Real estate registers in Germany and Russia: Public credibility of data vs. bona fide acquisition of property

Abstract

The article analyzes dogma, scientific concepts and judicial practice on the acquisition of immovable property in case of its unauthorized alienation in Germany and Russia. The author proposes to improve the Russian model of real estate ownership protection, which is based on German legal constructions. Reasonable the acquirer should check the powers of the counterparty (the title) and doubt them, for example, when the price of the contract is non-market. However, such logic is nonsense in the sphere of civil turnover of real estate, because the legislator establishes the presumption of registered rights and guarantees the credibility of the registry data. Registrars carry out a legal expertise of title documents, therefore, purchasers should not take the risk if the records in the registry are erroneous. There is no need to investigate the gross negligence of the purchasers, and this changes the approach to understanding their bona fide. The essence of public credibility of the real estate register should be reflected in Articles 8.1, 223, 302 of the Civil Code of the Russian Federation: the acquirer does not become the owner if he knows about the uncertainty of the register, or there are marks about an objection or a court dispute regarding the registered right of the alienator. Such public credibility is not conditioned by the will of the previous owner or the payments of the acquirer. The rules of unjustified enrichment (Chapter 60 instead of prescription possession under Article 234, paragraph 4 of Article 302 of the Civil Code of the Russian Federation) can be applied to balance interests, if the victim has economic losses, and the acquirer has not incurred costs. A transaction between a trusting acquirer and an unauthorized alienator means that there is no personal and economic identity between them (family ties, relations of a corporation with its sole participant, transformation of joint ownership into shared ownership between the same persons, etc.). Despite the absence in Russia of a mandatory notarial form of alienation of real estate and an abstract real contract, the legislator can transform the negative system of registration of rights and establish a fiction (the acquisition on the basis of public credibility of register, i.e. a partially positive or fiduciary registration system).