Lex loci rei sitae
The Latin term Lex loci rei sitae translates to ‘law of where property is located’ and is a legal doctrine of international private law pertaining to the transfer of title or ownership of property. Law dictates that transfer of ownership of property will be carried out in compliance with the laws of the place where the property is located. Any contracts or transfer of real estate is governed by the lex loci rei sitae, or simply ‘lex situs’, and will be deemed invalid if it doesn’t comply with the lex loci rei sitae.
Both English and American authors and analysts of the conflict of laws concur that the law to be considered in all matters of real estate transfers is the lex loci rei sitae. In addition to the lex situs governing matters of real estate transfers, it also governs affairs of testate and intestate (with or without a will) succession.
Even casual assessments of the rationale behind the lex situs being allowed to govern real estate transfers reveal the approach to be practical and effective. It goes to reason that a property’s existence in a particular country or state should place it under the jurisdiction of that country or state. This control a state exercises over real estate inside its jurisdiction generally comes in play in matters of public policy. Each state has its own sets of policies governing the administration of land and therefore would not appreciate other states interfering in matters that affect real estate within its jurisdiction.
If the lex loci rei sitae was to be rejected, there would be no actionable law to take its place. The law of the owner’s place of residence can’t be applied as that would require for the owner’s identity to be authenticated and their domicile verified before the law of their domicile can be applied. It would also be a problem if there are more than one owners or claimants residing in different jurisdictions, in which case a third party would have to be allotted the responsibility of deciding which domicile’s law must be followed. The ‘lex loci contractus’, the law of where the contract was drawn up, cannot be followed either as that would also require an intermediary in case of opposing contracts being executed in different jurisdictions. The lex loci rei sitae, therefore, becomes the only effective approach in real estate title transfers and matters of succession.
In application, the lex loci rei sitae will determine the following, among other things:
- requirements of the will;
- required number of witnesses;
- dexterity of the testator (person the legacy belongs to)
- dexterity of individuals benefitting from the will;
- legal authority of the testator; will become a consideration in situations like a child being born after drawing up of the will, or the testator passing away;
- authority of a widow or other individuals to challenge the will;
- cancellation of the will due to any reason;
- nature of the established estate;