Maakaaren uudistukset kiinteistöjen vakuuskäytön ja kirjaamisen kannalta
Avainsanat:
maakaari, panttaus, panttaamattomuussitoumus, sale and lease back, erityinen oikeusAbstrakti
Code of Real Estate amendments from a collateral and registration point of view
Amendments to the Finnish Code of Real Estate entered into force on 1 November 2024. The amendments make it possible to register a negative pledge commitment and ownership of a leasing company when the leased asset has been sold to the leasing company and subsequently leased back to the real estate owner (i.e. a sale and lease back arrangement). Previously, it has not been possible to register a negative pledge or a leasing company’s ownership if the underlying leasing has been executed as a sale and lease back. These amendments, and how they should be interpreted, are analysed in the article.
The possibility of registering a negative pledge is important for the third party effects of such a commitment. Following the amendments to the Code, the negative pledge can be registered if it is given by a business, it limits the real estate owner’s right to use the real estate as a collateral, and if it is related to a specific debt. When the negative pledge is registered, a third party cannot get a binding collateral right to the real estate. However, one of the findings in the article is that not all negative pledges can be registered. The third party effects of an unregistered negative pledge commitment remain unclear also after the amendments to the Code.
The possibility of registering the leasing company’s ownership right also in sale and lease back situations is helpful for financing since it reduces the legal risks related to such leasing. However, certain legal risks still remain in sale and lease back transactions. For instance, the risk of the transaction being interpreted as a non-binding collateral transfer or the risk that the leased asset becomes a part of the real estate can still be relevant.
