Public belief
When public trust is a rebuttable presumption of a legal entity on the actually existing legal situation.
General
Security in legal dealings requires that the legal relationships and facts entered in registers are (refutable) correct and subject to evidence of prima facie evidence . This means that public belief is a sub-category of legal appearance . Public belief is part of the principle of publicity prevailing in German property law . It protects the trust of legal transactions in the correctness of publicly kept registers (e.g. the commercial register or the land register ) and public documents (such as the certificate of inheritance ). The public can assume, for example, that the legal entity registered in the land register as the property owner is actually the property owner.
The public belief of the land register regulated in § § 891 , § 892 BGB is most pronounced . Here, however, not everyone who inspects the land register is protected, but only those who acquire a right to a property through a legal transaction . Public faith can therefore not be invoked by anyone who acquires a right to a property, for example through a foreclosure auction . The land register, as the official register of all rights associated with real estate , is based on the application principle , according to which entries must be applied for by those involved and approved by the person concerned ; this also applies to deletions . Entries or deletions ex officio in the land register are rather rare . For interested parties who want to inspect the land register, the question now arises whether and to what extent they can trust the entries and deletions there, i.e. whether they are correct. The term correctness means according to land register law the agreement of the real legal situation with the registered one.
Legal presumption
First of all, it should be noted that the land register cannot be viewed by anyone like other public registers (such as the commercial register). Proof of a legitimate interest is required (“formal publicity”; Section 12 GBO). Only when this legitimate interest has been proven do the rules on public belief (so-called “material publicity”) take effect.
In § 891 BGB, the legislature uses the frequently used means of rebuttable legal presumption with regard to public belief . According to this, it is legally and rebuttably presumed that registered rights are correctly entered and deleted rights have been correctly deleted.
Public belief is built on this. It creates a legal effect according to which a person should acquire the legal status in accordance with the contents of the land register when acquiring a property right or in other legal transactions via a registered right ( § 892 , § 893 BGB). However, these provisions contain numerous restrictions that public belief does not extend.
Public belief is comparable to the presumption of ownership in § 1006 BGB for movables.
Exceptions
If an inspection of the land register falls under the following exceptions, public belief cannot be claimed. The legally protected trust in the correctness of the land register entries then does not apply.
Personal exceptions
Public belief applies only to those who want to acquire a right to a property or a right to such a right through legal transaction. The legal transactions include the acquisition of property or other property rights, in particular mortgages , other legal transactions in connection with property rights such as cancellation, change of content, change of rank (§ § 875 , § 877 , § 880 BGB) as well as the approval of a reservation ( § 883 BGB). However, if the legal transactional acquirer is aware of the incorrectness of entries or deletions or if an objection is entered in the land register, public belief does not apply either. The objection indicates a (possible) inaccuracy of the land register and only destroys public belief with regard to the entry to which it refers (Section 892 (1) sentence 1 BGB). An objection to ownership destroys the public belief of the entire land register. In turn, only a transport transaction in which at least one person is involved, i.e. the seller and purchaser are different people, is protected .
Public belief is therefore not in favor of people who only want to inspect and also not in favor of people who, for example, acquire property in the foreclosure auction because the foreclosure auction does not constitute a legal transaction (award by law). Therefore, the acquisition of land by inheritance is not protected by public faith. If there is no underlying transport business, public belief does not apply either.
Factual exceptions
Public belief extends to the land register and parts of the inventory on which the property in question is booked. In particular, sections I to III of the land register are recorded, but also some cadastral information contained in the inventory.
A pioneering - and still valid - judgment of the Reichsgericht dated February 12, 1910 dealt with the previously controversial question of whether the cadastral information can be part of public belief:
- " ... Accordingly, everything is irrelevant what the land register contains about the area or the location of the property, such as the existing buildings on the area (the components within the meaning of §§ 93, 94 BGB) . The situation is different, however, with that entry that proves a certain area of land as belonging to the property, because it is at the same time established in public belief to which object the registered rights extend, and in particular which area the property rights of the person registered as owner to Has and includes objects. Section 892 of the German Civil Code generally states that “the content of the land register” is considered correct, and thus refers without distinction to all legal relationships that are evident from the contents of the land register. ... Because ... every registered right is liable to the given property. But what area the property makes up is of decisive importance. Ownership of a piece of land cannot be imagined otherwise than in relation to a specific area of land. If, therefore, the legal relationship of ownership of a piece of land is to be the subject of public belief in the land register, it must be possible to see from this the delimited part of the earth's surface to which the property relates, and what can be seen must be decisive, because otherwise public belief is irrelevant would .... "
Since then it has been established that the parcel details describe a certain area of land as property; this information is covered by the presumption of § 891 BGB and participates in public belief. The parcel designation (district, corridor, parcel number) is also recorded by public belief. Public belief, on the other hand, does not extend to the designation of the location, the size of the area, the type of use (type of development and management) and active notes .
Legal effect
If a legally binding purchaser in good faith can claim public faith, he may assume that the entries and deletions of the land register are correct. By relying on the - incorrect - land register, a legal transactional purchaser can then also acquire a property or property right from the unauthorized person. If, undisputedly, incorrect ranking relationships arise due to errors in the land registry , this legal position is final. The acquirer of rights should not have to check whether the entry violated § 45 GBO. If then z. If, for example, after a land charge has been registered, it emerges that the ranking is incorrect, then this incorrect ranking applies by virtue of public belief. The public belief in the land register is therefore so strong that an incorrect right is cured if a third party purchases it in good faith . Errors of the land registry against § § 17 and 45 GBO do not make the land register incorrect, so that there is no right to correction and no possibility of official objection (§ § 53 para. 1, § 71 para. 2 GBO). The disadvantaged from the incorrect ranking has no claim to enrichment vis-à-vis the beneficiary; he only has the right to compensation from § 839 BGB ( breach of official duty ). Land registry judges, like all registry judges, are cautious because the so-called judges' privilege of Section 839 (2) BGB does not apply to them. So you are not protected against criminal mistakes like judges and civil servants in the event of a breach of official duty by the state.
Others
In the former GDR was valid until 31 December 1999 a partial suspension of the public faith of the land register for buildings owned, shared rights and claims under the property law Settlement Act .
