Dutch Civil Code

Book 8 Transport law and means of transport

V AIR LAW

Title 8.15 The aircraft

Section 8.15.1 Rights in aircraft*)

*) Implementation of the provisions of the Convention on the International Recognition of Rights in Aircraft, signed at Geneva, on 19 June 1948 (Treaty Series 1952, 1986). (See Article XV Geneva Convention 1948).

Article 8:1300 Definitions*)
In the present Title (Title 8.15):
a. ‘Geneva Convention’ means: the Convention on the International Recognition of Rights in Aircraft, signed at Geneva, on 19 June 1948 (Treaty Series 1952, 1986);
b. ‘Contracting State’ means: a State with regard to which the Geneva Convention is in force;
c. ‘convention register’ means: a register kept outside the Netherlands as meant in Article I, paragraph ii, of the Geneva Convention;
d. ‘public registers’ means: the public registers referred to in Section 2 of Title 1 of Book 3 of the Civil Code.

*) The term ‘aircraft’ is defined in Article 8:3a DCC in line with Article XVI of the Geneva Convention 1948.

Article 8:1301 Persons and entities subject to the obligations imposed by the present Section
Where the aircraft belongs to more persons, to a commercial (general) partnership, to a limited partnership or to a legal person, the obligations imposed upon the owner of a recorded aircraft under the present Section (Section 8.15.1) shall rest also with each co-owner, managing partner or director.

Article 8:1302 [repealed on 01-09-2005]

Article 8:1303 Recording of aircraft titles and security interests*)
- 1. A title or interest in an aircraft can be recorded only if:
a. the aircraft is a Dutch aircraft within the meaning of the Aviation Act, and;
b. the aircraft at least has a weight set for this purpose by Order in Council.
- 2. It is not possible to record an aircraft that is already recorded in the public registers, in a convention register or in any foreign register.
- 3. In derogation from paragraph 2, it is possible to record an aircraft that is already recorded in a convention register or in any similar register when the owner has acquired the ownership of the aircraft by allocation after a sale in execution (foreclosure) which took place in the Netherlands.
- 4. The owner of the aircraft shall request for a recording. In doing so, he must submit for registration a statement, signed by him, specifying that to his best knowledge the aircraft is suitable to be recorded. This statement requires the approval of the court.
- 5. Where the requirements of the previous paragraphs of the present Article are not met, a recording in the public register has no effect.
- 6. When making the request for a recording, the applicant shall elect a domicile [give an address for service of process] within the Netherlands. This domicile is to be mentioned in the request for recording and may be replaced by a different domicile located in the Netherlands.

*) See Article I, Article II and Article III of the Geneva Convention 1948.

Article 8:1304 Deletion from the public registers*)
- 1. A recording shall be deleted only:
a. upon the request of the person who is listed in the public registers as the owner;
b. upon a declaration of the owner or ex officio:
1°. if the aircraft has ceased to exist as such;
2°. if no tidings have been received from the aircraft for two months after its last departure and this is not imputable to a general failure in communication;
3°. if the aircraft not or no longer has the status of Dutch aircraft;
4°. if the aircraft has been recorded in a Contracting State after a sale in execution (foreclosure) which took place in conformity with the Geneva Convention in another Contracting State than the Netherlands.
- 2. In the events mentioned in paragraph 1, under (b), the owner of the aircraft is obliged to make the declaration within three months after the reason for deletion occurred.
- 3. When there are recordings or provisional entries in respect of the aircraft on behalf of third persons, a deletion shall only take place if none of these third persons opposes to such deletion, except in the event mentioned in paragraph 1, under (b)(4°).
- 4. A deletion is made only with authorisation of the court granted upon the request of either party.

*) See Article II(2) and Article IX of the Geneva Convention 1948.

Article 8:1305 Real property rights in recorded aircraft*)
The only real property rights of which a recorded aircraft may be the object, are the right of ownership, a mortgage and the real property rights mentioned in Articles 8:1308 and 8:1309.

*) See Article I(1) of the Geneva Convention 1948.

Article 8:1306 Registered property*)
- 1. An aircraft recorded in the public registers is considered as registered property.
- 2. In applying Article 301 of Book 3 of the Civil Code in respect of deeds (instruments) that are drawn up on the basis of Article 89, paragraph 1 and 3, of Book 3 of the Civil Code in order to transfer (deliver) such aircraft, the judicial decision of a Dutch court referred to in the first mentioned Article cannot be recorded as long as it has not become final and binding (res judicata).

*) See Articles I(1, last sentence)(2), II(2) and VII(1) of the Geneva Convention 1948.

Article 8:1307 Acquisitive prescription*)
A bona fide possessor (possessor acting in good faith) shall acquire the right of ownership of a recorded aircraft or, where this is applicable, a mortgage thereon after a continuous uninterrupted possession of five year.

*) See Articles I(1, last sentence)(2), II(2) and VII(1) of the Geneva Convention 1948.

Article 8:1308 Real property right existing of a debt-claim for transfer of ownership*)
A real property right may be established on a recorded aircraft, existing of a right (debt-claim) of the holder of the aircraft to acquire the ownership thereof after payment of a specific amount or after the fulfilment of any other condition, which right is derived from a sale agreement concluded already or to be concluded in future by the holder of the aircraft).

*) See Article I(1)(b) of the Geneva Convention 1948. Where the holder of a recorded aircraft has entered into a sale agreement or may enter into such agreement under a purchase option, pursuant to which he has or may obtain a right (debt-claim) to acquire the ownership of that aircraft after payment of a specific amount or after the fulfilment of any other condition, this right (debt-claim) may be recorded in the public register as a special real property right established on that recorded aircraft. In doing so, the debt-claim itself obtains real effect.

Article 8:1309 Real property right existing of a right of use (debt-claim) derived from a lease agreement*)
- 1. A real property right may be established on a recorded aircraft, existing of the right (debt-claim) of the holder to make use of the aircraft pursuant to a lease agreement concluded for at least six months). The notarial deed drawn up for the purpose of establishing such real property right shall specify clearly which aircraft is to be encumbered with that right.
- 2. The lease agreement shall be considered as legal basis for the establishment of the involved real property right. If the lease agreement is incorporated in a notarial deed which meets the requirements for a deed of transfer, then this notarial deed shall be considered as a deed of transfer**).
- 3. Article 226 of Book 7 of the Civil Code does not apply to a lease agreement with regard to registered aircraft.

*) See Article I(1)(c) of the Geneva Convention 1948. Where the holder of a recorded aircraft has entered into a lease agreement on the basis of which he is entitled to use the aircraft for six months or more, this right of use may be recorded in the public register as a special real property right established on that recorded aircraft. In doing so, the debt-claim itself obtains real effect.
**) The deed of transfer itself must always be a notarial deed, but in addition it must contain specific elements and stipulations.

Article 8:1310 Mortgage on a specified aircraft*)
Without prejudice to Article 260, paragraph 1, of Book 3 of the Civil Code, the notarial deed drawn up for the purpose of establishing a mortgage on a recorded aircraft shall specify clearly which aircraft is to be encumbered with the mortgage.

*) See Article I(1)(d) of the Geneva Convention 1948.

Article 8:1311 Ranking order of a mortgage*)
The debt-claim secured by mortgage is ranked behind the debt-claims mentioned in Articles 8:1315 and 8:1317, but above all other debt-claims to which a privilege is attached pursuant to this Code or any other legislation.

*) See Article I(2) and Article V of the Geneva Convention 1948.

Article 8:1312 Mortgage to secure a debt-claim on interest*)
If the secured debt-claim bears interest, the mortgage shall serve also as security (collateral) for the interest on the principal sum as far as this interest has fallen due (has accrued) during the three years prior to the recovery and foreclosure (execution proceedings) or during the period of recovery and foreclosure. Article 263 of Book 3 of the Civil Code is not applicable.

*) See Article V of the Geneva Convention 1948.

Article 8:1313 Mortgage on a share in a recorded aircraft
Article 177 of Book 3 of the Civil Code does not apply to a mortgage on a share in a recorded aircraft; the mortgage remains existing (and in force) after a transfer, alienation or apportionment of the aircraft.

Article 8:1314 Inapplicability of certain statutory provisions*)
Articles 234, 261, 264, 265, 266 and 268 up to and including 273 of Book 3 of the Civil Code and Articles 544 up to and including 548 of the Code of Civil Procedure do not apply to a mortgage on recorded aircraft.

*) See Article VI and Article VII of the Geneva Convention 1948.

Section 8.15.2 Privileges on aircraft

Article 8:1315 Recovery by foreclosure (sale in execution)*)
In the event of a recovery by foreclosure (sale in execution) of an aircraft that is recorded in the public registers or in a convention register, the costs of foreclosure, the costs of guarding the aircraft during the foreclosure proceedings, the costs made after the seizure (attachment) to preserve the aircraft, including the costs of repairs which are essential for its preservation, all other costs made during the foreclosure in the interest of the creditors and the costs of the judicial ranking and distribution of proceeds amongst the creditors are paid from the sale proceeds prior to and above all other debt-claims to which a privilege is attached pursuant to this Code or any other legislation.

*) See Article VII(1) and (6) of the Geneva Convention 1948.

Article 8:1316 Right of retention*)
Article 292 of Book 3 of the Civil Code and Article 60, paragraph 2, first sentence, and paragraph 3 and 4, and Article 299b, paragraph 3-5 of the Bankruptcy Act do not apply to aircraft recorded in the public registers or in a convention register.

*) See Articles I(1, last sentence)(2), II(2) and VII(1) of the Geneva Convention 1948.

Article 8:1317 Privileged debt-claims in respect of salvage or extraordinary preservation costs*)
- 1. Debt-claims in respect of:
(a) compensation due for salvage of the aircraft, or;
(b) extraordinary expenses indispensable for the preservation of the aircraft;
are privileged with regard to [the sale proceeds of] an aircraft that was recorded in the public registers or in a convention register at the moment on which these debt-claims arose, and take as such priority over all other debt-claims for which this Code or any other legislation, with the exception of Article 8:1315, attaches a privilege (charge) to that aircraft.
- 2. Paragraph 1 only applies if the operations of salvation or preservation have ended in the Netherlands or in a Contracting State under whose legislation a privilege (charge) with real effect is granted in respect of debt-claims arising in connection with these operations.
- 3. Article 284 of Book 3 is not applicable.

*) See Article IV(1) Geneva Convention 1948.

Article 8:1318 Ranking order of privileged debt-claims*)
The privileged debt-claims referred to in Article 8:1317 rank amongst each other in the inverse order of the dates on which the events took place in connexion with which they have arisen.

*) See Article IV(2) of the Geneva Convention 1948.

Article 8:1319 Real effect
A creditor who has obtained a privilege under Article 8:1317 upholds his privilege on (in) the aircraft irrespective of the question in whose hands (under whose control) that aircraft may be.

*) See Article IV of the Geneva Convention 1948.

Article 8:1320 Validity duration of privileges*)
- 1. The privileges granted on an aircraft pursuant to the present Section (Section 8.15.2) cease to exist on expiration of three months, unless within this period:
- the privilege is recorded in the public registers or the convention register in which the aircraft is recorded, and;
- the amount of the debt-claim has been determined by agreement, or legal actions have been initiated in court for the judicial recognition of the privilege and of the amount thereof.
- 2. In case of a foreclosure (sale in execution) the privileges cease to exist as well at the moment on which the official record of distribution is closed.
- 3. The period referred to in paragraph 1 starts to run as of the day following the one on which the operations of salvation or preservation, in connexion with which the debt-claim has arisen, have ended.
- 4. Privileges as referred to in Article 8:1317 may be recorded in the public registers. Article 24, paragraph 1, of Book 3 of the Civil Code is not applicable.

*) See Article IV(3)(4) of the Geneva Convention 1948.

Section 8.15.3 Final provision

Article 8:1321 Additional regulation by Order in Council
Where the matters, regulated in the present Title (Title 8.15), require further regulation in the interest of a proper implementation of the law, this is done by or pursuant to Order in Council, without prejudice to the power to provide such regulations under or pursuant to the Land Registry Act (‘Kadasterwet)’).

[Articles 8:1322 – 8:1339 reserved for future legislation]