A provisional registration (karitōki, 仮登記) in Japan is a crucial tool for preserving the priority of a potential real property right. However, it's essential to remember that a karitōki is an interim measure. To gain full, enforceable rights that can be asserted against all third parties (taikōryoku, 対抗力), the karitōki must be converted into a final registration (hon-tōki, 本登記). This conversion process involves specific procedures and documentary requirements under the Japanese Real Estate Registration Act (不動産登記法 - Fudōsan Tōki Hō).

For businesses that have secured a karitōki, understanding how to navigate the path to hon-tōki is the vital next step. This article provides a guide to the procedures, focusing on identifying the correct registration obligor and assembling the necessary documentation.

Laying the Groundwork: Fulfilling Substantive Requirements for Hon-tōki

Before even initiating the hon-tōki application, the most critical step is to ensure that the underlying substantive conditions that necessitated the karitōki in the first place have been resolved or fulfilled:

• For a Type 1 Karitōki (made because specific information was missing for an otherwise substantively ready transaction): The previously unavailable information must now be obtainable. This means:
  • The Registration Identification Information (登記識別情報 - tōki shikibetsu jōhō) of the registration obligor is now available.
  • The formal document evidencing a necessary third-party permission, consent, or approval can now be provided.
• For a Type 2 Karitōki (made to preserve a claim or conditional right): The claim must have matured, or the condition must have been fulfilled. For example:
  • A sales option (baibai yoyaku, 売買予約) has been duly exercised.
  • A condition precedent (teishi jōken, 停止条件) for a transaction has been met (e.g., financing secured, necessary permits obtained).
  • A specified commencement time (shiki, 始期) for a right to take effect has arrived.

Without the satisfaction of these underlying substantive elements, an application for hon-tōki will lack its essential legal basis.

Identifying the Correct "Registration Obligor" (本登記義務者 - Hon-tōki Gimusha)

The "registration obligor" is the party legally bound to cooperate in the registration process, typically the party from whom the right is being transferred or established. Identifying the correct hon-tōki gimusha is crucial.

Scenario 1: The Original Karitōki Obligor Still Holds the Relevant Underlying Right
This is the most straightforward situation[cite: 214]. The party who was the registration obligor for the karitōki (e.g., the seller who granted your company an option, the property owner who agreed to a mortgage) remains the hon-tōki gimusha.

• Verification: Ensure their currently registered details (name, address) are accurate. If they have changed, a prior registration updating their details may be necessary before the hon-tōki application.
• Cooperation: If the obligor is cooperative, a joint application for hon-tōki is the standard route. If they are uncooperative despite the matured right, the karitōki holder (your company) will likely need to file a lawsuit to obtain a court judgment compelling them to complete the hon-tōki procedures (Real Estate Registration Act, Art. 63).

Scenario 2: The Property or Underlying Right Was Transferred to a Third Party After Your Company's Karitōki Was Made
This scenario is more complex, as a third party now holds a registered interest in the property[cite: 214]. The approach differs depending on the nature of your karitōki:

• If Your Company's Karitōki Was for Ownership Transfer (or a Claim Thereto):
  • The Role of Article 109: Article 109 of the Real Estate Registration Act is pivotal here. When applying for a hon-tōki based on an ownership-related karitōki, and there is an intervening third party who has subsequently registered an interest (e.g., they bought the property from your original seller and obtained a hon-tōki), your company (the karitōki holder) must generally provide either:
    • The written consent of this interested third party to your hon-tōki.
    • A court judgment that is opposable to this third party, effectively affirming your hon-tōki's priority.
  • Who is the Hon-tōki Obligor? Despite the intervening third party, the application for hon-tōki is still typically made with the original karitōki obligor (e.g., your original seller) as the counterparty in the registration procedure. The consent/judgment from the third party deals with their conflicting registered interest.
  • Effect on the Third Party's Registration: If the third party's consent or an opposable judgment is provided, and your company's hon-tōki is successfully made, Article 109, Paragraph 2 allows the registrar to ex officio (by their own authority) cancel the intervening third party's conflicting registration because your hon-tōki (taking priority from your karitōki date) now outranks it.
  • Historical Context: Japanese law historically saw varied judicial approaches to this situation before the clearer framework (similar to the current Article 109) was solidified, particularly with amendments around Shōwa 35 (1960)[cite: 214]. The current system aims to streamline the resolution of these priority conflicts directly within the registration process when proper documentation is presented.
• If Your Company's Karitōki Was for the Establishment of a Limited Real Right (e.g., Mortgage, Lease, Superficies):
  The property owner (karitōki obligor A) grants your company (B) a karitōki for a mortgage. Subsequently, A sells and transfers ownership (hon-tōki) to a new owner (C). Who is the hon-tōki gimusha for B's mortgage?
  • Dominant View & Some Practice: The prevailing view in case law and among scholars is that B can typically demand the hon-tōki for the mortgage directly from the new owner, C. The rationale is that C acquired the property already burdened by the potential right secured by B's karitōki. C is expected to have known about the karitōki (as it's registered) and therefore takes the property subject to it.
  • Alternative View/Practice: However, some judicial opinions (e.g., a Tokyo High Court judgment of Shōwa 34 (1959) December 23) and legal arguments have maintained that the hon-tōki obligation should remain with the original karitōki obligor (A)[cite: 215].
  • Registry Practice (for Mortgages): For mortgage karitōki, an administrative circular (Shōwa 37 (1962) February 13) indicated that the application for hon-tōki for the mortgage could be made with either the original obligor (A) or the new owner (C) as the registration obligor. This practical flexibility acknowledges that C is now the owner of the property to be encumbered.

The specific party to name as the hon-tōki gimusha in cases involving intervening third parties can be complex and often requires careful legal analysis of the specific type of karitōki and the nature of the third party's right.

Key Documents and Information Required for the Hon-tōki Application

Regardless of the obligor, a comprehensive set of documents is needed to convert a karitōki to a hon-tōki. These generally include:

1. Application Form (登記申請書 - Tōki Shinseisho):
   • Must clearly state that it is an application for a hon-tōki based on a specific, pre-existing karitōki. It should reference the karitōki's reception number, date, and its priority number in the register.
2. Information Evidencing the Cause of Registration (登記原因を証する情報 - Tōki Gen'in o Shōsuru Jōhō):
   • This document must now prove the fully matured cause for the hon-tōki. For example:
     • If the karitōki was for a sales option, this would be the original option agreement plus evidence of its valid exercise.
     • If it was for a conditional sale, this would be the original conditional sale agreement plus evidence that the condition has been fulfilled.
     • If it was a Type 1 karitōki due to missing third-party approval for a sale, this would be the original sale agreement plus the now-obtained third-party approval document.
   • The date of the cause for hon-tōki will typically be the date the right fully matured (e.g., date of option exercise, date of condition fulfillment, date of permit issuance).
3. Registration Identification Information of the Registration Obligor (登記義務者の登記識別情報 - Tōki Gimusha no Tōki Shikibetsu Jōhō):
   • This is the 12-character code belonging to the person who is the obligor for the hon-tōki (usually the original karitōki obligor for their registered right that is being affected).
   • If this cannot be provided (e.g., lost, obligor uncooperative even after a judgment), alternative procedures such as the "prior notice system" (事前通知制度 - jizen tsūchi seido) or authentication by a notary may be required (Real Estate Registration Act, Art. 23).
4. Obligor's Registered Seal Certificate (印鑑証明書 - Inkan Shōmei-sho):
   • For applications submitted in paper form by a registration obligor who is an individual or a company representative, their official seal certificate (issued within the last three months) is required to authenticate the seal on the application or other documents like a power of attorney[cite: 226].
5. Applicant's (New Rights Holder's) Address Certificate (住所を証する情報 - Jūsho o Shōsuru Jōhō):
   • If the hon-tōki results in a new party acquiring ownership (e.g., your company as the buyer), a certificate proving their registered address (e.g., a resident certificate - jūminhyō no utsushi 住民票の写し for individuals, or a corporate registration certificate for companies, usually issued within three months) is needed[cite: 227].
6. Evidence of Fulfillment of Conditions / Resolution of Impediments:
   • For Type 1 Karitōki: The previously missing third-party consent document or evidence that the tōki shikibetsu jōhō is now available (or that alternative procedures are being used).
   • For Type 2 Karitōki / Conditional Right Karitōki: Documentary proof that the claim has matured or the condition has been fulfilled (e.g., a formal notice of option exercise and acceptance, a certificate proving a necessary permit has been granted).
7. Consent of Interested Third Parties (or Opposable Court Judgment) (利害関係人の承諾書又はこれに対抗することができる裁判があったことを証する情報 - Rigai Kankeinin no Shōdakusho mata wa Kore ni Taikō Suru Koto ga Dekiru Saiban ga Atta Koto o Shōsuru Jōhō):
   • As per Article 109, if the hon-tōki is for an ownership-related right and there are intervening registrations made after your karitōki (e.g., a subsequent purchaser, a mortgagee from the original obligor), you must submit their written consent (with their seal certificates) to your hon-tōki taking priority, or a final court judgment confirming your right against them[cite: 227, 196, 197].
8. Power of Attorney (委任状 - Ininjō): If legal representatives (lawyers, judicial scriveners) are handling the application.
9. Corporate Registration Certificates (登記事項証明書 - Tōki Jikō Shōmeisho): For any company involved as an applicant or obligor, to prove its existence and the authority of its representative. Must be recent.
10. Proof of Inheritance (相続を証する情報 - Sōzoku o Shōsuru Jōhō): If the original karitōki rights holder or obligor is deceased and their heir(s) are now involved in the hon-tōki application.
11. Registration License Tax (登録免許税 - Tōroku Menkyo Zei): Proof of payment of the tax for the hon-tōki. Notably, if tax was paid for the karitōki, the amount for the hon-tōki for an ownership transfer may be calculated as the full rate for ownership transfer minus the rate already paid for the ownership transfer karitōki (Registration License Tax Act, Art. 17, para. 1).

The Application and Execution Process for Hon-tōki

• Application Method: Generally, a joint application by the tōki kenrisha (your company) and the identified tōki gimusha is the standard. Unilateral application is possible with a relevant court judgment.
• Submission: The complete application package is submitted to the competent Legal Affairs Bureau.
• Examination: The registrar will examine the hon-tōki application for compliance, similar to the karitōki application process.
• Execution: If successful:
  • The hon-tōki is recorded in the "reserved space" associated with the original karitōki, thereby inheriting its priority number[cite: 241, 244, 242].
  • If Article 109 applies (ownership hon-tōki with intervening third-party rights and necessary consents/judgment), the registrar will, by their own authority, cancel the conflicting intervening registrations[cite: 245, 196].
  • A new Registration Identification Information (tōki shikibetsu jōhō) is issued to your company as the new, finally registered rights holder.
  • A Registration Completion Certificate (tōki kanryō-shō) is issued.

Conclusion: The Crucial Step to Full Legal Protection

Converting a provisional registration to a final registration is not merely a procedural update; it is the critical step that transforms a priority-placeholder into a fully enforceable real property right opposable against all third parties. The process requires careful identification of the correct registration obligor, especially when intervening third-party rights exist, and meticulous compilation of all necessary supporting documents. Given the complexities, particularly in navigating Article 109 and dealing with third parties, engaging experienced Japanese legal counsel and judicial scriveners is highly advisable to ensure a smooth and successful transition from karitōki to the full legal protection afforded by a hon-tōki.