Mr. Buck to Mr.
Hay.
United
States Legation,
Tokyo,
Japan, December 29,
1899.
No. 392.]
Sir: I have the honor to acknowledge the
receipt of instruction No. 260, of the 6th ultimo, in reply to my
dispatches Nos. 364 and 365, of the 4th and 6th of October last, in
respect to perpetual leases in foreign settlements in Japan being
confirmed, under the treaty, without other conditions being imposed than
are prescribed in existing leases, stating that, in the confirmation of
such leases, no change in vested rights can be effected by requiring
them to be registered as perpetual superficies, if such would be the
effect, thus approving the position taken by me in that regard.
Concerning the assignment of such leases, however, I am instructed that,
as between private parties for private purposes, citizens of the United
States are subject to the same registration fee or charge as is imposed
upon Japanese subjects, unless the original leases stipulate to the
contrary.
I now have the honor to report that by imperial ordinance (copy inclosed)
the Japanese Government has so amended the law of registration as to
recognize that perpetual leases of property in foreign settlements can
be registered as such without change, instead of as perpetual
superficies as heretofore required, thus substantially though indirectly
conceding my claim in that particular.
In respect to the requirement that a registration tax of 2½ per cent on
value to be paid by the assignee of a perpetual lease in foreign
settlements between private parties, I infer from a conversation which I
have had with the minister of foreign affairs that such registration
[Page 319]
tax is not to be
enforced—conceding my contention that such tax ought not to be required
to be paid in consideration of the stipulations of the leases themselves
and the provisions of Article XVII of the treaty—though it will be
enforced upon registration of mortgages and other liens on such
property.
I have, etc.,
[Inclosure.]
the transfer of land.
Imperial ordinance No. 458 of
December 27, 1899.
[Translated by Dr. L. Lönholm.]
The imperial ordinance No. 329, of the year 1899, is amended as
follows:
Article I. When a superficies (perpetual
lease) created in a foreign settlement is transferred, such transfer
can not be set up against third persons unless it is entered in the
title deed by the chihōchōa of the place where such
land is situated.
If an application according to the foregoing provision has been made
by the parties concerned, or if a notification concerning a
superficies (perpetual lease) has been made, the chihōchō must,
without delay, give notice thereof to the registry office within
whose jurisdiction the land is situated.
When a chihōchō gives notice of the transfer of a superficies
(perpetual lease) a copy of the title deed must be annexed; but in
case of a second or subsequent notice it is sufficient to add the
designation of the land, the names of the parties concerned, their
nationality and domicile, the ground of the transfer of the right,
and the date.
If a right other than that mentioned under paragraph 1, which might
be setup against third persons, has been duly acquired by an alien
or a foreign juridical person before the time fixed in the imperial
ordinance No. 251 of the thirty-second year of Meiji,b but has not been registered before the
said time, it can not be set up against third persons, unless it is
registered up to the 31st of December, 1900.
Article IV. When an application for
registration is made, all facts which can be set up against third
persons must be mentioned in the application, and the documents
necessary to prove such facts must be annexed.
When a registry office has received a notice of the transfer of a
superficies (perpetual lease) it must register it ex officio, and
the same applies when in case of a notification concerning a
superficies (perpetual lease) an alteration in a registration is to
take place.
If when an application for the registration of a right whose subject
is a superficies (perpetual lease) is made, such superficies
(perpetual lease) is not yet registered, such registration must be
made ex officio.
additional provisions.
Entries as to the transfer of a superficies (perpetual lease), made
in a title deed by a chihōchō or a consulate before the taking
effect of this ordinance, have the same effect as entries made by a
chihōchō according to the provisions of this ordinance; but this
does not affect the rights of third persons which have been
registered after the time fixed in imperial ordinance No. 251 of the
thirty-second year of Meiji.
