Following the sale of a building in the future state of completion, the notary filed a request for the registration of the seller’s lien. Faced with the rejection of the request by the Strasbourg land register judge, the notary lodged an immediate appeal against the judge’s order. To support his rejection, the land register judge relied on the failure to comply with the two-month period required by article 2379, paragraph 1is, of the Civil Code for the registration of privileges from the deed of sale.
The Colmar Court of Appeal confirms the decision of the land register judge. It considers that the period provided for by article 2379, paragraph 1is, of the Civil Code is applicable in the present case. Consequently, the failure by the notary to comply with this period has the consequence of transforming the security into a legal hypothec, which will only rank with regard to third parties on the date of registration (Civil Code, art. 2386 ). On the contrary, the notary maintained that this rule was not applicable by relying on the provisions of Alsace-Moselle.
The dispute thus focused on the application of the law in space. Should the law resulting from the civil code be applied, or should it be local law? Indeed, the law of 1is June 1924, which brings into force French civil legislation in the departments of Bas-Rhin, Haut-Rhin and Moselle, contains within it a chapter relating to rights to buildings and to the land register. Concerning “the organization, constitution, transmission and extinction of real property rights and other rights and acts subject to publication”, French law applies “subject to the provisions of this chapter” (art. 36-1 ). However, article 45 provides that “the date and rank of the registration are determined by the mention of the filing of …
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