JT Law Sydney offices (in 2010)
According to the Greek Civil Code, the real property burden of a Greek mortgage may be imposed on another’s real property, for the purpose of securing the satisfaction of a creditor’s claim by way of acquiring priority over the property. Greek Mortgages are the most common burden encountered on real estate properties . Greek Mortgages are accessory rights and may also be constituted for the purpose of securing future or conditional claims. In order to impose a Greek mortgage on someone’s property, the beneficiary of the mortgage must obtain a title that grants the mortgage right (such as pertinent laws, Court orders and private will) and register it in the relevant Greek mortgage books. The right of registration of a Greek mortgage shall be granted by the debtor or by a third party, acting in favor of the debtor. The person granting the Greek mortgage must be the owner of the property. A Greek mortgage is a non-divisible right, and extends to the entire property, as well as to the components and accessories thereof. A Greek mortgage shall be extinguished by the satisfaction of the claim (in any manner), as well as: a) by the total destruction of the mortgaged property, or b) by the creditor’s waiver of his rights, or c) by the foreclosure on the mortgaged property and the payment of the foreclosure proceeds, and d) by the expiration of the time period for which the mortgage was granted.
A prenotice of a mortgage is recorded in the same manner as a Greek mortgage, but with the reference of being a "prenotice". By virtue of the Article 1277 of the Greek Civil Code "a prenotice confers solely a right of preference for the imposition of a mortgage. Upon the claim being granted by a final judgment, the prenotice shall be converted into a mortgage that shall be deemed recorded as of the date of the prenotice." The conversion of a prenotice into a Greek mortgage cannot be prevented by a transfer of the property’s ownership to a third party. In the event that prior to the conversion of a prenotice to a Greek mortgage, a foreclosure on the property has taken place, the claim in favor of which the prenotice was entered is listed randomly and the property is acquired by the buyer free of any burdens. A prenotice can be extinguished on the same grounds as a Greek mortgage as well as a) by a revocation of the decision that had ordered the prenotice, or b) automatically, if the prenotice has not been converted into a mortgage within ninety days as of the date of the final judgment that granted the claim (secured by the prenotice).
Another category of real property rights are the real property easements. A real property right may be acquired on a property for the benefit of the current owner of a third property, securing a benefit to the latter (real property easement). By virtue of a real property easement, the owner of the servient tenement shall bear the burden either of accepting some use of his property by the owner of the dominant tenement, or abstaining from certain acts which he would have been entitled to base on his right of ownership. Examples of real property easements are the right of way, the right of supply or drainage or drilling of water or of watering cattle belonging to the dominant tenement, the right of cutting of wood etc. Real property easements are constituted by means of a contract or by continuous possession. The provisions governing continuous possession of real property and the conveyance of property by agreement, apply also in regards to the real property easements.
There are also lawsuits against the ownership of a property that can be a burden of the property as in the Greek law, and more specifically Article 1094 of the Greek Civil Code in which the owner of a property shall have the right to demand from the possessor or the holder the acknowledgement of his right of ownership and the return of the property. Moreover, the owner shall have the right to demand from the offender the cessation of such interference with his ownership and its non recurrence in the future, when the ownership interference involves removal or retention of the property by virtue of Article 1108 of the Greek Civil Code. In addition, according to the aforementioned article, the owner may also be entitled to a claim for compensation in accordance with the provisions governing unlawful acts. The right flowing from the preceding article shall not be granted, if the offender’s actions were lawful or based on a right granted to him.
Also as a burden on property in Greece, a foreclosure may occur due to economic circumstances, i.e. debit, bankruptcy. Foreclosure is identified into two phases: temporary foreclosure and permanent foreclosure. According to Article 715 of the Greek Civil Code, it is forbidden to dispose or relinquish property rights in any way under temporary foreclosure status. In addition, Article 722 states that when the decision relating to the foreclosure becomes permanent the property then will be offered for public sale. Therefore, it is important when searching at the Land Registry to correctly identify the foreclosure status in the relevant archives.
In Greece all in rem rights must be registered with the Land Registry, given that Article 1198 of the Greek Civil Code provides that lack of registration results in the non-transfer of ownership or in the non-creation or non-abolition of a right in rem on real property. In view of the above, registration with the Land Registry is a prerequisite for the conclusion of a real estate transaction.
There are currently two systems of publicity of the in rem rights on real property: (a) the system of Transcriptions and Mortgages Books and (b) the recently introduced system of the National Cadastral (Laws 2308/1995 and 2664/1998, as in force).
The system of Transcriptions and Mortgages Books is based on the keeping of a file of personal "shares", namely indexes of persons who have entered into real estate agreements, whereas under the National Cadastral every property has its own registration and the relevant legal status research is conducted per property. Therefore, the National Cadastral issues a separate Index Number for each property, instead of each owner. It should further be mentioned that in the Cadastral system a mapping-cadastral survey of the real properties is established and the boundaries of the properties are clearly defined.