Conflict of laws distinguish between movable and immovable property. Generally, immovable property is governed by the law of the place where it is situated. This determines such matters as the nature of the property rights and their transfer and inheritance.
A distinction is made between moveable and immoveable property. Moveable property generally includes any rights to land or buildings. How the classification works will depend on the law of the country concerned and where the property is situated.
Property includes land and buildings, movable items, and intangible property such as shares, debts, trademarks, copyrights, etc. Three classifications: moveable, immoveable and intangible.
An interest in land including freehold and leasehold interest, legal and beneficial interest, and all manner of estate, interest, rights and licences are classified as immovable property. Fixtures are part of the property but fittings are not. Under common law certain items and things closely associated with the land or building were deemed immovable. This includes things as the keys of a house, title deeds, and fish in a pond. These are generally dealt with in accordance with the law of the place and are deemed immovable.
An interest in a mortgage of land is an immovable. Although a beneficial interest under a trust is in some respects in the nature of an equitable claim against the trustee, a trust of land is dealt with as an immovable. This is notwithstanding that for the purpose of rules on conversion and some other purposes it is deemed movable as if they have already been converted into money.
There is a distinction between tangible and intangible movables. The former are physical objects and the latter are in the nature of claims which must be asserted generally by court action. While the former would include goods and other physical objects, the latter includes choses in action such as debts, goodwill, stocks and shares.
One of the most universal principles in private international law is that the courts of the place where the land and other immovable property is situated determine ownership and title. An Irish court will not inquire into title matters in another jurisdiction and will look to that jurisdiction\’s laws in relation to the status of the property concerned. The principle is confirmed by EU Regulations.
The capacity of a person to take and transfer land will depend on the law of the place. Jurisdictions may have differing rules regarding legal capacity. For example there may be difference in the capacity of corporations or the age of minority may differ. The law of the place determines the formalities for land transfer. The local law may regard particular requirements as essential or specified but not mandatory.
The essential value validity of the transfer is dealt with by the law of the place. Rules as to what estate and interest exist, perpetuity rules, restrictions on transfers etc. are determined by the law of the place. In civil jurisdictions there are various restraints on owners transferring immovable property or a certain proportion of it, to the detriment of their heirs.
Generally a contract for the transfer of land must comply with the law of the place concerned. However the Rome Convention provides that, that if the format of a contract complies with the requirements of law of the place of contract or other law applicable under the Convention rules it is binding notwithstanding that it does not comply with the law of the place where the land is situated. A contract between two parties in another jurisdiction is not invalidated because it relates to foreign land.
In the absence of a choice of law the Convention provides that the essential validity of the contract is to be governed by the law of the country of which the contract is most closely connected. This will generally be the place where the land is situated. The same rule applies at common law in non-Convention cases.
Where a mortgage of a foreign immovable property has been validly made under domestic law, the domestic courts will compel the mortgagor to pay off the mortgage debt out of the proceeds of sale notwithstanding that it does not comply with the law of the place where the asset is situated or that a mortgage of that type is unknown in that jurisdiction.
A mortgage will not be enforced against a third-party transferee of the foreign land even where he takes with notice of the mortgage, unless he is bound by an obligation under the local law or by the local law itself, to satisfy the claims of the mortgagee.
The Irish courts may order performance of a contract relating to foreign land where the local law of the place where the asset is situated allows that order to be carried into effect and performed. The courts will act on their own principles in the exercise of jurisdiction over contracts made in Ireland and in administering equities between the parties within that jurisdiction by personal order.
A contract to grant a mortgage on foreign land which conforms with Irish law is enforceable in the mortgagor’s bankruptcy. Whether however any such right creates an interest in the foreign land depends, on that foreign jurisdiction’s rule.
Irish courts may grant relief in that case of fraud or inequitable dealings affecting foreign immovable property. A conveyance of a foreign immovable procured by fraud may be set aside.
An Irish court may order an account of rents and profits of foreign immovable property against persons liable to account for the same. In a suitable case, a receiver may be appointed. The court cannot put a receiver in possession of the foreign immovable. However, a person who impede, the receiver may be subject to orders based on contempt of court.
The law governing transfers of property and rights of property will often arise under a contract. The law that governs the contract is not necessarily the one that governs how the property is passed. The law distinguishes between questions relating to the contract and questions relating to the property.
In the case of immovable property, lands, buildings, and associated rights the law where the property is physically situated must always govern questions of transfer and creation of rights. Issues such as the capacity to transfer are usually governed by this law. The law will apply to leases, creation of mortgages, rights, and easements over property.
It is possible that an order may be made to pursue a contract to transfer land in another country. In this case the party to the contract might be obliged personally by the court perform it. However the Court cannot order the direct transfer of the property. If the transfer would be impossible under the law where the property is situated the law of the country whose is governing the contract would not apply it.
The capacity to transfer and the form required for transfer of foreign land is governed by the law of that jurisdiction. However, it may be binding in equity domestically between the parties even if it is ineffective to give good title in the foreign jurisdiction. There may be an equity binding under domestic law.
However as regards third parties, such a transfer has no more effect than the local law allows it. Therefore, third parties acquiring interests by the local law are not affected by such equitable right unless they are so affected under local law. Where however they take the property subject to an obligation to satisfy another’s equitable claim, they will be bound.
Where the local law absolutely forbids the assignments of an immovable this should be recognised in Ireland. Equities cannot be enforced in this case in respect of the property or its proceeds. The burdens to be borne by foreign immovable property are on the absence of a contract or a personal equity to be determined by the local rule.
An assignment of an immovable, which gives good title under the law of where the immovable is situated, is recognised in Ireland irrespective of the domicile and the position of the parties. Equity in assignment of an immovable in Ireland may be invalid unless it complies with Irish law.
Where the local law where the good are situated prescribes special formalities for validity, an assignment made without those formalities is not recognised. It seems likely that for an assignment to be valid in Ireland, the assignor must have the capacity to make the assignment and the assignee capacity to receive it in according to the law of their respective domiciles.
This seems to be the case wherever the assignment may be made. Where under the local law, a bona fide purchaser for value of immovable obtains good title, this is recognised by Irish law.