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Adapting rights in rem

Innehåll inlagt av
European Judicial Network
Det europeiska rättsliga nätverket (på privaträttens område)

1 Which are the rights in rem that could arise from a succession under the law of this Member State?

According to section 5 of the Law of Property Act, rights in rem include ownership (right of ownership) and restricted rights in rem – easement, real encumbrance, right of superficies, right of pre-emption and right of security. The law may provide for other rights in rem.

The registration of a right in rem does not limit any other right.

2 Are these rights in rem recorded in a register of rights in immovable or movable property and, if so, is such recording compulsory? In which register(s) are they recorded and what are the registration requirements and procedure?

Immovable properties and related rights are entered in the Land Register. In the event that the Land Register has become incorrect due to the transfer of a right in rem outside the Land Register, the land registry department will correct the entry on the basis of the registration application submitted by the new owner of the right in rem. A document certifying the transfer of the right in rem (certificate of succession) must be appended to the registration application (Land Register Act, section 651 (1)). In order to establish whether the bequeather was the sole owner of the right in rem or whether the right in rem is a joint property, a certificate of ownership must in some cases be appended to the registration application in addition to the certificate of succession. A registration application must be notarised or digitally signed (section 34 (21) of the Land Register Act).

The land registry department may require the owner of a right in rem or the executor of a will to submit a registration application and the documents necessary for the correction and making of an entry in the Land Register under the threat of a fine (section 651 (5) of the Land Register Act).

Some rights in rem related to movable property are also registered in other registers. For example, shares are registered in the Commercial Register, securities are registered in the Estonian Central Register of Securities and vehicles are registered in the Traffic Register. As a rule, an heir is required to present to the relevant register the necessary information and documents concerning the inheritance of an asset or right. However, in the case of inheritance of shares or membership in a building association, a notary public is required, after the notarisation of the certificate of succession, to send a notice of the inheritance of the shares or membership to the Commercial Register or to the Non-profit Associations and Foundations Register respectively.

3 Which effects are linked to the registration of the rights in rem?

All rights in rem are transferred to heirs by law and are independent of the registration of these rights. As a rule, registry entries become invalid when a succession is opened and the heir is generally required to have the entries altered.

The effects of registration of rights in rem are different. For example, the entry of a right in rem in the Land Register is a constitutive act and the accuracy of the data entered in the Land Register is presumed (section 56 (1) and section 641 of the Law of Property Act). Entries made in the Commercial Register can be both constitutive and declarative and an entry is considered as correct with regard to a third person, unless the third person knew or should have known that the entry was not correct (section 34 (2) of the Commercial Code).

4 Are there specific rules and procedures in place for the adaptation of a right in rem to which a person is entitled under the law applicable to the successions in case the law of the Member State in which the right is invoked does not know such right in rem?

According to section 6291 of the Code of Civil Procedure, a court may initiate a proceeding for adaptation of a right in rem of a foreign country based on the petition of the person who is entitled thereto. If necessary, the court hears the petitioner. The court sets out in the ruling on adaptation of a right in rem whether Estonian laws prescribe a right in rem which is equivalent to the right in rem of the foreign country that is to be adapted. If an equivalent right in rem exists, the court indicates it in the ruling. If, for the purpose of enforcement of a ruling on adaptation of a right in rem, the petitioner must contact a non-judicial registrar or another person or institution, this fact must be set out in the ruling. The petitioner may file an appeal against the ruling.

According to section 475 (1) 101) of the Code of Civil Procedure, adaptation of rights in rem in accordance with Article 31 of Regulation (EU) No 650/2012 of the European Parliament and of the Council is dealt with in proceedings on petition.

Last update: 04/12/2018

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