Public burden

Public encumbrances are encumbrances on a property or property-equivalent law with public charges that can not be entered in the land register .

General

Public burdens are demands of the state and its public administration ( authorities , municipalities ) against the respective property owner. The Federal Court of Justice (BGH) defined a public real estate burden as "a tax obligation based on public law , which is to be paid in cash through recurring or one-off services and for which the debtor is personally liable as well as a real estate". Irrespective of the point in time at which it arises, the payment obligation applies to the respective landowner at the point in time when the claim is made, so the property is "encumbered" regardless of who it belongs to.

Legal issues

The public burden is a "burden" in the sense of the BGB , in which an obligation rests on the thing (the property) and a service has to be provided from the thing. In order to become a burden, the claims must be due . For the area of public burdens, the prior registration of a compulsory mortgage is unnecessary.

Public burdens are a legal term that is mentioned in Section 54 GBO . According to this, the public burdens resting on a property are excluded as such from being entered in the land register, unless their entry is specifically permitted or ordered by law. In the foreclosure auction , the auction proceeds are to be distributed in a certain order of priority in accordance with Section 10 (1) No. 3 ZVG , with the public burdens in fourth place . This rank position is taken by all arrears of taxes of the last four years. Public charges are only public land charges within the meaning of Section 10 (1) No. 3 ZVG if they are designated as a public charge in the federal or state law governing the charge or if the statutory regulation clearly states that the tax debt is due to the Property is a burden and therefore there is not only personal liability of the tax debtor, but also real liability of the property. Such a public property encumbrance therefore results in real liability of the property, even if the encumbrance is not entered in the land register. In the case of a building on third-party land that was assigned to the client when determining the unit value , the real liability of the building for property tax cannot be asserted against the owner of the land.

For the real use of the acquirer's property, the prior issuance of a tolerance notice in accordance with Section 191, Paragraph 1, Clause 1, 2nd Alt. AO required and sufficient.

When selling land , the seller is obliged in accordance with Section 436, Paragraph 1 of the German Civil Code ( BGB) to exempt the purchaser from paying public charges only in relation to development and resident contributions for measures that have been started in terms of construction by the time the contract is concluded. However, he is not liable for the non-existence of other public burdens (Section 436 (2) BGB). According to this provision, the seller is not liable for the freedom of the property from public charges and public charges. However, this legal regulation is optional . The contracting parties can therefore make a different regulation. In the practice of real estate transactions, it is customary for the seller to assume liability for freedom from public charges that arise up to the transfer of ownership.

species

The public burdens include, in particular, local taxes such as development , expansion , road construction contributions or property tax ( Section 12 GrStG ). Whether and to what extent the municipality collects these is regulated in statutes , which it is authorized to issue by the tax laws of the respective federal state. The obligations of the owner or the person entitled to heritable building rights to cash payments from reallocations (§ § 57 to § 61 BauGB ) count as a contribution and rest as a public burden in accordance with § 64 paragraph 3 BauGB on the property or the heritable building right. The contribution and advance payment obligations from land consolidations are public burdens ( § 20 FlurbG ). In accordance with Section 93b (1) GBO, a compensation amount in accordance with Section 25 (6) Federal Soil Protection Act rests on the property as a public burden.

The building load that is entered in the building load register does not belong to the public burdens .

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Individual evidence

↑ BGH NJW 1989, 107 , 108
↑ Otto Palandt / Jürgen Ellenberger , Commentary on the BGB , 13th edition, 2014, § 103 Rn. 1
↑ Max Troll, Grundsteuergesetz , 7th edition, 1997, § 12 Item 2
^ BGH NJW 1989, 107 ; Guiding principle
↑ BFH, judgment of October 23, 1959, Az .: III 166/59 U = BFHE, 70, 21
^ Raimond Halaczinsky, in: Karl Koch / Rolf-Detlev Scholz (eds.), Commentary on the Tax Code , 4th edition, Cologne 1993, § 77 Item 3
↑ Thomas Zerres, Bürgerliches Recht , 2005, p. 171
↑ Herbert Grziwotz, in: NK-BGB, 3rd edition 2013, appendix to §§ 925 ff. 80 ff.
↑ Claudia Röder-Persson, The Privilege of the Public Property Burden in the Foreclosure Act in the Light of the Abolition of the Fiscal Bankruptcy Privilege , 2004, p. 33 ff.
^ Karl Drischler, Baulasten und Zwangsver Auktion , in: NVwZ , 1985, p. 726 f.

[1] BGH NJW 1989, 107 , 108

[2] Otto Palandt / Jürgen Ellenberger , Commentary on the BGB , 13th edition, 2014, § 103 Rn. 1

[3] Max Troll, Grundsteuergesetz , 7th edition, 1997, § 12 Item 2

[4] BGH NJW 1989, 107 ; Guiding principle

[5] BFH, judgment of October 23, 1959, Az .: III 166/59 U = BFHE, 70, 21

[6] Raimond Halaczinsky, in: Karl Koch / Rolf-Detlev Scholz (eds.), Commentary on the Tax Code , 4th edition, Cologne 1993, § 77 Item 3

[7] Thomas Zerres, Bürgerliches Recht , 2005, p. 171

[8] Herbert Grziwotz, in: NK-BGB, 3rd edition 2013, appendix to §§ 925 ff. 80 ff.

[9] Claudia Röder-Persson, The Privilege of the Public Property Burden in the Foreclosure Act in the Light of the Abolition of the Fiscal Bankruptcy Privilege , 2004, p. 33 ff.

[10] Karl Drischler, Baulasten und Zwangsver Auktion , in: NVwZ , 1985, p. 726 f.