Furthermore, the examination is limited to that, if the act has been composed in compliance with the requirements for form and if it contains the proposed by the Regulations for entering content. The refusal can be justified of considerations of local incompetence of the judge for entering, the existence of which is monitored automatically or if the fee due is not paid. In examining the form, the judge for entering shall ensure compliance with the rule that the acts, which have to be entered, are these, which are performed by notary or with a notarized signature, but taking into account the fact that a special law may regulate the entry of a act in writing for example under the CA an in-kind contribution with subject property rights to real estate for entering a notarized statement of the company contract is provided. In order to check the content of the act subject to entry, a refusal should be held if there is no identification of the parties or identification of the real estate. An exception to this is when the law allows the entering of acts, which do not relate to individually defined properties, then the individualization of the real estate is not examined in the act and the entering cannot be refused due to lack of one.

It is important to be mentioned that it is not possible to refuse entering of court acts for reasons they do not meet the requirements of form or content. The judge for entering has no jurisdiction to examine the court acts, because the court has control functions to it, and not vice versa. When a court decision is submitted for entering which an enactment provides to be entered, the judge for entering shall enter it regardless of its content.

Who can appeal refusals for entering

There are controversial issues related to the locus standi of the individuals, entitled to appeal a refusal of a judge for entering. Some panels of judges the bailiffs and the notaries are not eligible to appeal the stated refusals, since they are not parties to the protective proceedings for entering of the act, while other courts have found that the submitted by these persons actions are admissible and subject to substantive examination. With its decision as of 25.04.2013, the SCC gives its binding interpretation on these issues, considering that both categories of individuals are procedural legitimate and can appeal the stated refusals of the judges for entering. According to it, they are interested parties within the meaning of the Code of Civil Procedure, as they are the individuals, who are interested to refer to leading the proceedings for entering the act authority, namely the judge for entering and to request the due assistance for implementation of the entry. An argument in support of this position is also the provision of art.32a, para.4 of the Regulations for entering, under which the particular bailiff/notary should be served the ruling for the stated refusal. Therefore, it cannot be accepted that these individuals are not entitled to appeal the refusal, which they have been served.

The article has been published in Bulgarian, in Capital Daily.