Posts Tagged rights in rem in immovable property
The lady is not for turning. CJEU in Komu v Komu sticks to classic application of exclusive jurisdictional rule for rights in rem in immovable property.
Update 17 December 2016 application of Komu v Komu was made in  EWCA Civ 1292 Magiera v Magiera.
In Case C-605/14, Komu v Komu, the CJEU stuck to its classic applicatio n of the rule of Article 22(1) Brussels I (now Article 24(1) Brussels Recast). This Article prescribes exclusive jurisdiction for (among others) proceedings which have as their object rights in rem in immovable property. Article 25 (now 27) adds that where a court of a Member State is seised of a claim which is principally concerned with a matter over which the courts of another Member State have exclusive jurisdiction by virtue of Article 22, it shall declare of its own motion that it has no jurisdiction. (emphasis added).
Mr Pekka Komu, Ms Jelena Komu, Ms Ritva Komu, Ms Virpi Komu and Ms Hanna Ruotsalainen are domiciled in Finland and are co-owners of a house situated in Torrevieja (Spain), the first three each with a 25% share and the other two each with a 12.5% share. In addition, Ms Ritva Komu has a right of use, registered in the Spanish Land Register, over the shares held by Ms Virpi Komu and Ms Hanna Ruotsalainen.Wishing to realise the interests that they hold in both properties, and in the absence of agreement on the termination of the relationship of co-ownership, Ms Ritva Komu, Ms Virpi Komu and Ms Ruotsalainen brought an action before the District Court, South Savo, Finland for an order appointing a lawyer to sell the properties and fixing a minimum price for each of the properties. The courts obliged in first instance and queried the extent of Article 22’s rule in appeal.
Co-ownership and rights of use, one assumes, result from an inheritance.
The CJEU calls upon classic case-law, including most recently Weber. At 30 ff it recalls the ‘considerations of sound administration of justice which underlie the first paragraph of Article 22(1) …’ and ‘also support such exclusive jurisdiction in the case of an action intended to terminate the co-ownership of immovable property, as that in the main proceedings.’:
The transfer of the right of ownership in the properties at issue in the main proceedings will entail the taking into account of situations of fact and law relating to the linking factor as laid down in the first paragraph of Article 22(1) of Regulation No 44/2001, namely the place where those properties are situated. The same applies, in particular, to the fact that the rights of ownership in the properties and the rights of use encumbering those rights are the subject of entries in the Spanish Land Register in accordance with Spanish law, the fact that rules governing the sale, by auction where appropriate, of those properties are those of the Member State in which they are situated, and the fact that, in the case of disagreement, the obtaining of evidence will be facilitated by proximity to the locus rei sitae. The Court has already held that disputes concerning rights in rem in immovable property, in particular, must generally be decided by applying the rules of the State in which the property is situated, and the disputes which frequently arise require checks, inquiries and expert assessments which have to be carried out there.
A sound finding given precedent. However I continue to think it questionable whether these reasons, solid as they may have been in 1968, make much sense in current society. It may be more comfortable to have the case heard in Spain for the reasons set out by the Court. But essential? Humankind can perform transcontinental robot-assisted remote telesurgery. But it cannot, it seems, consult the Spanish land registry from a court in Finland. I would suggest it is time to adapt Article 24 in a future amendment of the Regulation.