Legal Aspects of Alien Acquisition of Real Property

211 Pages·1980·4.85 MB·English

by  Dennis Campbell

LEGAL ASPECTS OF ALIEN ACQUISITION
OF REAL PROPERTY
LEGAL ASPECTS OF
ALIEN ACQUISITION OF
REAL PROPERTY
Edited by
Prof. Dennis Campbell
Director, Center for International Legal Studies,
Salzburg, Austria, and Director of European Programs,
University of the Pacific, McGeorge School of Law
1980
SPRINGER-SCIENCE+BUSINESS MEDIA, B.V.
Library of Conaress Cataloiina in Pulllicadon Data
Main entry under title:
Legal aspects of alien acquisition of read property.
lncludes bibliographical reference and index.
1. Real property-foreign ownership. 2 Alien property.
3. lnvestments, foreign-law and legislation 1. Campbell, Dennis.
K728.143 346.04'32 80-36897
ISBN 978-94-017-4423-2 ISBN 978-94-017-4421-8 (eBook)
DOI 10.1007/978-94-017-4421-8
~ 1980 Springer Science+Business Media Dordrecht
Original1y published by Kluwer. Deventer. The Netherlands in 1980
Softcover reprint ofthe hardcover lst edition 1980
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zation incorporated under the laws of the State of California and with headquar
ters in Salzburg, Austria. The Center is devoted to the promotion of
international legal education, research, information exchange and understanding.
It coordinates and supervises various law seminars in Europe and sponsors
research in areas of Comparative and International Law.
The Center is assisted by a Board of Advisors consisting of Mr. Harry Arkin,
Attorney-at-Law, Denver, Colorado; Prof. Rona Aybay, Ankara University,
Ankara, Turkey; Prof. R. Bernhardt, Director, Max Planck Institute, Heidelberg,
Germany; Prof. Frank Ellsworth, Faculty of Law, University of Chicago, Chic
ago, Illinois; Mr. Arthur Glover, Director of Programs, Seven Springs Center,
Mount Kisco, New York; Prof. H. G. Koppensteiner, Faculty of Law, Salzburg
University, Salzburg, Austria; Judge Erich Korf, District Court of Siegburg,
Germany; Prof. Herbert Liebesny, Faculty of Law, George Washington Univer
sity, Washington, D.C.; Prof. Ferenc Madl, Faculty of Law, Eotvos Lorand
University, Budapest, Hungary; Justice Gustaf Petren, Supreme Administrative
Court, Stockholm, Sweden; Dr. Peter Prettenhofer, Attorney-at-Law, Vienna,
Austria; Prof. S. F. Richter, Austro-American Institute of Education, Vienna,
Austria; Mr. Robert Salkin, Attorney-at-Law, Los Angeles, California, and Mr.
Bruce Zagaris, Attorney-at-Law, Washington, D.C.
Views expressed in material appearing herein are those of the authors and do
not necessarily reflect the policies or opinions of the Center for International
Legal Studies.
Inquiries concerning the activities of the Center should be directed to the Center
for International Legal Studies, Box 59, A5033 Salzburg, Austria.
THE AUTHORS
Anthony E. Alexander: partner in the finn of Herbert Oppenheimer, Nathan &
Vandyk, London, England; M.A. Cantab., Downing College, Cambridge Univer
sity; admitted as solicitor.
Karl Arnold: partner in the finn of Pestalozzi & Gmuer, Zurich, Switzerland;
doctor of jurisprudence, University of Fribourg; diplome de droit compare,
University of Luxembourg; member, Zurich Bar Association and International
Bar Association.
Wahe H. Balekjian: Head, Department of European Law, University of Glas
gow; visiting professor, University of SqJzburg; doctor of jurisprudence, Univer
sity of Vienna; Dr. rer. pol., University of Vienna; Ph.D., University of
Manchester.
Stephane Bertouille: member of the finn of Puelinckx, DeScheemaecker & Dil
lemans, Brussels, Belgium; doctor of jurisprudence, University of Louvain;
LL.M., New York University.
Peter von Borch: partner in the finn of Ott, Weiss, Eschenlohr & Partner,
Munich, Germany; doctor of jurisprudence, University of Munich; LL.M.,
Harvard University.
Dennis Campbell: Director, Center for International Legal Studies; director, Eur
opean Programs, University of the Pacific, McGeorge School of Law; doctor of
jurisprudence, McGeorge School of Law; graduate diploma in comparative law,
Stockholm University; member, Iowa State Bar, American Bar Association, and
International Bar Association; associate member, New York State Bar.
Pierre Fontaneau: barrister at the Appeal Court of Paris; professor and member,
Faculty of Law, University of Nice; doctor of jurisprudence, University of Algiers;
professeur agrege.
J. Kors; Jensen: partner in the firm ofKenig, Homann, Homann, Korse Jensen
& Steen Hansen, Copenhagen, Denmark; legal studies at University of Copen
hagen; assistant professor, University of Copenhagen; member, Copenhagen and
Danish Law Societies and International Bar Association.
A. P. van Lidth de Jeude: partner in the finn of Loeff & Vander Ploeg, Amster
dam, The Netherlands; legal studies at the State University of Utrecht; ap
pointed notary in Amsterdam.
Carlos Loring: partner in the finn of J. & A. Garrigues, Madrid, Spain; legal
studies at University of Madrid and University College of Dublin; member,
Madrid Bar Association.
Goran Ohlson: member of the firm of Mannheimer & Zetterlof, Gothenburg,
Sweden; LL.B., University of U ppsala; graduate of the Scandinavian Institute of
Maritime Law.
Robert Salkin: staff counsel, California State Department of Corporations;
doctor of jurisprudence, Southwestern University School of Law; M.B.A.,
University of California at Los Angeles; member, California State Bar and
American Bar Association.
Eugen Salpius: member of the firm of Dr. Fritz Janetschek, Salzburg, Austria;
doctor of jurisprudence, University of Vienna; studies at Moscow State University
and The Hague; member of the Austrian Bar.
DavidS. Tenzer: member of the firm of Rosen, Wachtell & Gilbert, Los Angeles,
California; doctor of jurisprudence, University of California at Davis; M.A.,
Occidental College; candidate, certificate in advanced international legal studies,
McGeorge School of Law; member, California State Bar and American Bar
Association.
Max Walter: partner in the firm of Pestalozzi & Gmuer, Zurich, Switzerland;
doctor of jurisprudence, University of Zurich; member, Zurich Bar Association.
Joshua Weisman: professor, Faculty of Law, The Hebrew University of Jeru
salem; doctor of jurisprudence, The Hebrew University of Jerusalem; visiting
professor, New York University and University of Southern California.
Preface
The concept of the nation-state has as an essential element the control of
territory, legal and political authority over the acquisition, ownership, use and
disposition of land. The rapid increase during the 1970s in the pace of foreign
investment1-with the acquisition of real property as a centerpiece-has stirred
new concern for the ability and disability of aliens to invest in and acquire title
to the physical territory of a given state. With a variety of factors2 now stimulating
foreign investment in land, increased attention has been given in many countries3
to the role of the state in controlling, inhibiting or prohibiting investment in
real property by aliens.
English law long ago established that the alien would be subject to significant
disabilities in connection with the ownership of land.4 The imposition of similar
restrictions on aliens is found in the early law of most nation-states. 5 Such
disabilities have their roots in the feudal period, and it was not until the eighteenth
century that the countries of Continental Europe abandoned the absolute
prohibition on succession to real property by aliens.6 The prohibition was
replaced by a tax imposed on aliens who withdrew the property of the state
of which the decedent was a citizen. Common Law rules restricting alien
succession developed in the thirteenth century. By the twentieth century, how
ever, in both the Civil and Common Law jurisdictions, municipal legislation
and international treaties based on reciprocity had removed many of the barriers
to alien succession to and ownership of real property.
It probably was inevitable that the increased opportunity and desire for
investment in land by aliens brought by current economic and political con
ditions would carry with them renewed discussion of the means by which those
opportunities could be limited. It is the coincidence of these events which makes
this handbook timely.
The Introduction sets out the historical development of restrictions on alien
acquisition of real property, the rationale which underlie restrictive policies, and
the means by which states have cooperated to facilitate foreign investment in
land. Thereafter, each coauthor provides a discussion of the most important
statures and regulations in his respective country dealing with the acquisition
by aliens ofreal property. Each of these chapters is offered, not as an exhaustive
and comprehensive analysis of the relevant law in the respective countries, but
rather only as a survey of and introduction to the legal setting in each country.
Each chapter is prepared under the terms of laws and regulations prevailing in
the respective jurisdictions as of February 1980, an important caveat to bear in
mind in considering a topic which has been and continues to be subject to
frequent legislative activity.
Dennis Campbell
Salzburg, Austria
PREFACE
Notes
l. According to the United States Department of Commerce, Survey of Current Business (1970-
1975), United States direct investment abroad increased from 11 billion dollars in 1950 to
133 billion dollars in 1975. In a preliminary report in March 1980, the United States Department
of Commerce indicated that, in 1979, direct foreign investment in American companies more than
doubled to 12.5 billion dollars, and the number of direct foreign investments in American com
panies increased by more than 300 per cent to in excess of 1,000.
2. Tax advantages, the flow of petro-dollars, mobility of labor, and the opportunity for sub
stantial profit are among the factors which have contributed to the growing pace of alien acquisition
of real property. See Morrison and Krause, State and Federal Land Regulation of Alien and
Corporate Land Ownership and Farm Operation, United States Department of Agriculture, Report
Number 284 (1975), p. 1, 2.
3. See, for example, Weisman, 'Restricting Alien Land Acquisition', American Journal of Com
parative Law (1980), Volume 28, p. 39, 41. Argentina, Australia, Austria, Barbados, Bermuda, Brazil,
Canada, Denmark, Egypt, France, West Germany, Holland, India, Ireland, Jamaica, Japan, Jordan,
Liberia, Mexico, New Zealand, Nigeria, Norway, Sweden, Switzerland, Trinidad and Tobago, and
the United States are those indicated with laws now prohibiting or limiting landholding by aliens.
4. See The Case of Collingwood and Pace in the Exchequer Chamber; the Lord Chief Baron Hale's
Argument, 1 Ventris 413, 86 Eng. Rep. 262 (1662); for other, more current examples, see Morrison
and Krause, supra n. 2, p. 13.
5. See Boyd, 'Treaties Governing the Succession to Real Property by Aliens', Michigan Law Review
(1953), Volume 51, p. 1001, 1002-1005.
6. Id.
Table of Contents
ALIEN ACQUISITION OF REAL PROPERTY:
A PRACTITIONER'S PERSPECTIVE
Dennis Campbell and DavidS. Tenzer 1
AUSTRIA
Eugen Sa/pius 21
BELGIUM
Stephane Bertouille 39
DENMARK
J. KorsrJ Jensen 51
ENGLAND
Anthony E. Alexander 63
FEDERAL REPUBLIC OF GERMANY
Peter von Borch 77
FRANCE
Pierre Fontaneau 91
ISRAEL
Joshua Weisman 97
THE NETHERLANDS
A. P. van Lidth de Jeude 103
SPAIN
Carlos Loring 111
SWEDEN
Goran Ohlson 127