Also to the inclosed copy of a note from the Japanese minister for
foreign affairs, of date the 10th instant, addressed to the British
minister
[Page 340]
in answer to formal
representations made by the British chargé d’affaires ad interim, and
furnished me as a reply also to similar representations informally made
by me upon the same subject.
In view of my interpretation of the above-transcribed paragraph, and in
view of the fact that doubt on the part of the property holders whether
they should be required to pay the 2½ per cent registration fee on
registration of buildings, few if any registrations of buildings were
being made; and the time being short in which compliance with the
ordinance respecting registration would afford protection to property
rights, I was on the point, October 1, of preparing a note to the
minister for foreign affairs asking an extension of time for
registration beyond December 31 of this year, when, incidentally
discussing the subject at the foreign office, I was informed than an
extension of six months was to be granted in which to perfect
registration. Hence I made no formal request.
It now appears from the answer of the minister for foreign affairs that
it has been discovered that no right of registration is to be lost and
no property right is to be jeopardized in consequence of failure to
register property on or before the 31st instant, and that no necessity
exists for the extension of the time for registration as provided in
ordinance No. 458. The reasoning seems to be somewhat involved and I am
not entirely convinced that the conclusion reached is not a questionable
one. While the Japanese Government’s own interpretation of their
ordinances is supposed to govern, it is difficult in this instance to
reconcile the text of the paragraph of ordinance 458 in question with
the interpretation given by the minister for foreign affairs, and it
remains to be seen whether the Japanese courts will give effect to the
views of the Japanese Government as expressed in his excellency’s
note.
In this connection I am glad to be able to say that I am informed at the
foreign office that a bill will be introduced and doubtless passed by
the diet very soon to be convened providing for the registration of
perpetual leases as such, leaving out the word “superficies,” as now
provided for by ordinance No. 458, and thus eliminating any question as
to change of form or character of leases in perpetuity by
registration.
This, I understand, could have been done by ordinance No. 458, and would
now be done by ordinance but for the reason that there is no authority
to change a law by ordinance. Perpetual leases not being known to the
law, the ordinance could only couple the term “superficies “with
“perpetual lease,” the latter in brackets, which at the time was
supposed to give recognition of such leases and protection of all rights
otherwise guaranteed by treaty, but which has not proved satisfactory to
leaseholders.
I understand that the proposed bill is also to provide for registration
of buildings constructed prior to the date of the operation of the new
treaties on property held under perpetual leases and not since
transferred without payment of the 2½ per cent on value now chargeable
under the registration law. This will afford great relief, as heretofore
registration of such leases at the consulate made no reference to
buildings, since under foreign jurisdiction the buildings were supposed
to be included with the land in any transfer without special mention,
while by Japanese law they are not so included as a matter of course,
and buildings must be registered separately.
[Inclosure.—Translation.]
Mr. Takaaki,
Japanese minister for foreign affairs, to Sir Claude Macdonald, British
minister.
December 10,
1900.
No. 40.]
Sir: I have the honor to acknowledge the
receipt of the note No. 52 of October 4 of this year, addressed by
Mr. Whitehead, Her Majesty’s chargé d’affaires, to my predecessor,
Viscount Aoki, in which he states that the imperial ordinance No.
458 of 1899 provides in the first clause of Article I that the
transfer of a perpetual lease established in the former foreign
settlements may be set up against third persons by having the fact
indorsed on the title deed by the chihō-chō, but that the last
paragraph of the said article provides that “if a right in an
immovable other than that mentioned under paragraph 1, which might
be set up against third persons, has been duly acquired by an alien
or a foreign juridical person before the time fixed in imperial
ordinance No. 251 of the thirty-second year of Meiji (1899), but has
not been registered before the said time, it can not be set up
against third persons unless it is registered before the 31st of
December, 1900.”
The British subjects who own perpetual leaseholds in the former
foreign settlements, it appears, not only know that Her Majesty’s
Government and other treaty powers have objections to the separation
of land and houses as regards immovables therein, but as they would
have to pay no small registration fee if they registered their
houses separately from their lands, they have hitherto hesitated to
obtain registration of the immovables owned by them within the
settlements. Mr. Whitehead is therefore desirous that the Imperial
Government should, if possible, until the question of perpetual
leases is settled, extend the limit of time for registration, which
is fixed by the above imperial ordinance as the 31st of December of
this year.
The Imperial Government have given careful consideration to the
question of whether or not they ought to extend the limit of time
fixed by the above imperial ordinance, as requested by Mr.
Whitehead, and they have unavoidably been compelled to come to the
conclusion that there is no reason for extending it. I have
accordingly the honor to inform you that their reasons are as
follows:
The rights determined by the last clause of Article I of the said
imperial ordinance, which are able to be set up against third
persons if registration is effected by the 31st of December of this
year, are special rights of priority pledges, mortgages, and leases,
etc., established on the perpetual leases, as well as rights of
ownership, special rights of priority, pledges, and leases, etc., of
buildings such as were acquired by foreigners or foreign juridical
persons prior to the date fixed by the imperial ordinance No. 251 of
1899—that is to say, the time of the coming into operation of the
new treaties— and are limited to such as can be set up against third
parties in accordance with the laws governing the act of
establishment of the said rights. In other words, rights in
immovables acquired by foreigners or foreign juridical persons prior
to the coming into operation of the new treaties (with the exception
of perpetual lease) which could be set up against third persons
without being registered in accordance with the laws governing the
act of their acquirement could up to the time of the operation of
the treaties be set up against third persons without registration
being necessary; yet, as from the time of the coming into operation
of the treaties they came under the control of the laws of Japan,
they could not, according to article 177 of the civil code, without
the special regulations of this imperial ordinance, be set up
against third persons unless registered on the day of the coming
into operation of the treaties. (Translator’s note: Article 177
reads as follows: “Where an immovable is concerned the acquisition
or loss or any change in the nature of a right in rem can not be set
up against, a third person unless registration has taken place in
accordance with the provisions of the law of registration.”) The
last clause of Article I referred to therefore extended the limit of
time during which the preferential order of rights in immovables
duly acquired by foreigners or foreign juridical persons (with the
exception of perpetual lease) prior to the operation of the new
treaties should follow the order of the act of their establishment
and not the order of registration till the 31st of December this
year.
Such being the meaning of the last clause of Article I of that
imperial ordinance, the limit of time for the registration of rights
acquired by foreigners prior to the operation of the new treaties is
not absolutely determined by the last day of this year, and rights
in immovables acquired by foreigners prior to the operation of the
new treaties may be registered at any time. But if they are
registered in or after January next year the order of the
preferential rights in them will follow the order of registration
and not the order of the acts establishing them.
I am of opinion that, in deciding whether proper reasons exist for
again extending the time during which preferential rights could be
contended for according to the
[Page 342]
order of the act establishing them, and not
according to the order of registration, it is necessary to examine
the difference or similarity of the protection which they enjoy by a
comparison of the rights established prior to the operation of the
treaties and the rights subsequently established.
It goes without saying that persons who have acquired, subsequent to
the operation of the new treaties, rights, such as mortgages
established upon perpetual leases within the former foreign
settlements, as well as ownership of buildings erected on such
properties, and other rights in the buildings, such as mortgages,
leases, etc., can not set them up against third persons without
registering them. That is, these rights from the first are in order
preferential according to the order of registration, and do not
follow the order of their establishment; and leaving for the time
out of the question the propriety or otherwise of the Imperial
Government having applied the term “superficies” to perpetual leases
within the foreign settlements, and of the contention of the
Imperial Government that the guaranty in the fourth clause of
Article XVIII of the Anglo-Japanese treaty simply refers to land on
perpetual lease, and does not extend to houses erected thereon,
without reference to the propriety or otherwise of these things, the
acquirement or loss and change in the nature of rights in rem with
regard to immovables after the operation of the treaties, with the
exception of the case of the transfer of perpetual leases, can for
the first time be set up against third parties by registration; and
the Imperial Government has so far neither determined nor seen
reason to determine special regulations providing that the order of
preference with regard to these rights should follow the order of
establishment and not the order of registration.
In a word, if we compare the rights in immovables acquired prior to
the operation of the new treaties and the rights subsequently
acquired, and the different degree of protection they enjoy, we see
that the former have the privilege up till the 31st day of December
this year of contending for preference in accordance with the order
of their establishment, while the latter have not from the first
enjoyed this privilege, but have from the date of the establishment
of such rights at once obtained order of preference in accordance
with the order of registration.
If we inquire into the origin of the time specified in the last
clause of Article I of the imperial ordinance No. 458 of 1899; that
is to say, of the period of grace during which preference can be
contended for in accordance with the order of the establishment of
the rights, we find in the first article of imperial ordinance No.
329 of July 6, 1899, which was amended by that imperial ordinance,
“If a right in an immovable which might be set up against third
persons has been duly acquired by an alien or a foreign juridical
person before the time fixed in imperial ordinance No. 251 of the
thirty-second of Meiji (1899), but has not been registered before
the said time, it can not be set up against third persons unless it
is registered within one year from such time.” However, according to
the text of the title deeds by which perpetual leases have been
established, in cases of transfer of perpetual leases they can be
set up against third persons if the fact has been indorsed on the
title deed by the chihōchō having jurisdiction over the place where
the land is situated. Imperial ordinance No. 458, therefore omitted
from the provisions of the first article quoted above the case of
the transfer of a perpetual lease, and so provided that rights other
than rights of perpetual lease acquired by foreigners in immovables
which had not undergone registration prior to the date of the
operation of the new treaties could not, unless registration was
effected within a fixed period of grace, be set up against third
persons; and it extended such period of grace, which, according to
the previous imperial ordinance was one year, altering it to reach
to the 31st of December this year.
The questions of the propriety or otherwise of the Imperial
Government applying the term “superficies” (perpetual lease) to
perpetual leases, and of whether or no any conditions other than
those written on the title deeds should or should not under the
fourth clause of Article XVIII be attached to houses erected on
properties held on perpetual lease, have not yet been settled; but I
do not consider that there is any reason on this account to extend
the time during which rights acquired by foreigners in immovables,
with the exception of perpetual leases, prior to the operation of
the new treaties, can be claimed in accordance with the order of
their establishment. For rights acquired by foreigners in
immovables, excepting perpetual leases, after the coming into
operation of the treaties have preference in order in accordance
with the order of registration, notwithstanding that the above two
questions have not yet been settled. That is to say, rights acquired
prior to the operation, of the treaties as compared with rights
acquired subsequent to the operation of the treaties enjoy special
privileges, as a result of the above imperial ordinance, up to
December 31 of this year, but they lose these privileges on the 1st
of January next year, and thus for the first time occupy an equal
position with rights acquired after the operation of
[Page 343]
the treaties; and I therefore see no
reason that the nonextension of this time should, as Mr. Whitehead
fears in his note of October 4, cause very great inconvenience to
British subjects holding perpetual leases, or occasion loss to
them.
The Imperial Government therefore regret to be unable to consider the
question of extension of the above period, in spite of Her Majesty’s
chargé d’affaires’ request to that effect. Again, the construction
placed upon the last clause of the first paragraph of imperial
ordinance No. 458 seems to me, from Mr. Whitehead’s note, to be that
when the time mentioned therein has elapsed rights in immovables
acquired by foreigners prior to the operation of the treaties can
not be registered. But, as I have already had the honor to state,
there is no objection to the registration after the 1st of January
next year of rights acquired by foreigners in immovables prior to
the operation of the treaties. The only thing is simply that
preference for rights registered after that date can not be
contended for in accordance with the order of their establishment. I
have no doubt, therefore, that your excellency will agree with the
view of the Imperial Government that there is no reason for
extending the time mentioned in the last clause of Article I of the
above imperial ordinance.
In conclusion, there is a matter to which I wish to call your
excellency’s attention, namely, that the case of the attempted
transfer of a perpetual lease and the buildings erected on the
property between Mr. T. R. Brewer and Mr. C. K. M. Martin, cited in
Mr. Whitehead’s note, seems to be considered (by Her Majesty’s
chargé d’affaires) as a case not within the limits of the
application of the last clause of Article I of the imperial
ordinance No. 458. I do not know for certain the date of that
transaction, but I believe, to judge from the terms of the above
note, that it was after the operation of the new treaties. If this
is really so, that transaction would not be affected, even if the
time fixed in the said imperial ordinance were extended by such
extension. That is to say, as I have had the honor to state at
length above, the last paragraph of the said first article refers
only to rights in immovables acquired by foreigners prior to the
operation of the new treaties, with the exception of perpetual
leases, and no rights acquired after the operation of the treaties,
with the sole exception of cases of the transfer of perpetual
leases, can be set up against third persons without registration
being effected, notwithstanding the time mentioned in the clause of
the article mentioned.
I take, etc.,
Kato Takaaki,
Minister for Foreign
Affairs.
