Q: What is the Legal Standing of a Provisional Registration (Karitōki) Rights Holder in Japan Before Final Registration?

Japanese Attorney at Law - Bengoshi L.L.

• 7 min read

Previous discussions have established that a provisional registration (karitōki, 仮登記) in Japan primarily serves to preserve the priority of a future final registration (hon-tōki, 本登記) and does not, on its own, grant full third-party effect (taikōryoku, 対抗力). This naturally raises an important question: What specific legal standing or recognized status does the holder of a karitōki actually possess before this conversion to a hon-tōki? This is particularly pertinent for holders of a Type 1 provisional registration (法第105条第1号の仮登記), where a substantive right is already considered to exist, but a final registration is procedurally stalled due to the temporary unavailability of specific information like the Registration Identification Information (tōki shikibetsu jōhō, 登記識別情報) or a necessary third-party consent document.

While not equivalent to a fully perfected right, holding a Type 1 karitōki does confer certain legal advantages and a recognized status upon the holder in relation to the property, the registration obligor, and even certain third-party proceedings.

Core Aspects of the Type 1 Karitōki Holder's Status

The legal standing of a Type 1 karitōki holder is multifaceted, reflecting the nature of this registration as a placeholder for an existing, albeit unperfected, substantive right.

1. Presumption of the Underlying Substantive Right:
A Type 1 karitōki is made on the premise that a registrable change in a real right (e.g., ownership transfer through sale, establishment of a mortgage) has already substantively occurred. The "cause of registration" (登記原因 - tōki gen'in), such as "Sale on Year/Month/Day," recorded as part of the karitōki, points to this underlying event. Consequently, the registration itself lends a degree of presumptive force to the existence of this substantive right in favor of the karitōki holder.

While one Great Court of Cassation (Daishin'in, 大審院) judgment from Shōwa 9 (1934) October 6 suggested that a karitōki made based on a unilateral application by the rights holder (e.g., with the obligor's consent, but not a joint application) might not carry a presumptive force regarding the underlying facts of the transaction (like the existence of the sale contract itself), the prevailing view among some commentators, as reflected in the provided legal analysis, is that any duly effected karitōki should afford the named holder at least a prima facie presumption that the registered right exists in their favor. This presumption, though rebuttable and weaker than that of a hon-tōki, forms a basis for their legal standing.

2. Secured Priority for Future Hon-tōki:
This is the most direct and undisputed aspect of the karitōki holder's status. The registration explicitly secures a specific rank in the queue of rights. When the hon-tōki is eventually made, it will be recorded in the space conceptually reserved for it at the time of the karitōki (under older physical registry systems, this was a literal blank space left in the register; in digital systems, the linkage achieves the same priority effect), ensuring it inherits the karitōki's original priority date and number. This status is crucial for prevailing over subsequently registered conflicting rights.

Rights and Standing in Relation to the Karitōki Obligor (登記義務者 - Tōki Gimusha)

The karitōki obligor is the party who is bound to cooperate in the final registration (e.g., the seller in an ownership transfer, the property owner in a mortgage establishment). The Type 1 karitōki holder has clear rights against this party:

1. Right to Demand Cooperation for Hon-tōki:
Once the procedural impediment that necessitated the Type 1 karitōki is resolved (e.g., the tōki shikibetsu jōhō is found or provided, the formal third-party consent document is obtained), the karitōki holder has the right to demand that the karitōki obligor join in the application for hon-tōki. If the obligor refuses, the karitōki holder can typically sue to compel this cooperation and obtain a judgment in lieu of the obligor's participation.

2. Persistence of this Right Despite Subsequent Transfer by Obligor:
A significant aspect of the karitōki holder's status is that their right to demand hon-tōki from the original karitōki obligor generally persists even if the obligor subsequently transfers the property to a third party who obtains their own hon-tōki. A Great Court of Cassation judgment from Shōwa 7 (1932) August 5 affirmed that the karitōki holder can still direct their claim for hon-tōki procedures against the original obligor. The karitōki holder, upon completing their hon-tōki (which will have prior ranking), can then take steps to address the intervening third party's now subordinate registration, typically by seeking its cancellation due to the superior priority.

While a Type 1 karitōki holder cannot directly assert their substantive right against third parties before hon-tōki, their registered status is not entirely without consequence in various third-party contexts:

1. Prevailing Over Intervening Rights (Post-Hon-tōki Assertion):
The ability to ultimately defeat conflicting rights registered by third parties after the karitōki but before the hon-tōki is a cornerstone of the karitōki holder's protected position. This power is actualized once the hon-tōki is made, leveraging the priority preserved by Article 106 of the Real Estate Registration Act.

2. Status in the Obligor's Bankruptcy Proceedings:
If the karitōki obligor enters bankruptcy after a Type 1 karitōki has been validly made based on a pre-bankruptcy cause, the karitōki holder can generally assert their position against the bankruptcy trustee. They typically retain the right to seek the completion of the hon-tōki from the trustee, provided the underlying substantive right giving rise to the karitōki is valid and enforceable against the bankrupt estate (e.g., a Great Court of Cassation judgment of Taishō 15 (1926) June 29 supported the karitōki holder's right to demand hon-tōki procedures from the bankruptcy trustee). This prevents the karitōki-protected right from being simply absorbed into the general pool of assets for unsecured creditors.

3. Position Against Subsequent Tax Sale Purchasers:
If a property subject to a Type 1 karitōki is subsequently seized and sold for delinquent taxes owed by the karitōki obligor, the rights of the karitōki holder are generally not extinguished if the karitōki represents a valid substantive right that predates the tax lien which led to the sale. A purchaser at such a tax sale typically cannot demand the cancellation of a pre-existing, valid karitōki (as indicated by a Hiroshima High Court judgment of Taishō 11 (1922) April 8). The priority of the karitōki-protected right relative to the tax lien itself would depend on the specific timing and nature of both.

4. Standing to Seek Correction of Conflicting Subsequent Registrations:
If a third party, after a Type 1 karitōki is in place, obtains a hon-tōki that is flawed or incorrectly describes rights in a way that prejudices the karitōki holder's future hon-tōki (e.g., a subsequent registration claims full ownership for a third party when the karitōki was for a co-ownership share by the karitōki holder), the karitōki holder may have standing to demand correction of the third party's registration. This right is often asserted in conjunction with or after completing their own hon-tōki, based on their superior priority (e.g., a Great Court of Cassation judgment of Taishō 10 (1921) October 27 addressed such scenarios).

5. Status as an "Interested Party" (利害関係人 - Rigai Kankeinin) in Various Proceedings:
The holder of a karitōki is often recognized as a "person with an interest in the registration" or a "person with an interest" in various legal contexts:
* Under Real Estate Registration Act Article 66: This article concerns situations where the consent of an interested third party is required for the alteration or correction of an existing registration. A karitōki holder whose interests could be affected by such an alteration or correction would likely be considered an interested party whose consent might be necessary.
* In Compulsory Auction (競売 - Keibai) or Tax Sale (公売 - Kōbai) Proceedings: The status of a karitōki holder in such proceedings, particularly their right to receive notices or to exercise specific rights like tekiyo (滌除 – a statutory process allowing a third-party acquirer of mortgaged property to clear certain mortgages by paying a specified amount or the property's value), has been a subject of considerable legal discussion and evolving case law.
* Some older Great Court of Cassation judgments (e.g., Taishō 13 (1924) August 2; Shōwa 4 (1929) July 6 ) recognized karitōki holders (even those with only a claim-preservation karitōki) as "third-party acquirers" eligible for tekiyo or entitled to notifications under Article 378 of the Civil Code (relating to enforcement of mortgages).
* However, other judgments were more restrictive, sometimes denying such status if the karitōki was merely for a conditional claim or if the holder was not yet deemed a full "third-party acquirer" with a present substantive interest. Legal scholars also presented divided opinions on the breadth of these rights for karitōki holders, particularly concerning tekiyo.
* Generally, a Type 1 karitōki holder, representing an already existing substantive right, would have a stronger argument for being treated as an interested party with protectable rights in auction scenarios compared to a holder of a more speculative future claim. Their ability to participate, receive distributions (if their right is, for example, a provisionally registered mortgage), or challenge procedural irregularities would depend on the specifics of their karitōki and the nature of the auction.

Limitations on Direct Powers Before Hon-tōki

Despite these recognized aspects of their status, holders of a Type 1 karitōki face limitations before converting it to a hon-tōki:

  • No Direct Enforcement of Substantive Right Against Third Parties: As established, they cannot, for example, demand possession of the property from a third party who subsequently obtained a hon-tōki, based solely on the karitōki.
  • Indirect Approach to Clearing Intervening Registrations: While their hon-tōki will ultimately have priority, directly compelling the cancellation of an intervening third party's hon-tōki typically requires the karitōki holder to first complete their own hon-tōki. Strategic litigation might involve suing the original obligor for hon-tōki and potentially joining the intervening third party in the same action to seek cancellation of their registration contingent upon the success of the hon-tōki claim.

Conclusion: A Legally Recognized Status Short of Full Perfection

The holder of a Type 1 provisional registration in Japan possesses a significant and legally recognized standing, even before achieving final registration. This status flows from the presumption of an underlying substantive right and, most critically, the secured priority for an eventual hon-tōki. This translates into enforceable rights against the registration obligor and a recognized position in various interactions with third parties and legal proceedings, including bankruptcy and compulsory sales. While the karitōki holder must still navigate the path to hon-tōki to fully realize and enforce their substantive property right against the world, the Type 1 karitōki provides a crucial and often indispensable level of legal protection and standing during the interim period, ensuring that their existing rights are not unjustly prejudiced by procedural delays or the subsequent actions of others.