The danger of the unknown remedies registry

Did you do enter the appeal summons in the remedies registry within eight days of service?

Avoid ever finding yourself in the situation of having to answer the above question doubtfully or with a hard "no. It can have fatal consequences.

In the article below, we explain what the remedies register is. What is the reason for the existence of this register, in which cases a remedy must be registered and what is the sanction in case this is not done.

The remedies registry, what is it?

The name of the register says it all. The appeals register is a register that keeps track of whether an appeal has been lodged against a particular judgment. Pursuant to article 433 Rv, a party who has lodged an opposition, appeal or cassation may register the appeal lodged with the registry of the court that pronounced the contested judgment. Each court thus keeps such a register.

The idea behind this register is that the court clerk should be able to check whether a judgment is res judicata. Think of judgments that say something about the legal status of an immovable property or other registry property and this judgment has been or can be registered in the public records.

If the clerk could not verify whether the judgment is res judicata, he could also not issue a clerk's certificate. For regular court judgments, the consequence is that they are not enforceable for the time being. For provisionally enforceable judgments, the importance lies in providing security to prove the irrevocability of the judgment by means of the clerk's certificate.

In what situations is mandatory enrollment?

Especially in real estate practice, the register of remedies plays a major role. This is because information about the legal status of registered property must be recorded in the public registers. For example, we find in the public registers who owns a registered property and whether it has been attached or mortgaged.

However, it can also be the case that a court ruling says something about the legal status of a registered property and the party most affected has had this ruling recorded in the public registers. If an appeal is lodged against such a judgment, compulsory registration of that appeal may be an issue.

Below is a list (not exhaustive) of articles of law in which this mandatory registration applies.

Article 3:301 BW contains the obligation, if an appeal is lodged against a judgment that replaces a deed intended for the delivery of a registered property, to register this appeal in the register of legal remedies. More depth on Article 3:301 BW can be read in the related article: "Beware of Article 3:301(2) BW as a procedural assassin!"

Also in the case of an appeal against a judgment pronouncing a declaration of a right to a registered property as referred to in Article 3:27 paragraph 2 of the Civil Code, this appeal must be registered. Or if it concerns an order for deletion as referred to in Article 3:29 paragraph 3 of the Civil Code and also in the case of boundary fixing by court order as referred to in Article 5:32 paragraph 4 of the Civil Code. In all these cases the ruling says something about the legal status of the registered property and this ruling will be registered in the public registers. Because this possibility also exists if a judgment is not yet final (has not yet become res judicata), it is important that the Registrar can check at the request of any person whether an appeal against this judgment has been registered. As explained above. 

Failure to register a remedy in the Remedies Register in such cases results in a rock-hard inadmissibility sanction and thus has far-reaching consequences. Incidentally, the appellate court must also examine ex officio whether this registration requirement has been met.

The remedies registry and legal practice

What is striking, however, is that in (legal) practice it is little known that in certain cases it is mandatory to register the remedy that has been filed. This unfamiliarity already follows very nicely from a very recent Supreme Court ruling of April 23, 2021, but also from our own empirical research.

It again follows from the foregoing judgment that the court before which the appeal is lodged must, of its own motion, check whether the appeal has been registered. If the court fails to do so (as was the Court of Appeal in this case) and nothing is said about this in the proceedings and the judgment, the Supreme Court will still have to assess whether this obligation was also met in the second instance. In this matter, this was not done and the party in question (but presumably also the lawyer involved) got the lid rock hard on its nose. 

Legal remedies registry: a lawyers paradise?

attorneys should be mindful that if a judgment "says something" about the condition of a registry property, it may be necessary to register an appeal filed. And that - if forgotten - this can and will lead to inadmissibility.

If you have serious doubts about whether it is necessary, our advice is: just do it. After all, it can do no harm. After all, Article 433 Rv states that any appeal can and may be registered.

Do not forget this registration requirement and also always check whether the lawyer-defendant has done so in the case in question. The court should check this ex officio, but the empirical research does show, that not only attorneys, but also the judicial authorities themselves are not infrequently unfamiliar with the remedies register.