Active note

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An active note , also known as a ruling note , is an entry in the inventory of the land register in Germany and specifies the right from which a property is favored.

General

Since the active note is entered in the inventory of the land register, however, like this, it does not enjoy public faith . Active remarks only have "informative", "informational", ie declaratory meaning; for the content and existence of the subjective, real right, its entry in the second section in the land register sheet of the encumbered property is decisive.

object

The relevant § 9 GBO for the active note only applies to subjective real rights that are part of the dominant property in accordance with § 96 BGB . Which includes:

The most common case is the right of way , which can be entered as an easement , limited personal easement or usufruct .

Conditions and procedure

The entry of an active note in accordance § 9 para. 1 sentence 1 GBO only on request . This does not require any special form . The fee is determined in accordance with Section 67 Paragraph 1 No. 3 KostO . An active note can only be entered if the subjective-real right to which it relates is already entered in the land register sheet of the encumbered property or is entered at the same time as it. Eligible to apply are the owner of the dominant property and anyone who, in accordance with Section 876 sentence 2 BGB, would have to agree to a cancellation of the right and thus an economic decrease in value. The latter regularly includes mortgage holders and other, possibly only indirectly, affected parties. After the active note has been entered in the land register sheet of the ruling property - in accordance with § 7 GBV in the inventory in columns 1, 3 to 6 - a reference to this entry in the second section of the land register sheet is ex officio in accordance with § 9 para. 3 GBO encumbered property added. There, both the subjective rights in rem (encumbrances) and references to active notes are listed ( § 10 GBV ). If the subjective right in rem no longer applies or if the content changes, the active note and the reference to this will be deleted or changed ex officio ( Section 9 (2) GBO). Corrections of this kind are free of charge.

Practical meaning

advantages

The entry of an active note can be considered by the owner as well as by the real entitled persons in the second and third department of the dominant property. A bank, for example, which acts as a mortgagee in the above-mentioned sense within the framework of its loan security , protects itself against deletion, change ( § 877 BGB) and deterioration of rank ( subordination , § 880 para. 2 BGB) of the subjective-real rights that are significant for the value of the ruling property. The land registry only has to consider the bank's approval or refusal in accordance with Section 21 GBO if an active note has been entered . In the absence of a note ( formal right ), the land registry may delete the subjective right in rem and thus make the land register incorrect. The right itself, however, remains material , as the bank should have agreed to its cancellation in accordance with Section 876 sentence 2 BGB. The bank could force the re-registration with a land register amendment suit, but only as long as a third party has not yet acquired the property in good faith .

disadvantage

As a rule, the subjective right in rem only makes up a small part of the total property value. Is z. For example, in the event of a division of the dominant or encumbered property, consideration is given to revoking this right, often not just one credit institution but several real entitled persons, in some cases a large group of people, must be informed and consent to the resulting (minor) depreciation ask. The § 21 GBO which engages in giving up an active note, facilitates the Land Registry traffic by the in § 876 (not substantive) makes mandatory sentence 2 BGB consent necessity in formal terms irrelevant.

Active comments are rarely used in practice.

Others

In the wording of the land register order, the land register decree and the civil code, neither an active note nor a ruling note appear as terms.

Individual evidence

Bengel / Simmerding: land register, property, border. 2000.

  1. ↑ a b c § 9, Rn 5.
  2. ↑ a b § 9, Rn. 2
  3. ↑ a b c § 9, Rn. 4th

Demharter: Land Register Regulations. 2005.

  1. ↑ § 9, p. 170, Rn. 14th
  2. ↑ § 9, p. 166, Rn. 2
  3. ↑ § 9, p. 165, Rn. 1
  4. ↑ § 9, p. 167, Rn. 5
  5. ↑ § 9, p. 168, Rn. 8th
  6. ↑ § 21, p. 369, Rn. 4th
  7. ↑ § 9, p. 169, Rn. 12
  8. ↑ § 9, p. 170, Rn. 15th
  9. ↑ § 21, p. 369, Rn. 3

Schöner / Stöber: Land register law. 2004.

  1. ↑ a b p. 526, Rn. 1150
  2. ↑ p. 527, para. 1150

Other sources:

  1. ^ Wolfgang Brehm / Christian Berger: Property Law. Mohr Siebeck, Tübingen 2006, ISBN 3-16-148915-2 , p. 193, Rn 6.
  2. ↑ Wolfgang Schmenger: "The easement and the limited personal easement, principles, new developments and new jurisprudence". Lecture at the XXXVII Lautenbacher advanced training event of the Badischer Notarverein from March 13 to March 16, 2007. In: Journal for the notary's office in Baden-Württemberg (BWNotZ) . No. 4/2007 July / August ( Memento of September 13, 2008 in the Internet Archive ). (Pp. 73-90), p. 78.
  3. ↑ a b Herbert Grziwotz: The subsequently 'auction- proof ' property. In: Journal for Real Estate Law (ZfIR) , Issue 3, February 7, 2005, 9th year RWS Verlag, Cologne. (Pp. 91-93), p. 92.
  4. ↑ Michael Volmer: "On the maintenance obligation for walking and driving rights under the joint use authorization of the serving owner ( § 1021 BGB)". In: Communications of the Bavarian Notarial Association, the Notarkasse and the Bavarian Chamber of Notaries (MittBayNot) , http://www.notare.bayern.de/read.php?atei=UERGUy9NaXR0QmF5Tm90L21pdHRCYXlOb3Q1XzAwLnBkZg== (link not available)

literature

  • Manfred Bengel , Franz Simmerding : land register, property, border. Handbook for the land registry, taking into account cadastral issues. 5th, exp. Luchterhand, Neuwied 2000, ISBN 3472035862 .
  • Johann Demharter : Land Register Regulations with the text of the land register decree and further regulations (= Beck's short comments. Volume 8) 25th, revised edition, CH Beck, Munich 2005, ISBN 3-406-53040-0 .
  • Hartmut Schöner, Kurt Stöber: Land Register Law (= manual of legal practice. Volume 4). 13th, revised edition. CH Beck, Munich 2004, ISBN 3-406-51044-2 .