Could a non-accessory mortgage be easily accommodated in a legal system with an accessory mortgage? : a study on the functioning of the principle of accessoriness with regard to the non-accessory Euromortgage and the ac

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Could a non-accessory mortgage be easily

accommodated in a legal system with an

accessory mortgage?

A study on the functioning of the principle of accessoriness with regard to the

non-accessory Euromortgage and the accessory Dutch mortgage

Student : Sanne Keessen

Student number : 10645020

Master : European private law Course : European property law Supervisor : Selma de Groot

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4. Comparison 33 4.1 Introduction 33 4.2 Comparison 33 4.2.1 Accessoriness of origin 33 4.2.2 Accessoriness of extinguishment 33 4.2.3 Accessoriness of competency 34 4.2.4 Accessoriness of enforcement 34 4.2.5 Accessoriness of scope 35 4.3 Conclusion 35 5. Conclusion 37 6. Bibliography 39

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1. Introduction

1.1 Introduction

For many years, the European Commission and several research groups have been looking at the possibility to develop a common mortgage for Europe in order to facilitate cross-border lending.1 Such a mortgage, usually called ‘Euromortgage’ or ‘Eurohypothec’ (in this thesis I will use the term ‘Euromortgage’), should be a flexible security instrument that can easily be created and transferred. Therefore, one of the main features of the Euromortgage is that it is a non-accessory mortgage. This means, in short, that the existence of the Euromortgage is independent of the existence of the claim that is secured by the mortgage. As a result, the mortgagee of the Euromortgage can transfer the Euromortgage separately from the claim it secures for funding purposes and the mortgagor can re-use the Euromortgage as a security for new loans from the same creditor as well as from other creditors.2 However, in most European countries, including the Netherlands, France, Spain, Portugal, England, and Sweden, mortgages are accessory in nature, which means that their existence depends on the existence of a secured claim. Non-accessory mortgages are only present in Germany, Switzerland, and some Eastern European countries.3 It is therefore interesting to examine whether a non-accessory mortgage could be easily accommodated in a legal system with an accessory mortgage. The research question that will be answered in this thesis is thus formulated as follows:

Could a non-accessory mortgage be easily accommodated in a legal system with an accessory mortgage?

In order to answer this research question, this thesis comprises a study on the functioning of the principle of accessoriness with regard to the non-accessory Euromortgage on the one hand and the accessory Dutch mortgage on the other hand. Before setting out the research method and outline of this thesis, the principle of accessoriness will be explained in more detail.

1_{JHM van Erp and B Akkermans (eds), Cases, Materials and Text on National, Supranational and International Property}

law (Hart Publishing 2012) 1047.

2_{S Nasarre-Aznar, ‘The need for the integration of the mortgage market in Europe’ in JHM van Erp, AF Salomons and B}

Akkermans (eds), The Future of European Property Law (Sellier European Law Publishers 2012) 94.

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1.2 The principle of accessoriness

1.2.1 Introduction

The principle of accessoriness can be traced back to Roman law. It can be described by the Latin maxim “accessorium sequitur principale”, which can be translated as “an accessorial right follows a principal right”.4_{This means, in short, that an accessorial right is dependent on a}

principal right. Accessoriness thus refers to the link and the grade of dependency between an accessorial right and a principal right. With regard to the right of mortgage this means that accessoriness refers to the link and the grade of dependency between the two elements of a mortgage arrangement, namely the security right (i.e. the accessorial right) and the claim that is secured by the security right (i.e. the principal right).5 As a result, a right of mortgage is accessory if there is a proprietary link between the secured claim and the security right whereas a right of mortgage is non-accessory if the secured claim and the security right are independent from one another.6

An accessorial right can be dependent on a principle right in different ways, which ways can be regarded as applications of accessoriness. There are five applications of accessoriness, namely accessoriness of origin, accessoriness of extinguishment, accessoriness of competency, accessoriness of enforcement, and accessoriness of scope. These applications of accessoriness can be further divided into two types of accessoriness, namely structural accessoriness and functional accessoriness. The applications of accessoriness that belong to the category of structural accessoriness (i.e. accessoriness of origin, extinguishment, enforcement, and scope) have in common that they are based on the structure of accessorial rights.7 The most important characteristic of the structure of accessorial rights is that accessorial rights are directed at another right (e.g. a right of mortgage is directed at a claim).8_{The application of accessoriness}

that belongs to the category of functional accessoriness (i.e. accessoriness of competency), on the other hand, is based on the function of accessorial rights.9_{The most important characteristic}

4_{K. Swinnen, Accessoriteit in het vermogensrecht (Intersentia 2014) para 3.}

6_{O. Stöcker, ‘The Eurohypothec – Accessoriness as legal dogma?’ in A Drewicz-Tulodziecka (ed), Basic Guidelines for a}

Eurohypothec (Mortgage Credit Foundation 2005) 45.

7_{K. Swinnen, Accessoriteit in het vermogensrecht (Intersentia 2014) para 15.} 8_{Ibid para 23.}

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5 of the function of accessorial rights is that accessorial rights are created for the benefit of their principal right (e.g. a right of mortgage functions as a security for the repayment of a claim).10 What all applications of accessoriness have in common, however, is that they all result in the immediate and direct adaptation of the property-law regime of the accessorial right to the property-law regime of the principal right. In the case of a right of mortgage this means that the property-law regime of the right of mortgage is adapted to the property-law regime of the claim it secures.11_{The following paragraph discusses the five applications of accessoriness in}

more detail.

1.2.2 Applications of accessoriness

1.2.2.1 Accessoriness of origin

Accessoriness of origin means that an accessorial right is dependent on a principal right with regard to its creation.12 One can look at accessoriness of origin in a strict sense or in a flexible sense.13 In a strict sense, it means that an accessorial right cannot be created if there is no existing principle right. The creation of an accessorial right is thus dependent on the existence of a principal right, or, in other words, the existence of a principal right is a prerequisite for the creation of an accessorial right.14 Applied to the right of mortgage, this means that a right of mortgage cannot be created without an existing claim. As a result, the creation of the claim that will be secured by the right of mortgage has to precede or to coincide with the creation of the right of mortgage.15 In a more flexible sense, however, accessoriness of origin does not require the existence of a principal right for the creation of an accessorial right, but only the possible existence of a principal right. In other words, it only requires the certainty that a principal right can come into existence in the future.16_{According to this flexible view, the principle right at}

which an accessorial right is directed can be an existing right as well as a future right.17_Applied

10_{Ibid para 473.} 11_{Ibid para 366.} 12_{Ibid para 16.} 13_{Ibid para 22.} 14_{Ibid para 24.} 15_{Ibid para 31.} 16_{Ibid para 22.} 17_{Ibid para 29.}

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6 to the right of mortgage, this means that a right of mortgage can be created as a security for an existing claim as well as a future claim.18

Having a closer look at the flexible approach towards the application of accessoriness of origin, two conditions have to be complied with in order to create an accessorial right which is directed at a future principle right. First of all, the principle right must be capable of coming into existence,19_{and second, the principle right must be determinable.}20_{These conditions will be}

further explained with regard to the right of mortgage. A right of mortgage is an accessorial right because it is part of its structure that it is directed at a secured claim, which means that it is aimed at the performance of that claim. As a result, a right that is not aimed at the performance of a claim cannot be a right of mortgage. This explains the first condition, for if it is already certain at the moment of creation of a right of mortgage that the claim it is supposed to secure will never come into existence, that right will not be aimed at the performance of a claim and can therefore not be a right of mortgage. The same applies if after the creation of a right of mortgage, which was created as a security for a future claim, it becomes apparent that the secured claim will never come into existence. From that moment on the right of mortgage will cease to be a right of mortgage, for it no longer aims at the performance of a secured claim, and will stop to exist.21 The second condition, on the other hand, means that a right of mortgage has to be created in such a way that it is possible to identify the claim it secures.22 This condition is a necessary supplement to the first condition, for in order to know whether a secured claim can come into existence it has to be possible to identify that claim.23 Thus, the flexible approach towards the application of accessoriness of origin entails that an accessorial right cannot be created if it is certain that the principal right will never come into existence or if the principal right cannot be identified.24

18_{Ibid para 476.} 19_{Ibid para 69.} 20_{Ibid para 77.} 21_{Ibid para 69.} 22_{Ibid para 77 A.} 23_{Ibid para 77.} 24_{Ibid para 476.}

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1.2.2.2 Accessoriness of extinguishment

Accessoriness of extinguishment means that an accessorial right is dependent on a principal right with regard to its extinction.25 Whereas the consequence of the application of accessoriness of origin is that an accessorial right cannot come into existence without (the possible existence of) a principal right, the consequence of the application of accessoriness of extinguishment is that an accessorial right cannot continue to exist without such a right. As a result, the extinction of the principal right will lead, by operation of law, to the extinction of the accessorial right.26 After all, an accessorial right will no longer be directed at another right if that other right no longer exists. Applied to the right of mortgage, this means that a right of mortgage will no longer be a right of mortgage if the claim it secures no longer exists.27 As a result, the extinction of the secured claim will lead to the extinction of the right of mortgage,28 and thus the property on which the right of mortgage was vested will be released.29 Accessoriness of extinguishment applies if two conditions are fulfilled. First of all, the principle right must have extinguished completely.30 This means that in the case of a partial extinction of the principal right, the accessorial right will continue to exist with regard to the remaining part of that right.31 Secondly, the principle right must have extinguished permanently.32 This means that in the case that the principal right revives with retroactive effect, the accessorial right will revive as well.33

Accessoriness of extinguishment bears a strong resemblance with accessoriness of origin, for both applications of accessoriness act as a ‘sanctioning mechanism’ in the case that an accessorial right is not or no longer in accordance with its own structure (i.e. if an accessorial right is not or no longer directed at another right). As a result, an accessorial right that is not directed at another right will not come into existence and an accessorial right that is no longer directed at another right will stop to exist.34_{In this sense, both applications of accessoriness are}

25_{Ibid para 16.} 26_{Ibid para 127.} 27_{Ibid para 123.} 28_{Ibid para 127.}

29_{J.C. Out, Vormen van accessoriëteit: een Romanistische studie over het verschĳnsel accessoriëteit bĳ het}

goederenrechtelĳke zekerheidsrecht (GNI 2005) 15.

32_{Ibid para 167.} 33_{Ibid para 270.} 34_{Ibid para 125.}

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8 related to the existence of accessorial rights, which includes both their creation and their continued existence.35 The difference between both applications is, however, that they apply at different moments in time; accessoriness of origin applies prior to the creation of an accessorial right whereas accessoriness of extinguishment applies after its creation.36

1.2.2.3 Accessoriness of competency

Accessoriness of competency means that the holder of the principal right is also entitled to the accessorial right. In other words, the holder of the principal right is one and the same person as the holder of the accessorial right. In the case of a right of mortgage, this means that the creditor of the secured claim is the same person as the holder of the right of mortgage.37 This application of accessoriness applies in three ways, which will be explained with regard to the right of mortgage. First of all, it is not possible to vest a right of mortgage for the benefit of another person than the creditor of the secured claim.38 Secondly, a legal act that results in the transfer of the secured claim will, immediately and by operation of law, also result in the transfer of the right of mortgage.39 The transferee of the secured claim thus becomes entitled to both the secured claim and the right of mortgage, without the performance of an act of transfer with regard to the right of mortgage.40 At last, accessoriness of competency entails that a right of mortgage cannot be the object of a separate legal act that results in its transfer, without transferring the secured claim as well.41

1.2.2.4 Accessoriness of enforcement

Accessoriness of enforcement means that an accessorial right is dependent on a principal right with regard to its enforceability, as a result of which an accessorial right can only be enforced if the principal right can be enforced. With regard to the right of mortgage, this means that a

35_{Ibid para 21.} 36_{Ibid para 125.}

Eurohypothec (Mortgage Credit Foundation 2005) 45-46.

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9 right of mortgage can only be enforced (i.e. realised) if the secured claim can be enforced.42 As a result, the defences that can be invoked by the debtor/mortgagor in the event that the creditor/mortgagee demands performance of the secured claim can also be invoked in the event that the creditor/mortgagee wants to realise his right of mortgage. Thus, defences based on the contractual relationship between the parties extend to their relationship at a property-law level.43

A claim can be enforced if two conditions are complied with. First of all, the claim has to be demandable (in Dutch: opeisbaar), and secondly, the claim has to be enforceable (in Dutch: afdwingbaar).44 A claim is enforceable if a creditor can legally force its debtor to pay the claim. A claim is demandable, on the other hand, if a creditor can demand its debtor to pay the claim, irrespective of whether he has the possibility to legally enforce the payment of that claim.45 This means that enforceability presumes demandability, for all enforceable claims are necessarily demandable claims as well whereas all demandable claims do not necessarily have to be enforceable claims.46 As a result, accessoriness of enforcement consists of two components. The first component entails that a right of mortgage cannot be realised as long as the secured claim is not demandable.47 So as long as the creditor/mortgagee is not entitled to the payment of the secured claim, he cannot realise its right of mortgage.48 The second component entails that a right of mortgage can no longer be realised as soon as the secured claim can no longer be enforced due to extinctive prescription.49 This means that two phases can be distinguished: a phase before the secured claim has become demandable and a phase after the secured claim has been enforceable.50 Thus, the defences that can be raised by the debtor/mortgagor against enforcement of the right of mortgage by the creditor/mortgagee are the defence that the claim is not yet demandable and the defence that the legal action of the creditor/mortgagor has become barred.51

42_{Ibid para 16.}

45_{Ibid para 282. As a general rule, a creditor can demand payment of its claim immediately after the creation of the claim}

(see ibid para 289 A). However, it is possible for the debtor and the creditor to deviate from this rule by contract (see ibid para 298 B). 46_{Ibid para 282.} 47_{Ibid para 310.} 48_{Ibid para 280.} 49_{Ibid para 310.} 50_{Ibid para 281.}

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1.2.2.5 Accessoriness of scope

Accessoriness of scope means that an accessorial right is dependent on a principal right with regard to its scope, as a result of which the scope of an accessorial right is limited by the scope of its principal right.52_{With regard to the right of mortgage, this can be explained as follows.}

The scope of a right of mortgage is determined by the maximum amount of money that the holder of the right of mortgage can get out of the proceeds of the execution of the right of mortgage. Through the application of accessoriness of scope, this amount is limited by the amount of the secured claim.53 Therefore, the holder of a right of mortgage cannot get more money out of the proceeds of the execution of its right then required for the performance of that claim.54 Furthermore, the application of accessoriness of scope entails that in the case of a partial extinction of the secured claim (e.g. because of a partial payment of that claim), the scope of the right of mortgage will, by operation of law, be adapted to the scope of the secured claim. In this respect, accessoriness of scope should be distinguished from accessoriness of extinguishment. The difference between both applications of accessoriness is that accessoriness of extinguishment applies in the case of a complete extinction of the principal right whereas accessoriness of scope applies in the case of a partial extinction of the principal right. As a result, the former leads to the extinction of the accessorial right whereas the latter leads to the continued existence of the accessorial right, though limited in scope.55

The scope of a right of mortgage should not be confused with the object of a right of mortgage.56 The object of a right of mortgage (i.e. the property the right of mortgage is vested on) is in its entirety encumbered with the entire right of mortgage, independent of the amount of the secured claim.57 As a result, a partial performance of the secured claim does not lead to a partial release of the object from the right of mortgage.58_{Thus, the consequences of a partial extinction}

of the secured claim differ as to the object of a right of mortgage on the one hand (i.e. no

54_{Ibid para 267.} 55_{Ibid para 271.}

57_{K. Swinnen, Accessoriteit in het vermogensrecht (Intersentia 2014) para 272 A-B.} 58_{Ibid para 277 B.}

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11 consequences) and the scope of a right of mortgage on the other hand (i.e. an adaptation of the scope of the right of mortgage to the scope of the secured claim).59

1.3 The rationale behind the principle of accessoriness

1.3.1 Introduction

After having described the various applications of accessoriness, I will now have a look at the functions that the principle of accessoriness fulfils within the law of property. In other words, I will look at the rationale behind the principle of accessoriness. One can distinguish two functions of the principle of accessoriness within the law of property, namely a protective function and a simplifying function.60 Both functions will be discussed in more detail below.

1.3.2 The protective function of the principle of accessoriness

The protective function of the principle of accessoriness applies in three ways. First of all, the principle of accessoriness protects the person who encumbers his property with a right of mortgage, i.e. the mortgagor of the right of mortgage. The mortgagor is protected because the principle of accessoriness entails that the property-law regime of the right of mortgage is continuously and by operation of law adapted to the property-law regime of the secured claim. Thus, the principle of accessoriness ensures that a right of mortgage can only be enforced with regard to the claim for the repayment of which the mortgage was initially vested, that a right of mortgage cannot be enforced if that claim is extinguished, and that the scope of a right of mortgage is limited by the scope of that claim.61

Secondly, the principle of accessoriness protects economic values. The economic value that is meant in this respect is the value that is generated by creating an accessorial right for the benefit of a principal right. In the case of a right of mortgage, this is the value that is generated by creating a right of mortgage in order to secure the performance of a claim. The principle of

59_{Ibid para 273.} 60_{Ibid para 483.} 61_{Ibid para 455.}

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12 accessoriness protects this value by keeping the right of mortgage and the secured claim legally together.62

At last, the principle of accessoriness enhances legal certainty by protecting the legal expectations of third parties. With regard to the right of mortgage, the principle of accessoriness first of all protects the legal expectations of the other creditors of a person who has encumbered his property with a right of mortgage. Because of the principle of accessoriness, the other creditors can rely upon it that the right of mortgage can only be executed with regard to the claim for the repayment of which the right of mortgage was initially vested, and that the mortgagee will not get more money out of the proceeds of the execution of the right of mortgage than the value of that claim. Furthermore, they may rely upon it that the right of mortgage will extinguish after the extinction of the secured claim. Secondly, the principle of accessoriness protects the legal expectations of the acquirer of a claim that is secured by a right of mortgage, for he can rely upon it that he will acquire the right of mortgage along with the claim.63

1.3.3 The simplifying function of the principle of accessoriness

The simplifying function entails that the principle of accessoriness leads to a simplification of legal transactions, because a legal act with regard to the principle right automatically includes the accessorial right. With regard to the right of mortgage this means on the one hand that changes with regard to the existence, scope, and enforcement of the secured claim automatically change the existence, scope, and enforcement of the right of mortgage as well, and on the other hand that the transfer of the secured claim automatically leads to the transfer of the right of mortgage. The parties to a legal act regarding the secured claim therefore do not have to perform a separate legal act with regard to the right of mortgage, which simplifies legal transactions.64

1.4 Research method

This thesis comprises a study on the functioning of the principle of accessoriness with regard to the non-accessory Euromortgage, as set out by the research group ‘The Eurohypothec: a

62_{Ibid para 465.}

63_{Ibid paras 467, 468 and 484.} 64_{Ibid paras 469 and 485.}

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13 common mortgage for Europe’ in its ‘Basic Guidelines for a Eurohypothec’,65_{and the}

accessory Dutch mortgage. In this respect, I will first of all examine whether and to what extent the five applications of accessoriness are applied to the Euromortgage and the Dutch mortgage. I will therefore answer the following questions with regard to both mortgages:

1. Is the creation of a right of mortgage dependent on the (possible) existence of a secured claim?

2. Does a right of mortgage extinguish after the extinction of the secured claim?

3. Does the creditor of the secured claim have to be the same person as the holder of the right of mortgage?

4. Can a right of mortgage only be enforced if the secured claim can be enforced? 5. Is the scope of a right of mortgage limited by the scope of the secured claim?

After that, I will make a comparison between the Euromortgage and the Dutch mortgage, and I will examine the most important differences and similarities between both types of mortgage in the light of the rationale behind the principle of accessoriness. This will allow me to answer the research question of this thesis. Thus, the research method used in this thesis is the functional method.

1.5 Outline of this thesis

The outline of this thesis is as follows. Chapter 2 starts with an overview of the development of the concept of the Euromortgage, the need for a Euromortgage, and the main features of the Euromortgage. After that, it addresses the functioning of the principle of accessoriness with regard to the Euromortgage. Chapter 3 addresses the functioning of the principle of accessoriness in Dutch mortgage law, after a short introduction to the law of property in the Netherlands. Chapter 4 contains a comparison of the functioning of the principle of accessoriness with regard to the Euromortgage and the Dutch mortgage, and Chapter 5, at last, concludes this thesis by answering the research question.

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2. The Euromortgage

This chapter deals with the functioning of the principle of accessoriness with regard to the Euromortgage. Before addressing the principle of accessoriness, paragraph 2.2 gives an overview of the development of the concept of the Euromortgage, paragraph 2.3 discusses the need for a Euromortgage, and paragraph 2.4 describes the main features of the Euromortgage. After this, paragraph 2.5 will answer the question whether, and to what extent, the five applications of accessoriness are applied to the Euromortgage. Paragraph 2.6, at last, discusses whether or not the rationale behind the principle of accessoriness is preserved with regard to the Euromortgage.

2.2 The development of the concept of the Euromortgage

The idea to create a common mortgage for Europe was first raised in the 1960s by a research group appointed by the Commission of the European Economic Community. This research group, headed by Claudio Segré, had to investigate the implications of the integration of the capital markets in Europe. It laid down its findings in a report called ‘The Development of a European Capital Market’ (also referred to as the ‘Ségre Report’) and proposed to harmonise the laws of the Member States on security rights over real property. It further stated that the introduction of a mortgage common to all the Member States would help to integrate the European capital markets, and put forward the non-accessory German Grundschuld as a model for such a mortgage.66

In the 1980s, the Commission for European Affairs (CACE) of the International Union of Latin Notaries (UINL) set up a special committee which had to deal with the possibilities for the creation of a common European mortgage.67 This committee proposed, in its report of 1987, to make a pan-European mortgage available to lending institutions alongside the security rights over real property existing in each Member State. It suggested to structure this mortgage

67_{HG Wehrens, ‘Real security regarding immovable objects – reflections on a Euro-mortgage’ in AS Hartkamp (ed),}

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15 according to the model of the non-accessory Swiss Schuldbrief, in order to create a marketable and versatile security right over real property.68

In March 2003, the European Commission created the Forum Group on Mortgage Credit, which had to ‘identify the barriers to the smooth functioning of the Internal Market for mortgage credit, assess the impact of such barriers on the functioning of the Internal Market, and make recommendations to the Commission to tackle these barriers’. At the end of 2004, the Forum Group presented its findings and recommendations in a report called ‘The Integration of the EU Mortgage Credit Markets’.69_{In its chapter on collateral issues, the Forum}

Group identified the strong link between secured claims and security rights, which is present in the majority of the legal systems in Europe, as one of the main barriers to the functioning of the Internal Market for mortgage credit. It therefore recommended the Commission to effectuate a flexibilisation of this link, by replacing the application of the principle of accessoriness by an accessoriness agreement between the lender and the owner of the property on which the right of mortgage is vested, and to explore the concept of the Euromortgage.70 In Annex VI of the report, the Euromortgage is defined as ‘a security instrument … that can be used to encumber properties in a pan-European sense and with greater flexibility of use than that offered by purely domestic security instruments’.71

In June 2004, the research group ‘The Eurohypothec: a common mortgage for Europe’ was launched. This research group organised two workshops together with the members of the collateral subcommittee of the Forum Group on Mortgage Credit, the European Land Information Service (EULIS) and the European University Institute, which workshops led to the presentation of a paper containing basic guidelines for a Euromortgage in May 2005. These guidelines will be discussed in more detail below.72

Two months after the presentation of the ‘Basic Guidelines for a Eurohypothec’, the European Commission presented a ‘Green Paper on Mortgage Credit in the EU’. In this Green Paper, the Commission launched a consultation in order to assess whether Commission action would be

Eurohypothec (Mortgage Credit Foundation 2005) 39-40.

69_{‘The Integration of the EU Mortgage Credit Markets’ (European Communities 2004) 1.} 70_{Ibid p. 29-31.}

71_{Ibid p. 55.}

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16 required to integrate the mortgage credit markets in the EU and to make these markets more efficient and competitive.73 It invited views on various topics, including the feasibility and desirability of the Euromortgage.’74_{The European Commission set out the results of this}

consultation in a ‘White Paper on the Integration of EU Mortgage Credit Markets’, which was presented in December 2007. This White Paper described the measures proposed by the Commission in order to improve the efficiency and competitiveness of the mortgage credit markets in the EU.75_{The Euromortgage, however, was not included amongst the proposed}

measures. The financial crisis, that hit Europe at the end of 2007, had shown the dangers of non-accessory security rights. Therefore, the White paper only dealt with the contractual aspects of providing mortgage credit and left the property aspects to the laws of the individual Member States.76

Subsequent to the White Paper, the European Commission proposed a ‘Directive on credit agreements for consumers relating to residential immovable property’ (referred to as the ‘Mortgage Credit Directive’) in March 2011. The reasons for proposing this Directive were to constrain irresponsible lending and borrowing practices and to regain consumer confidence in the financial system on the one hand, and to create a more efficient and competitive European market for mortgages on the other hand.77 The Directive, which was adopted in February 2014, deals with the issue of consumer protection in the field of mortgage credit agreements and addresses the contractual aspects of these agreements.78

As this overview shows, the European Commission has in recent years only been engaged with the contractual aspects, and not with the property-law aspects, of mortgage lending. However, since the accessory nature of the Euromortgage seems to have been an important reason for holding up the creation of a Euromortgage, it is very interesting to have a closer look at the

73_{European Commission, ‘Green Paper on Mortgage Credit in the EU’ COM (2005) 327 final 3-4.} 74_{Ibid p. 13.}

75_{Ibid p. 2-3.}

76_{JHM van Erp and B Akkermans (eds), Cases, Materials and Text on National, Supranational and International Property}

law (Hart Publishing 2012) 1052. The Euromortgage is mentioned in two Annexes of the White Paper though. Annex 2 states

that the Euromortgage is a matter of study since the release of the Green Paper, and Annex 3 states that the creation of a Euromortgage could be a solution in the field of the transfer of mortgage portfolios. See S Nasarre-Aznar, ‘The need for the integration of the mortgage market in Europe’ in JHM van Erp, AF Salomons and B Akkermans (eds), The Future of

European Property Law (Sellier European Law Publishers 2012) 91.

77_{‘Mortgages: better protection for European consumers’, IP/11/383.}

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17 functioning of the principle of accessoriness and the differences and similarities between accessorial and non-accessorial security rights.

2.3 The need for a Euromortgage

As the overview of the development of the concept of the Euromortgage in the previous paragraph has shown, the main goal of the Euromortgage is to facilitate the creation of a European market for mortgage credit.79_{One of the main barriers for the creation of such a}

European mortgage market is that there are considerable differences between the mortgage laws of the Member States of the European Union. Therefore, a lending institution that wants to engage in cross-border mortgage transactions in the EU has to study 28 mortgage regimes in order to assess the lending risk in each Member State. But even after having studied foreign mortgage instruments, foreign lending institutions will never be able to compete under the same conditions as local lending institutions, for they are not accustomed to using those instruments.80 This barrier cannot be overcome by rules of private international law, because the law applicable to cross-border mortgage transactions is the law of the country where the property on which the mortgage is vested is located (i.e. the lex rei sitae rule).81 Furthermore, there are several cross-border as well as local businesses which are not possible without an instrument like the Euromortgage. For example, it is currently not possible to secure one or more loans with a mortgage which is vested on several properties located in different Member States.82 The Euromortgage would therefore be the ideal instrument to overcome the differences between the mortgage instruments of the Member States and to enhance cross-border mortgage transactions.83

79_{Ibid p. 82.}

80_{S Nasarre-Aznar, ‘Looking for a model for a Eurohypothec’, Paper for the Real Property Law Project Conference 2004 of}

the European University Institute, p. 3.

Towards a European Civil Code (Kluwer Law International 2004) 779.

82_{S Nasarre-Aznar, ‘Looking for a model for a Eurohypothec’, Paper for the Real Property Law Project Conference 2004 of}

the European University Institute, p. 3.

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2.4 The features of the Euromortgage

The Euromortgage is a non-accessory security right on land which entitles the holder of the Euromortgage to the payment of a certain sum of money out of the piece of land on which the mortgage is vested.84_{A Euromortgage can be created by the owner of the land}85_{and has to be}

registered in the competent register of the Member State where the land is located. Without registration, the Euromortgage will not be opposable against third parties. The registration of a Euromortgage should contain the amount of the Euromortgage,86_{the land charged by the}

Euromortgage, the name of the holder of the Euromortgage, whether the Euromortgage is structured as a certificated right or as a non-certificated right, and whether the Euromortgage is enforceable.87 The law applicable to the creation and registration of the Euromortgage is the law of the Member State where the land is located (i.e. the lex rei sitae rule).88 That way, the Euromortgage can be easily introduced in all Member States of the European Union, irrespective of whether national law prescribes that a right of mortgage is created by the mere execution of a notarial mortgage deed, by the execution of a notarial mortgage deed plus registration in the land register, or without notarial intervention.89 The only way in which a Euromortgage can extinguish is by deletion of the mortgage from the land register.90

A Euromortgage is regularly used in combination with a security agreement.91_{The legal}

relationship between the holder of the Euromortgage and the owner of the land on which the Euromortgage is vested will thus consist of three elements: a Euromortgage, a loan agreement, and a security agreement.92_{The security agreement contains the obligation of the land owner}

to provide the Euromortgage by way of security to the holder (or future holder) of the

84_{A Drewicz-Tulodziecka (ed), ‘Basic Guidelines for a Eurohypothec’ (Mortgage Credit Foundation 2005) para 2.1.} 85_{Ibid para 3.1. It should be noted that the land owner may be a different person than the debtor of the claim that is secured}

by the Euromortgage.

86_{The Euromortgage should be regarded as an entity on its own, with its own value. See S Nasarre-Aznar, ‘The need for the}

integration of the mortgage market in Europe’ in JHM van Erp, AF Salomons and B Akkermans (eds), The Future of

European Property Law (Sellier European Law Publishers 2012) 94.

87_{A Drewicz-Tulodziecka (ed), ‘Basic Guidelines for a Eurohypothec’ (Mortgage Credit Foundation 2005) para 3.2.} 88_{Ibid para 2.3.}

89_{AA van Velten, ‘Hypotheek en Europese Gemeenschap’ (1991) 6001 WPNR 245.}

Towards a European Civil Code (Kluwer Law International 2004) 777. It should be noted that a loan agreement and a

security agreement are not required for the existence of a Euromortgage, for a Euromortgage can exist as a right in itself, without being attached to a claim. According to paragraph 4.2 of the Basic Guidelines, a security agreement is only required if a Euromortgage is acquired as a security by another person than the owner of the land on which the mortgage is vested.

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19 Euromortgage (i.e. the causa of the Euromortgage) on the one hand,93_{and the obligation of the}

holder of the Euromortgage to use the Euromortgage only under the conditions as agreed upon in the security agreement on the other hand.94_{The lex rei sitae rule is applicable to the security}

agreement.95_{However, the security agreement has to contain certain minimum provisions, like}

a description of the Euromortgage and the claims that are to be secured by the mortgage as well as the conditions for redemption and enforcement of the Euromortgage.96

The Euromortgage can be used to secure cross-border loans as well as national loans,97_though

the typical situation the Euromortgage seeks to address is the situation in which the holder of the Euromortgage is located in a different Member State than the piece of land which is to be used as a security for a loan.98_{The object of a Euromortgage can be any land situated in a}

Member State of the European Union. One Euromortgage can charge several pieces of land situated within the same Member State (i.e. a joint Euromortgage or a multi-parcel Euromortgage), and several Euromortgages in different Member States can secure one or more claims through a single security agreement (i.e. a transnational Euromortgage).99

The Basic Guidelines present two options for the implementation of the Euromortgage. The first option is to introduce the Euromortgage by regulation as a 29th regime, existing next to the land charges of the national laws of the Member States of the European Union. The second option is to introduce the Euromortgage by directive, which can be implemented by adapting an existing national land charge or by creating a new type of land charge under national law.100 Either way, the Euromortgage does not replace the national types of security rights existing in the Member States, but will be an additional security right. Thus, the complications deriving from the differences between the national mortgage laws of the Member States will be avoided.101

93_{A Drewicz-Tulodziecka (ed), ‘Basic Guidelines for a Eurohypothec’ (Mortgage Credit Foundation 2005) para 4.1.} 94_{HG Wehrens, ‘Real security regarding immovable objects – reflections on a Euro-mortgage’ in AS Hartkamp (ed),}

97_{Ibid para 4.1.}

99_{A Drewicz-Tulodziecka (ed), ‘Basic Guidelines for a Eurohypothec’ (Mortgage Credit Foundation 2005) para 3.5.} 100_{Ibid para 11.}

101_{V Sagaert, ‘Harmonization of Security Rights on Immoveables: An Ongoing Story’ in AS Hartkamp (ed), Towards a}

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20

2.5 The applications of the principle of accessoriness

2.5.1 Accessoriness of origin

The Euromortgage is non-accessory with regard to its creation, which means that the creation of a Euromortgage does not depend on the existence of a (present or future) secured claim.102 As a result, the land owner can create a Euromortgage before the conclusion of a loan agreement or before the disbursement of a loan.103_{A Euromortgage can thus be created and}

registered in advance, in order to be immediately available when needed at a later moment in time.104 Furthermore, a Euromortgage will continue to exist if the claim it secures is annulled after the creation of the Euromortgage.105

2.5.2 Accessoriness of extinguishment

The Euromortgage is non-accessory with regard to its extinction, which means that the extinction of the secured claim does not lead to the extinction of the Euromortgage.106 A Euromortgage extinguishes after deletion of the mortgage from the land register, not after payment of the secured claim.107 After payment of the secured claim, the land owner can either demand deletion of the Euromortgage from the land register or a transfer of the Euromortgage to himself or to a third party.108 As a result, the land owner can re-use the Euromortgage as a security for another loan from the same of from another creditor, without having to create a new right of mortgage.109 Furthermore, it is possible to retain the same Euromortgage as a security in the case that the secured claim is replaced by a new claim (i.e. in the case of novation).110 Thus, one Euromortgage can be used for several loan transactions.111

105_{V Sagaert, ‘Harmonization of Security Rights on Immoveables: An Ongoing Story’ in AS Hartkamp (ed), Towards a}

European Civil Code (Kluwer Law International 2011) 1051.

108_{Ibid para 6.3. It should be noted that the security agreement may state other cases in which the land owner has the right to}

demand deletion of the Euromortgage from the land register or the transfer of the Euromortgage.

109_{Ibid para 1.4.} 110_{Ibid para 1.7.}

111_{JHM van Erp, ‘A comparative analysis of mortgage law: searching for principles’ in ME Sánches Jordán and A Gambarro}

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21

2.5.3 Accessoriness of competency

The holder of a Euromortgage does not have to be one and the same person as the holder of the secured claim.112_{The transfer of the secured claim to a third party does not lead to the automatic}

transfer of the Euromortgage, and, the other way around, a Euromortgage can be transferred independent of the claim it secures.113_{Furthermore, a Euromortgage can be created as an}

owner's mortgage, in which case the land owner will be both the mortgagor and the mortgagee of the Euromortgage.114

2.5.4 Accessoriness of enforcement

Due to the non-accessory nature of the Euromortgage, the enforcement of a Euromortgage does not depend on the enforcement of the secured claim.115 This means that the holder of a Euromortgage can start enforcement proceedings based on the mere evidence that he is the holder of the Euromortgage.116 In other words, the Euromortgage is an enforceable title in itself.117 However, to prevent enforcement of the Euromortgage the land owner will be able to raise defences arising from the security agreement. Thus, defences based on the contractual relationship between the parties extend to their relationship at a property-law level.118

The question arises whether the land owner will be able to raise defences arising from the security agreement in the case that the holder of the Euromortgage is not the same person as the creditor of the secured claim, for the holder of the Euromortgage might then not be a party to the security agreement.119_{In the case that the secured claim is transferred to a new creditor}

without transferring the Euromortgage as well the land owner will be able to raise defences

113_{A Drewicz-Tulodziecka (ed), ‘Basic Guidelines for a Eurohypothec’ (Mortgage Credit Foundation 2005) para 5.5. In the}

case of a non-certificated Euromortgage, the transfer of the Euromortgage requires registration in the land register. In the case of a certificated Euromortgage, the transfer of the Euromortgage requires the transfer of the certificate to the new holder of the Euromortgage (registration is not required). See paragraphs 5.1 and 5.2 of the Basic Guidelines.

114_{JHM van Erp, ‘A comparative analysis of mortgage law: searching for principles’ in ME Sánches Jordán and A Gambarro}

(eds), Land Law in Comparative Perspective (Kluwer Law International 2002) 84.

118_{A Drewicz-Tulodziecka (ed), ‘Basic Guidelines for a Eurohypothec’ (Mortgage Credit Foundation 2005) para 8.2.} 119_{O. Stöcker, ‘The Eurohypothec – Accessoriness as legal dogma?’ in A Drewicz-Tulodziecka (ed), Basic Guidelines for a}

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22 arising from the security agreement, because the holder of the Euromortgage is in that case a party to that agreement. In the case that a Euromortgage is transferred without transferring the secured claim as well, however, it is uncertain whether the new holder of the Euromortgage, who is no party to the security agreement, will be bound by defences arising from the security agreement. Therefore, Stöcker suggests, in his complementary paper to the Basic Guidelines, to provide that defences arising from the security agreement can also be invoked against transferees of the Euromortgage.120_{If this will not be provided for, the transferor of the}

Euromortgage will be liable in tort towards the land owner.121

2.5.5 Accessoriness of scope

The scope of a Euromortgage is determined by the amount of money that the holder of the Euromortgage can get out of the proceeds of an execution of the mortgage. Due to the non-accessory nature of the Euromortgage, the amount of the Euromortgage does not reflect the amount owed by the debtor of the secured claim. Therefore, the scope of the Euromortgage is not dependent on the scope of the claim it secures.122_{As a result, the holder of a Euromortgage}

can demand payment of the full amount of the Euromortgage (i.e. the amount as registered in the land register), even if the debtor has made payments to the secured claim. In other words, if the debtor makes payments to the secured claim the amount of that claim will be reduced, but the amount of the Euromortgage will not be affected. However, the exercise of the rights of the holder of a Euromortgage will be contractually restricted by the security agreement.123

Therefore, the land owner will be able to dispute the amount of the secured claim in enforcement proceedings, based on the security agreement.124

2.6 The rationale behind the principle of accessoriness

The discussion of the applications of accessoriness in the previous paragraph has shown that none of the applications of accessoriness apply to the Euromortgage. However, even though the principle of accessoriness does not apply to the Euromortgage, this does not mean that a

120_{Ibid p. 49.}

122_{P Sparkes, European Land Law (Hart Publishing 2007) para 9.30.}

123_{JB Vegter, ‘Over het rechtskarakter van de Eurohypotheek’ (1993) 6077 WPNR 55, 57.}

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23 Euromortgage is not dependent on the claim it secures. Because of the conclusion of a security agreement, a Euromortgage is in fact contractually dependent on the claim it secures. The link between a Euromortgage and the claim it secures is thus established at a contractual level and not at a property-law level. It is therefore interesting to examine whether the rationale behind regulating the link between a mortgage and the claim it secures at a contractual level is different from the rationale behind regulating that link at a property-law level, or whether the same rationale is preserved in both situations. Taking the functions of the principle of accessoriness as a starting point, it strikes out that the function of protection of the mortgagor is safeguarded in the case of a Euromortgage as well. Although the protection of the mortgagor is not regulated at a property-law level, the mortgagor is protected by means of the security agreement. Therefore, the security agreement fulfils in this respect the same function as the principle of accessoriness. The function of protection of economic values, however, is of no relevance with regard to the Euromortgage, because the Euromortgage is a right which has a value on its own and which is independently transferable. The function of protection of the legal expectations of third parties is also not safeguarded with regard to the Euromortgage, for the security agreement has no third party effect. At last, the Euromortgage does not simplify legal transactions by automatically including the right of mortgage in legal transactions regarding the secured claim. However, the Euromortgage does simplify legal transactions in another way; it facilitates the market of mortgage lending by making it easier to create and transfer a right of mortgage. In that sense, the non-accessory Euromortgage is based on a different rationale than a mortgage which is subjected to the principle of accessoriness.

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24

3. The Dutch mortgage

This chapter deals with the functioning of the principle of accessoriness in Dutch mortgage law. Before addressing the principle of accessoriness, paragraph 3.2 gives a general introduction to the law of property and the used terminology in the Netherlands. After that, paragraph 3.3 will answer the question whether, and to what extent, the five applications of accessoriness are applied to the Dutch mortgage. Paragraph 3.4, at last, discusses whether or not the rationale behind the principle of accessoriness is preserved in Dutch mortgage law.

3.2 Dutch property law

3.2.1 Property and property rights

According to the law of property in the Netherlands, which is primarily laid down in Book 3 and Book 5 of the Dutch Civil Code (hereinafter: DCC), property rights can be held with regard to corporeal property (in Dutch: zaken) and incorporeal property (in Dutch: vermogensrechten).125 Corporeal property can be divided into immovable property (i.e. land and buildings) and movable property (i.e. all objects that are not immovable).126 Furthermore, property can be divided into registered property and unregistered property. Property is called registered property if registration in a public register is required for the transfer of that property, which is required for the transfer of immovable objects as well as registered vessels and aircrafts.127

Property rights can be divided into full property rights and limited property rights.128 An example of a full property right is the right of ownership, which is defined in the Dutch Civil Code as the most comprehensive right a person can have with regard to corporeal property.129 A limited property right is a property right that is derived from a more comprehensive property

125_{Article 3:1 DCC.} 126_{Article 3:3 DCC.} 127_{Article 3:10 DCC.}

128_{HJ Snijders and EB Rank-Berenschot, Studiereeks Burgerlijk Recht Deel 2: Goederenrecht (Kluwer 2012) para 50.} 129_{Article 5:1 DCC.}

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25 right.130 Limited property rights can be divided into rights of use and rights of enjoyment on the one hand and security rights on the other hand.131 Dutch property law recognises two limited security property rights, namely the right of mortgage, which can be vested on registered property, and the right of pledge, which can be vested on unregistered property.132

3.2.2 The Dutch mortgage

The right of mortgage, which is dealt with in Chapter 9 of Book 3 of the Dutch Civil Code, functions as a security for the payment of a sum of money. According to Article 3:227(1) DCC, the holder of a right of mortgage can exercise its claim for the payment of that money on the object on which the right of mortgage is vested with priority to other creditors.133 The creation of a right of mortgage follows the rules that apply to the transfer of the object on which the right of mortgage is vested.134 According to Article 3:84(1) DCC, the transfer of any object requires the delivery of that object, based on a valid legal ground and performed by a person who has the right to dispose of the object. Article 3:89(1) DCC further states that the delivery of registered property takes place by a notarial deed followed by the registration of that deed in the land register. The creation of a right of mortgage thus requires an agreement between the mortgagor and the mortgagee in which they agree to create a right of mortgage (i.e. a loan agreement), a notarial deed in which the mortgagor grants the right of mortgage to the mortgagee, and the registration of that deed in the land register.135

3.3 The applications of the principle of accessoriness

3.3.1 Accessoriness of origin

In this paragraph I will discuss whether, and to what extent, the creation of a right of mortgage is dependent on the (possible) existence of a secured claim. To begin with, Article 3:7 DCC

130_{Article 3:8 DCC.}

131_{HJ Snijders and EB Rank-Berenschot, Studiereeks Burgerlijk Recht Deel 2: Goederenrecht (Kluwer 2012) para 52.} 132_{Article 3:227(1) DCC.}

133_{It should be noted that the mortgagor and the debtor of the secured claim might be two different persons. A right of}

mortgage which is vested as a security for the repayment of a claim from another person than the mortgagor is called a ‘derdenhypotheek’. See AIM van Mierlo and AA van Velten, Mr. C. Assers Handleiding tot de Beoefening van het

Nederlands Burgerlijk Recht Deel 3-VI*: Zekerheidsrechten (Kluwer 2010) para 66.

134_{Article 3:98 DCC.}

135_{JHM van Erp and LPW van Vliet, 'Real and Personal Security' (2002) Electronic Journal of Comparative Law 116-117,}

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26 defines an accessorial right as a right that is attached to another right in such a way that it cannot exist without that other right. This means that an accessorial right can only exist if and as long as the right to which it is attached (i.e. the principal right) exists. As a result, the creation of an accessorial right is dependent on the existence of a principal right. The right of mortgage is an important accessorial right according to Dutch law, for it is attached to the claim it secures and is aimed at the performance of that claim. Thus, the creation of a right of mortgage is, in principle, dependent on the existence of a secured claim.136_{However, the rule laid down in}

Article 3:7 DCC is not that strictly enforced. Article 3:231 DCC states that a right of mortgage can not only be vested as a security for an existing claim, but also as a security for a future claim, provided that the claim is sufficiently determinable (in Dutch: voldoende bepaalbaar). A claim is regarded to be sufficiently determinable if that claim can be determined at the moment on which the right of mortgage is exercised.137 In this respect, Article 3:260(1) DCC requires the mortgage deed to contain an indication of the secured claim or an indication of the facts on the basis of which the claim can be determined. The mortgage deed should further state the amount of the claim or, if the amount is not yet fixed, the maximum amount that can be recovered from the right of mortgage.138 The rank of a right of mortgage which is vested as a security for a future claim is determined according to the date of the creation of the right of mortgage, even though no claim exists at that moment.139

In legal practice, two types of mortgage are regularly used as a security for future claims: the credit mortgage (in Dutch: krediethypotheek) and the bank mortgage (in Dutch: bankhypotheek). A credit mortgage is attached to a credit facility and is vested as a security for all the amounts due on the basis of that facility.140_{A bank mortgage, on the other hand, is vested}

as a security for all present and future claims of the creditor, arising from his legal relationship

136_{HJ Snijders and EB Rank-Berenschot, Studiereeks Burgerlijk Recht Deel 2: Goederenrecht (Kluwer 2012) para 47.} 137_{Parliamentary History of Book 3 of the Dutch Civil Code, MvA II, p. 737.}

138_{In this respect it is common practice for the mortgage deed to contain a list of legal relationships from which the secured}

claims could arise, as well as a so called ‘records clause’ (in Dutch: boekenclausule), which states that the accounts of the mortgagee will be decisive as to the determination of the secured claims (notwithstanding proof to the contrary provided by the mortgagor).

139_{HJ Snijders and EB Rank-Berenschot, Studiereeks Burgerlijk Recht Deel 2: Goederenrecht (Kluwer 2012) para 511.} 140_{The maximum amount of the credit facility is dependent on the value of the property on which the right of mortgage is}

vested. The credit facility will be restricted if the value of the property decreases, unless the debtor provides for additional security.

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27 with the debtor.141 The credit mortgage and the bank mortgage exist alongside the fixed mortgage, which is vested as a security for one or more determined claims.142

It is interesting to discuss whether a right of mortgage can be created if the claim it secures is void or voidable. According to Dutch law, a legal act which is void by operation of law does not have the legal consequences that were intended by the parties. Thus, if a void legal act is aimed at the creation of a claim, that claim will not come into existence. Furthermore, that claim will, as a general rule, not be capable of coming into existence in the future. As a result, a right of mortgage which is directed at a void claim will not come into existence.143 An act of law which is voidable, on the other hand, does have the legal consequences that were intended by the parties. Thus, if a voidable legal act is aimed at the creation of a claim, that claim will immediately come into existence. As a result, the right of mortgage that is attached to that claim will come into existence as well. For the creation of the right of mortgage it does not matter that the claim could, with retroactive effect, become invalid in the future. However, if a voidable claim indeed becomes invalid at a later moment in time, the right of mortgage will no longer be directed at a claim and will cease to exist.144

3.3.2 Accessoriness of extinguishment

In this paragraph I will discuss whether a right of mortgage will extinguish after the extinction of the secured claim. As said in the previous paragraph, Article 3:7 DCC states that an accessorial right can only exist if and as long as the right to which it is attached exists. This

141_{AIM van Mierlo and AA van Velten, Mr. C. Assers Handleiding tot de Beoefening van het Nederlands Burgerlijk Recht}

Deel 3-VI*: Zekerheidsrechten (Kluwer 2010) para 47.

142_{HJ Snijders and EB Rank-Berenschot, Studiereeks Burgerlijk Recht Deel 2: Goederenrecht (Kluwer 2012) para 563. The}

fixed mortgage is the basic type of mortgage in the Netherlands.

143_{K. Swinnen, Accessoriteit in het vermogensrecht (Intersentia 2014) para 73. It should be noted that there are three}

exceptions to the rule that a void legal act will never be able to have the legal consequences that were intended by the parties; a void legal act can be remedied by conversion, ratification, or convalescence. Conversion entails that a void legal act will, by operation of law and with retroactive effect, be converted into a valid legal act which is strongly related to the void legal act (see Article 3:42 DCC). However, what consequences a conversion will have for the creation of a right of mortgage that is attached to a void claim is not clear. It is uncertain whether the claim, that will come into existence after the conversion of the void claim, is a claim that the mortgagor and the mortgagee intended to secure. The retroactive effect of a conversion only applies to the converted legal act and not to the intention of the parties. Whether the new claim can be regarded as a claim that the parties intended to secure should thus be answered according to the circumstances of the specific case. Ratification and convalescence, on the other hand, both apply in the situation in which an act of law is initially void due to the non-compliance with a requirement for its creation, but becomes valid at a later moment in time as a result of the compliance with that requirement (see Article 3:58 DCC). Thus, a void claim that is capable of being remedied by ratification or convalescence is in fact a future and determinable claim, as a result of which the right of mortgage that is attached to that claim will come into existence at the moment of its creation.

Could a non-accessory mortgage be easily accommodated in a legal system with an accessory mortgage? : a study on the functioning of the principle of accessoriness with regard to the non-accessory Euromortgage and the ac