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”. 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, 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. In addition, the owner may also be entitled to a claim for
compensation in accordance with the provisions governing unlawful acts. The
right flowing from the above, 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. The former means that
it is forbidden to dispose or relinquish property rights in any way under
temporary foreclosure status. If 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. 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 newer
system of the National Cadastral (Ktimatologio Laws 2308/1995 etc, 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.
January 2020
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