Next Year, the report on American real estate transaction is slated to be handed in.This is the collaboration with other researchers.
Today, I provide a brief introduction to the contents of the first report.
【Japanese System】
Ⅰ. In Japan, there is no continuity between inherent law and existing law on real estate. After abolishment of feudalism, Japan Meiji Government adopts the Modern Europe Continental law, which divides the estate into the real rights (called “Bukken”) and the claim (called “Saiken”).
If I was to speak out without a fear of being mistaken, the real rights are the direct and exclusive power toward all the real and personal property, for example possessory rights, ownership, superficies, servitudes, retention rights, liens, pledges, mortgages.
On the other hand, the claim is the power toward the person, and the purposes of the claim rights are achieved only by the said person’s actions.
Ⅱ. Therefore, because of the higher power of the real rights which different in quality from the claim, Japanese Civil Code, that went into effect on June 16, 1898, stands by the principles that no real rights can be established other than those prescribed by laws including this Code (Article 175) and limited the number of the real rights in order to facilitate the real rights transaction.Ⅲ. And, more importantly, Meiji Government adopted the real property registration system at the same time in order to ensure the security of real-estate transaction, as a result, they also adopted above principle (Civil Code Article 175)and limited the number of the real rights in order for easy of public notice by the system.
【American System】
Ⅰ. In contrast to this, American laws retain continuity in real estate law between existing law and feudal law.
And, the United States takes on the common law (in the broad sense). It means that the U.S. adopts “the Law of the Case Doctrine” and that the American Real Estate Law has developed through the battles between the Common Law (in the narrow sense) and Equity and even now keeps on evolving.
Ⅱ. Originally, an estate is an interest in land that is or may become possessory and more important is an interest measured by some period of time. But, in order to facilitate the real estate transaction as is the case in Japan, gradually the law simplified and categorized them. And the judges recognized only three types of freehold estates and three types of leasehold estates.
(And, it would appear that the Escrow System is important in for facilitation of real-estate transaction.)
Ⅲ. But, the most states in the U.S. adopt the recording system rather than the registration system.
Therefore, the Title Insurance System plays an important role in ensuring the security of real-estate transaction.
