Conveyance

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Under conveyance is understood today in real estate law , the real agreement between buyer and seller on the transfer of ownership of a property or leasehold right .

term

In the past, abandonment also referred to the end of use or the abandonment of a thing , which is often abandoned to neglect (e.g. railway lines , graves or canals ). Otto Mayer explained in 1896 that collective ownership of public property could be stripped of its public-law nature by the competent authority (by relinquishing, repealing , downgrading, deedicating ). This abandonment means that the state belongs to the state as private property . The conveyance is the counterpart of the dedication .

The verb to leave has other meanings, some of which are regionally limited, such as renounce, hand over, solemnly transmitted.

Law

Today, the legal term in the property law of the German Civil Code (BGB) refers exclusively to the " agreement of the seller and the buyer on the transfer of ownership necessary for the transfer of ownership of a property".

Legal history

The conveyance has been handed down in its oldest form as a procedural conveyance. The party condemned to evict property granted the victor in the legal dispute immediate abandonment and investiture upon the court ruling . The court issued an "inalienable" (incontestable) royal document.

In the older German common law , the seller apparently had to renounce his property, which was done by renunciation (renunciation, transfer of ownership) on the property, for example by solemnly leaving. The transfer also took place through a solemn act, often combined with a symbolism such as the handing over of a clod of earth with a branch, whereby the beneficiary acquired legally protected trades . Hamburg city right of Ordelbok of 1270 mentioned the term "uplaten" in I Art. 6. This early type of abandonment set off a large number of more traditional, ritualized German-legal forms of land transfers of ownership from. These types of transfer of ownership, which had to be carried out on the seller's own property, were all determined by the part of the waiver ( Latin resignatio, abdicatio ) in which the seller leaves the property. The German legal dictionary is based on the Luebian law from 1294. In Cologne in 1390 they demanded that the conveyance be “with hands, with stalks, with mouth, with cattle in wasem and with raised money in de lüycht”. In terms of linguistic history , the transfer of ownership to the buyer was added to the concept of abandonment . So it is, for example, formulated in the Hamburg city charter from 1603: "But immovable heritage and Zinse intended for sitting council in open Audientz ver leave and auff be worn [...]" (II tit 4 Art. 4).

In 1732, Johann Heinrich Zedler understood relinquishment in the matrimonial property law , "when married couples hand over what they have to each other ...". The concept of abandonment then lost its meaning, because neither the Codex Maximilianeus Bavaricus Civilis (January 1756), the Codex Theresianus (October 1766), nor the General Prussian Land Law (June 1794) mentioned it. The Austrian ABGB of January 1812 does not recognize the word either. It was not until Friedrich Carl von Savigny revived the abandonment in his doctrine of tangible contracts, founded in 1840 . In this form it found its way into the BGB which came into force in January 1900.

Legal issues

The right term conveyance comprises according to § 925 , para. 1 BGB the for transfer of ownership of a plot according to § 873 required BGB real agreement of the transferor and the transferee, which according to this legal definition regularly in the simultaneous presence of both parts of a "competent authority" (the Notary ) must be declared. A substitution is allowed, the parties can each Agent to be represented. The conveyance is unconditional (a property sale with retention of title is not possible) and may not be subject to a time limit (Section 925 (2) BGB). However, it is permissible to make the entry in the land register dependent on a condition (e.g. purchase price payment ) or a time limit (cf. escrow account ).

In addition to the conveyance is substantive law nor the entry in the Land Register necessary until the transfer of ownership is quite effective in a land purchase contract. The transfer of ownership is a disposition transaction . It is necessary for a change of ownership because, according to the separation principle, a change of ownership does not already take place with the obligation transaction (the land purchase agreement ).

The BGB does not stipulate a notarization of the conveyance, but it is legally required vis-à-vis the land registry as proof of the conveyance so that it can make the entry in the land register (see § 20 GBO, § 29 GBO ). In addition, the notarization also creates a bond with the agreement, since real agreements would in principle be freely revocable until the acquisition of rights has been completed ( Section 873 (2) BGB). For these reasons, in practice, the conveyance is also notarized as a legal transaction in rem together with the property purchase contract under the law of obligations.

International

Unlike German law, Austrian law does not recognize the concept of conveyance; in particular, it is not necessary for both contracting parties to be present at the same time. Rather, it speaks of the declaration of posting ( Section 32 (1) lit. b GBG). The freedom of form postulated in § 883 ABGB also applies to sales contracts under § 1053 ABGB. Therefore even the verbally concluded property purchase contract is binding, but the transfer of ownership must be "recorded" by means of a certified document ( § 432 ABGB), the content of which is prescribed in § 433 ABGB. An entry in the land register ("incorporation" or "intabulation") is only possible with a certified declaration of return. This is the written declaration of the seller that he agrees to the entry in the land register. From § 431 ABGB it follows that the purchase transaction is entered in the designated public books (land register).

In Switzerland , the land purchase contract is subject to notarization ( Art. 216 OR , Art. 657 Paragraph 1 ZGB ). In addition to the conclusion of the notarized purchase contract, entry in the land register is required for the acquisition of the property ( Art. 656 Paragraph 1 ZGB). There is no special legal term in Austria and Switzerland for the actual agreement in rem between the buyer and seller of land.

See also

Web links

Wiktionary: Auflassung  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ J. Ferdinand Heßler (Red.), Encyclopädische Zeitschrift des Gewerbewesens , Volume 3, 1843, p. 485
  2. ↑ § 4 Paragraph 4 Cemetery Fee Statute of the Neuried community. In: Neuried community website . December 19, 2013, accessed January 2, 2019 .
  3. ↑ Otto Mayer, German Administrative Law , 1896, p. 25
  4. ↑ Prussian Academy of Sciences (Ed.), German Legal Dictionary , Volume I, 1914, Sp. 891 f.
  5. ↑ Gerhard Köbler , Etymological Legal Dictionary , 1995, p. 29
  6. ↑ Ursula Flossmann, Österreichische Privatrechtsgeschichte , 1983, p. 159
  7. ^ Gerhard Köbler, Abandonment and Renuntiation , in: ZRG GA 85, 1968, p. 214
  8. ↑ Ulrike Köbler, Werden, Wandel und Wesen des German private law vocabulary , 2010, p. 371
  9. ↑ Achilles Renaud, Textbook of the common German private law , Volume 1, 1848, p. 454 f.
  10. ^ Christian Daniel Anderson , Ordelbok of 1270 , in: ders. Hamburgisches Privatrecht, Teil 1, 1782, p. 8
  11. ↑ Johann Friedrich Hach (Ed.), Das alte Lübische Recht , 1839, p. 258
  12. ↑ "With hand, with straw, with mouth, with knife ... and with money thrown up in the air" is to be carried out: Hermann Aubin (Ed.), Die Weistümer des Kurfürstentums Köln , Volume 1, 1913, p. 229
  13. ↑ Georg Beseler, System des gemlichen Deutschen Privatrechts , Volume 1, 1866, p. 348 (FN 24)
  14. ↑ Johann Heinrich Zedler, Great Complete Universal Lexicon of All Sciences and Arts , Volume II, 1732, Col. 798
  15. ↑ Ulrike Köbler, Werden, Wandel und Wesen des German private law vocabulary , 2010, p. 372
  16. ↑ Friedrich Carl von Savigny, System of Today's Roman Law , Volume III, 1840, p. 321
  17. ↑ Susanne Frank / Thomas Wachter (eds.), Real Estate Law in Europe , 2015, p. 1002