The cross border electronic conveyancing project : is this system feasible for Malta?

Abstract

The two Cross Border e-Conveyancing (CROBECO) projects, namely CROBECO 1 and CROBECO 2, provide for an alternative process for cross border electronic purchase of immovable property, within the EU, where registration of foreign deeds is permissible. Generally, prospective buyers hesitate when faced with the idea of buying immovable property in European countries other that in which he resides. This is so due to insecurities regarding aspects such as foreign legislation unknown to the purchaser and the language gap. Hence, the projects’ objective is that of aiding the continual growth of European real estate market by way of supporting the purchase, by foreign buyers, of a (second) home elsewhere in the EU. While prospective buyers fear the pitfall of unknown limitations and restrictions, CROBECO aims to avoid those pitfalls, while simultaneously offering advantages for both buyers and sellers. The CROBECO process is based on a contract of sale executed by a notary in the foreign buyer’s home country. Through a new online resource called NETPRO, developed in pursuit of such projects, a foreign notary has access to resources which can answer any legal questions they may have. Furthermore, the deed is drafted in both the buyer’s native language and the official language of the country in which the plot of land is located, allowing both the buyer and seller to ensure the protection of their interests. Eventually the said deed will be registered in the Land Registry of latter country. Moreover, in such said process, the individual rights and obligations of both buyer and seller are governed by the laws of the country of the foreign buyer. Additionally, the courts in the home country of the foreign buyer have jurisdiction to hear a case regarding individual rights and obligations and compensation of damages. This choice of the applicable law and choice of forum is possible pursuant to Regulations Rome I and II, as well as Regulation Brussels 1, respectively. By accepting applicability of the contract law and forum of a foreign country the seller makes his property more interesting for prospective foreign buyers. Ever since it establishment five countries have participated in the CROBECO project, namely the Netherlands, England, Wales, Portugal and Spain. However, the CROBECO projects are also suitable for cross-border contracts in other EU Member States, and thus could readily be adopted by other EU countries. Thus, this poses the question as to whether this system would be appropriate and beneficial to adopt in Malta. The aim of this professional report would be to answer precisely this question. Section 1 delves into an analysis of the Cross Border E-Conveyancing Projects, specifically examining aspects such as the CROBECO process itself, the NETPRO system, the respect CROBECO affords for existing legislation, techniques and responsibilities as well as, the roles and necessary skills required of the land registries. Section 2 of this projects delves into the practical implications of the CROBECO project through an assessment of the advantages attributes of this project. Lastly, Section 3 investigates whether the Maltese law as it stands today in connection with the basic requirements for participation in the CROBECO project. This in turn allow the author to draw conclusion whether Maltese law as it stands today allow for partial or full participation in the CROBECO project, making participation feasible in Malta, or whether participation would require Malta to go against the aim of the CROBECO project for existing techniques, legislation and responsibilities, making participation no entirely feasible. In conclusion an assessment is also made as to whether the CROBECO project itself is sufficient to achieve its aims.