Are there any security registration requirements in your jurisdiction?
Lending & Secured Finance
Although as a general rule, the moment of creating security coincides with the moment of the conclusion of the agreement, this rule does not apply to security over real estate and over boats and aeroplanes, where the moment of registration with the land registry or registration with the relevant registries which record ownership titles, has constitutive effect.
Mortgage (lien) over a real property is subject to registration in the Real Estate Register (or, in case the real property is not registered in the Real Estate Register, pledge shall be registered in the Pledge Register held by the Czech Notarial Chamber. Pledge of shareholding interest/shares is subject to registration in the Czech Commercial Register. Pledge of a collective thing (quasi-floating charge) shall be registered in the Pledge Register too. Pledge of an IP right (such as trademark, patent) is subject to registration in the respective register held by Czech Industrial Property Office. Certain pledges are registered in the Pledge Register on a voluntary basis in order to protect the rank of the security.
Yes, for certain assets such as for real property, certain vessels and vehicles as well as for a floating charge and e.g. patents and trademarks, registration is required.
There is no general registration requirement under German law.
However, land charges require registration in the land register.
Certain IP rights may be registered in the relevant IP registers, however this registration is sometimes only being made prior to enforcement.
Some security documents (real estate and chattels) need to be registered in the Land Registry or Registry of Movable Assets in order to be validly perfected.
Registration is the operative act that perfects the security in most types of assets. The extent to which registration is required is discussed in item 4 above.
Security over trademarks and patents shall be registered with the Swedish Patent and Registration Office (Sw: Patent- och registreringsverket), and security over dematerialised financial instruments held on a securities account shall be registered with Euroclear Sweden AB.
Please also refer to question 4 and the registration procedures related to security over dematerialised corporate mortgage certificates and shares held on a securities account.
There are registration requirements in respect of certain types of security under Turkish law; such as mortgages and movable asset pledges subject to Movable Asset Pledge law. Please refer to our response under Question 4 above.
Several publicly accessible security registration systems govern based on type of collateral, generally for a security interest to have effect against third parties. These include (1) for most personal property, a notice filing with a state Uniform Commercial Code filing office, (2) for real property, recording in local (county or municipal) real property records offices, (3) for motor vehicles and state-titled vessels, notation of lien on the related title certificate issued by the state (in some cases an electronic record), (4) for railcars, a notice filing with the U.S. Surface Transportation Board, (5) for aircraft and certain related equipment, notice filings with the Federal Aviation Administration and with the International Registry established under the Cape Town Convention, (6) for U.S. flag vessels, a notice filed with the U.S. Coast Guard, (7) for copyrights, filing with the U.S. Copyright Office, and (8) for patents and trademarks, filing with the U.S. Patent and Trademark Office.
Except for security interests granted over real estate (see 4(a) above), aircraft, ships and cattle, which need to be registered with the relevant register, there is no security interest registration requirement in Switzerland.
Security documents granted by UK (i.e. those incorporated in England, Wales, Scotland or Northern Ireland) companies and limited liability partnerships must be registered with the relevant UK Registrar of Companies within 21 days of the date of their delivery. Failure to do so renders the security void against a liquidator or administrator or other creditor of the relevant chargor.
Security documents which create security over certain classes of assets located in the UK also need to be registered at the relevant asset register. To ensure and protect the priority of the security (i) charges over registered land located in England and Wales must be registered at the relevant office of the Land Registry; (ii) charges over unregistered land located in England and Wales must be registered at the Land Charges Registry; (iii) mortgages over British ships must be in a prescribed form and be registered at the ship's port of registration; and (iv) mortgages over British aircraft must be registered in the UK Aircraft Mortgage Register maintained by the Civil Aviation Authority. Security over registered intellectual property rights (such as trade marks and patents) will be void against a third party unless the relevant security document is registered at the relevant Patents, Trade Marks or Design Registry at the UK Intellectual Property Office and the appropriate fee (if any) is paid within six months of the creation of the charge.
Land. The ‘billet’ acknowledging the debt is lodged with the Registry of Deeds and registered in the Public Registry of Jersey on a Friday and once recorded in the Public Registry is enforceable against the real estate of the debtor over which it is secured. The form of an acknowledgement of indebtedness is prescribed in the Jersey Royal Court rules. A judicial hypothec needs to be re-registered to remain effective against third parties before the elapse of 30 years from its creation.
It is possible for a creditor to hold an unregistered ‘billet’ signed by the debtor with an authority to register it but a third party purchaser of the property will take free of that debt as it is not secured until it is registered.
Intangible Movable Property. Under the SIL, registration is critical for collateral where the security interest cannot be perfected by way of possession or control, for example, a security interest over contractual rights.
It is current market practice to register security even where a security interest has been perfected by way of control or possession for the purposes of:
a) protecting against the loss of possession or control of the collateral, for example where the lender misplaces a share certificate following completion of a secured financing; or
b) ensuring perfection of security over the proceeds of collateral.
Registration of a security interest may not be possible for every transaction either as a matter of law or following a commercial agreement between the parties.
The Security Interests (Registration and Miscellaneous Provisions) (Jersey) Order 2013 provides that it is not possible to register a security interest over property of a trust other than a Jersey property unit trust.
If the security provider is incorporated as a Hong Kong company or registered in Hong Kong as a registered non-Hong Kong company, and the asset falls into one of the registrable categories (covering any floating charge and fixed security over most, but not all, asset types), a security over that asset must be registered within one month of creation against the company at the Hong Kong Companies Registry.
In addition to the registration requirement at the Hong Kong Companies Registry, for the following asset types, the following perfection, protection and/or priority steps are also necessary or desirable:-
- real estate: registration at Hong Kong Land Registry
- trade marks, patent of registered design: registration at the applicable register
- aircraft: there is no register of aircraft mortgages in Hong Kong. However, it is market practice to notify Civil Aviation Department in Hong Kong of the security interest
- ship: registration at the Hong Kong Shipping Registry
Under Austrian law, only the pledging of real property (including plants) and intellectual property requires a registration. The registration requirements depend on the type of securities:
Real property (land) and plants need to be registered in the Austrian land register (Grundbuch). As mentioned under point 4.1. real property (land) and plants can serve as security, whereby this form of security is called mortgage (Hypothek). Besides the requirement of a valid title, the mortgage needs to be registered with the encumbrance sheet (Lastenblatt) of the relevant land register body to become effective. The registration is only permitted, if the respective mortgage agreement states either (i) a fixed amount of money as consideration (Festbetragshypothek) or (ii) a maximum amount of money (Höchstbetragshypothek).
Intellectual Property Rights
If a patent or a trademark is pledged, it has to be registered in the respective register, i.e. patent register (Patentregister) or trademark register (Markenregister) to become effective.
As mentioned above, security interests and collateral over real estate property are registered with state registries of property and commerce. Security interests on rights and other movable assets are registered with the RUG.
Bosnia & Herzegovina
Yes, depending on type of security. The security needs to be registered at an authorised institution, i.e. registry of pledge (movable assets, bank accounts, receivables, inventory, etc.), securities registry (for shares of joint stock companies), land registry/cadastre (real estate), intellectual property rights (Institute for Intellectual Property).