Reservation

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Entry of a reservation for two buyers in the land register (extract from the electronically managed Baden-Württemberg land register)

In the land register law, a reservation is the real securing of a contractual obligation to the entry or deletion of a right to a property , right to a property or to a property right or to change the content or the status of such a right.

General

The legal institution of reservation is one of the most controversial areas of law in property law . This is due to the fact that the reservation cannot be classified in the existing legal system . Opinions about the nature of the reservation can be divided into two broad groups. The supporters of one group start from the basic idea that by registering the reservation, the mandatory claim is transformed into a right in rem. The other group sees an obligation in the reservation .

The load with a reservation done through registration in Division II of the land register . The reservation is the only provisional entry that only remains in the land register for a relatively short time. If the intended change in law occurs, the reservation must be deleted again.

history

The reservation ( Latin praenotatio ) is one of the few legal terms that do not originate from Roman law . Rather, their origin lies in the German-speaking particular law , namely in the Austrian Codex Theresianus of August 1766, in the Prussian Mortgage Regulation of December 1783 and the General Prussian Land Law (APL) of June 1794 as a "Protestation". The result was that the “protestation” secured the beneficiary's rank (I 20, § 421 APL). The Austrian ABGB of January 1812 presented a legal definition according to which someone could effect a conditional entry in the public book, "which is called prenotation" (§ 438 ABGB).

The Prussian land register regulation of May 1872 first used the term reservation. The reservation was already controversial during the preparatory work on the BGB . While in 1888 a reservation as “provisional entry” to secure mandatory rights was rejected, it was later demanded to be included in the BGB because it served to protect existing rights to land. The BGB, which came into force in January 1900, regulates reservations in six paragraphs from Section 883 BGB. The question of the legal nature of the reservation was already controversial in 1902. “It is listed in property law (Book 3), under the general provisions on rights to land (Section 2); but it is not called right in the matter, not burden, not even a registered right ”.

Until the introduction of the right to cancellation from § 1179a BGB and § 1179b BGB in January 1978, the deletion flag was the most common type of flag because it was always entered in the case of priority or equal mortgage liens . Today the priority notice is the most common type of reservation.

Germany

meaning

The reservation makes it possible to minimize the risk for the parties involved in real estate transactions. The entry of the reservation in the land register ( § 883 Abs. 1 S. 1 BGB) gives the future beneficiary a secure legal position, which on the one hand protects him from later deterioration and on the other hand enables him to check before rendering his consideration whether it has been up to this point in time something has happened for which he can withhold his consideration.

The necessity and importance of the reservation result from the fact that in German law the disposal of immovable property ( real estate ), i.e. in particular land, is a multi-stage and time-extended process over which the contracting parties have only limited influence. The disposition itself is initially preceded by an obligation under the law of obligations , which is only to be fulfilled through the disposition of the property or a right to this property ( principle of separation ). For this ruling to be effective, it is not only necessary for the parties to reach an agreement in rem , but also for the change in the law to be entered in the land register ( Section 873 BGB), which is carried out by the land registry . This in turn depends on other requirements, for example when purchasing a property on submitting a clearance certificate from the tax office . In the meantime, there may be changes in the legal situation that make the originally planned transaction impossible. For example, the owner of a right may have made adverse dispositions in the meantime, the right may have been accessed by way of foreclosure , the parties may have become insolvent or the consideration promised for the disposition may fail due to inability or unwillingness to pay.

By using a reservation, the parties are able to draft contracts that exclude these risks. For this purpose, a reservation is granted for the person who has been promised a disposition and entered in the land register. With this entry, the reservation becomes effective and means that dispositions and enforcement measures are still possible from this point in time (no "land register block"), but are ineffective in relation to the secured ( Section 883 (2) BGB); Since the reservation can be seen in the land register, enforcement creditors or owners of rights registered in the meantime are also not worthy of protection in this respect. Even a later insolvency does not do any harm from this point in time ( Section 106 ). The holder of the reservation only needs to check whether there have been any dispositions contrary to the contract up to this point in time and, if this is not the case, can provide his consideration without risk. Once the consideration has been provided, the promised disposal can again be made without risk.

For example, the acquisition of land for the buyer the risk, in the case of intermediate its purchase price to lose without the land is him about suitable as promised, because the seller is sold instead to another buyer, it contrary to agreement with mortgages charged or to Bankruptcy or foreclosure is coming. Because the obligation under the law of obligations to transfer ownership to the buyer does not prevent the seller from still disposing of the property in favor of a third party. Third parties can also foreclose on the property . This would make it impossible for the buyer to fulfill the contract ( Section 275 BGB). This would only be left with a claim for damages. Conversely, if the seller were to make advance payments and transfer ownership of the property first, there is a risk for him of losing his property without the purchaser paying the promised purchase price. The use of the reservation is recommended here: After the reservation has been entered, the buyer can check the land register to see whether there have been any disadvantageous dispositions up to this point in time. If this is not the case, he can safely pay the purchase price because later dispositions would be ineffective against him. After receipt of the purchase price, relocation and registration of the property web can be made so that ownership of the property is transferred.

Legal nature

There is a dispute in jurisprudence about the legal nature of the reservation . According to the prevailing opinion, it is not a limited right in rem , it merely aims at a later change in law in rem. Because it does not entitle or oblige the respective owner of the property or the holder of any other right to the property, but only the parties to the reserved claim. However, it is also not a mandatory right , because it also acts against third parties due to the limitation of the owner's power of disposal. The reservation is therefore predominantly classified as a security means of its own type (" sui generis "). It is a security interest of its own kind, which mixes elements of debt and property law. As measured by their legal consequences which flag ensures the claim to a later real right change ( conveyance , recording of a mortgage , deletion of an easement ). With its rank-securing effect, it protects against subsequent adverse dispositions by the person making the reservation and thus ensures the future fulfillment of the reserved claim.

Origin and requirements of the reservation

Existence of an eligible claim

The reservation serves to secure a claim ( § 883 Abs. 1 BGB). The existence and scope of the reservation therefore depend on the existence of the secured claim (strict accessory nature of the reservation). Is required in particular that the underlying Preregistration property purchase agreement form effectively was closed, so all the essential elements of the contract notarized certified have been.

Approval of the reservation

The reservation arises constitutively by registration in the land registry, to which substantive law no real agreement to § 873 BGB, but only one license is required ( § 885 para. 1 sentence 1 BGB).

In terms of procedural law - in addition to an application in accordance with Section 13 GBO - an authorization according to Section 19 , Section 29 GBO is required , which regularly coincides with the substantive authorization, but must be differentiated from it in legal terms.

Conversely, these legal acts are also required in the event that a reservation is deleted.

The reservation becomes obsolete and can therefore be deleted when the real claim secured by it (e.g. the transfer of ownership of the property) has been completed in the land register. It is not independently transferable , but is transferred to the purchaser with the transfer of the claim to be secured according to § 401 BGB. If the person concerned does not declare the permit voluntarily, it can be enforced by an interim order of the district court in whose district the property is located ( § 885 BGB, § 942 Abs. 2 ZPO).

Entry in the land register

Finally, the reservation must be entered in the land register ( Section 883 (1) sentence 1 BGB). The entry is made in the 2nd section . The reservation becomes effective with the entry, the entry has a constitutive effect ( Section 892, Paragraph 1, Sentence 2, Case 1 BGB).

Authorization of the approver

The approval is an order according to § 893 Case 2 BGB. The good faith in the authorization of the approver is therefore protected ( § 892 BGB). The authorization is therefore effective even if there is no power of disposal , unless the buyer was aware of the missing power.

The honest acquisition of a reservation enforced by way of an interim injunction is not possible, however, since there is no legal acquisition, which is required by § 892 BGB.

Any restrictions on disposal that could destroy good faith must be evident from the land register in order to be effective ( Section 892 (1) sentence 2 BGB).

species

  • Priority notice : It is used for already surveyed land to secure the claim on over ownership ( acquisition reservation ). In the case of unmeasured land areas , one speaks of a notice of conveyance, but in practice both terms are used synonymously. The notice of conveyance secures the right to procure property, but is a security interest of its own kind and not a minus of the same nature as compared to property .
  • The legally regulated deletion notice (§ § 1179 ff. BGB) is used to delete a mortgage when it has become the ultimate owner charge.
  • The official reservation ( Section 18 (2) GBO) is to be entered ex officio if another entry is requested at the land registry before processing an application , which affects the same right.
  • The reservation according to § 28 BauGB is necessary if the municipality wants to make use of its statutory right of first refusal .
  • The reservation according to § 34 Abs. 1 Nr. 3 VermG: In the case of the re-transfer of real estate within the scope of the regulation of open property issues through expropriation , the entry of a reservation is possible with immediately enforceable official decisions.

Notification of cancellation and the right to cancellation can be directed against a mortgage as well as against a land charge / security land charge ( Section 1192 (1) BGB). In accordance with Section 1179a, Paragraph 1, Clause 3 of the German Civil Code, the claim for cancellation is secured in rem as if a reservation had been entered in the land register for it at the same time as the beneficiary lien.

Effect of the reservation

Rank effect

The rank of a right that is entered in the land register is determined by the time of entry ( Section 879 BGB). According to § 17 GBO , the entry applied for later may not be made before the earlier application has been dealt with. If a reservation is entered in the land register, the subsequent entry as owner acts back to the time of entry of the reservation ( Section 883 (3) BGB).

Relative restriction on disposal

A disposition that is made after the reservation has been entered about the property is, according to Section 883 (2) sentence 1 BGB, “ineffective to the extent that it would thwart or impair the claim” (relative ineffectiveness). Whether and to what extent the disposition thwarts or impairs the secured claim is determined by the content of the claim.

A disposition aimed at further transfer of ownership of the property is therefore ineffective vis-à-vis the property purchaser entitled from the reservation. The seller can therefore continue to provide ownership of the property to the person authorized to reserve the property, who has been secured by registration.

The further ruling is effective against any third party and is entered by the land registry , even if it violates the prior notice. There is no so-called land register block. The person authorized to reserve can, however, request the consent of the third party to delete this entry ( Section 888 BGB). This also applies to dispositions by way of foreclosure, for example to the creditor of a compulsory mortgage or to dispositions of an insolvency administrator ( Section 883 (2) sentence 2, Section 888 (1) BGB).

The reservation expires

The reservation expires with the entry of the secured right, i.e. when the buyer is entered as the new owner or with its deletion. The seller affected by the reservation has a right to cancellation if the secured claim is opposed by a permanent objection ( § 886 BGB), for example if the buyer's claim to transfer of ownership of the property in accordance with 196 BGB is statute-barred or if the buyer does not pay the purchase price ( defense of the non-fulfilled contract ).

Due to the strict accessory nature, the reservation expires with the expiry of the secured claim, for example if the property purchase contract is effectively challenged by the seller or he withdraws from the contract , furthermore after the revocation of an injunction ( § 936 , § 927 ZPO).

In order to prevent the seller from having to take legal action to delete the notice of conveyance in the event that the buyer does not pay, the notarial purchase contract often contains a clause that provides for a cancellation permit or a corresponding power of attorney from the notary in such a case.

Transfer of the reservation

The strictly accessory reservation is tied to the secured claim . If the claim to be secured is assigned ( § 398 ff. BGB), the reservation is transferred analogously to § 401 BGB. With the entry of the new claimant, the land register is corrected in this respect; in this case, the entry does not have a constitutive effect.

Although the reservation is not passed by legal transaction here either, but by virtue of the law, case law considers an acquisition in good faith - unlike the reservation enforced by way of an injunction - to be possible. That legal acquisition is compatible with the protection of good faith results, for example, from § 1155 BGB. In addition, the legal regulation of § 401 BGB only corresponds to what reasonable parties would agree on the transfer of the reservation. In this respect, equal treatment with the legal acquisition is justified.

Austria

In Austria, too, registration in the land register in accordance with Section 431 of the Austrian Civil Code is required for the legal acquisition of ownership of an immovable property .

The entry of a reservation ( prenotation ) serves the conditional acquisition of rights. The registration only effects the acquisition of property ( incorporation ) after certain conditions have been met ( justification ). The reservation is made if the documents required for entry do not yet meet all requirements ( Section 438 ABGB).

In § 432 ABGB, a certified document or public document, which is necessary for entry in the land register, is required for the purchase contract. If the purchaser does not have all the documents required for the incorporation, he can still effect a conditional entry in the land register. This gives him a conditional right of ownership that protects him from dispositions by the previous owner from the time the reservation request is properly submitted. As soon as the missing documents are brought in, the conditional entry is considered “justified” and then acts like an incorporation.

Switzerland

After the conclusion of a contract under the law of obligations for a property, a provisional entry in the land register is possible to secure the imminent registration of the buyer as the new owner according to Art. 959 , Art. 961 ZGB . Such a reservation causes a "reification of obligatory rights" in the sense that third parties have to allow the reserved law to apply against them and destroys the good faith of third parties in an unencumbered acquisition of property according to Art. 973 ZGB. Because the reservation documents a limited power of disposal of the landowner due to his obligation to procure property vis-à-vis the buyer under Art. 184 OR .

The applications for entry in the land register are entered in a diary according to their chronological order in accordance with Art. 948 ZGB, in which the date and time of receipt are also recorded. This means that the priority principle ( priority effect) of the reservation is preserved ( first come, first served. )

Others

In everyday language, a reservation is also understood to mean any binding reservation .

literature

  • Dorothea Assmann: The reservation (§ 883 BGB). Mohr Siebeck , 1998. ISBN 978-3161-4698-17
  • Jürgen F. Baur : The enforcement of a notice of conveyance acquired in good faith. in: Juristentung (JZ). Mohr Siebeck, Tübingen 1967, p. 437 ff. ISSN  0022-6882
  • Rolf Espenhain: The practical case. Civil Law - The Clashing Reservations. in: Legal training (JuS). Beck, Munich 1981, p. 438 ff. ISSN  0022-6939
  • Gerald Görmer: Protection of good faith when acquiring a notice of conveyance. in: Legal training (JuS). Beck, Munich 1992, pp. 1014 ff. ISSN 0022-6939
  • Heinrich Goetzke, Norbert Habermann: The effect of the notice of conveyance acquired in good faith against the true entitled - BGHZ 57, 341. in: Juristische Schulung (JuS). Beck, Munich 1975, p. 82 ff. ISSN  0022-6939
  • Reinhard Hepting: The protection of good faith when making reservations for future claims. in: Neue Juristische Wochenschrift (NJW). Beck, Munich 1987, pp. 865 ff. ISSN  0341-1915
  • Ludwig Kempf: On the legal nature of the reservation. in: Legal training (JuS). Beck, Munich 1961, p. 22 ff. ISSN  0022-6939
  • Robert Knöpfle: The reservation. in: Legal training (JuS). Beck, Munich 1981, p. 157 ff. ISSN  0022-6939
  • Berthold Kupisch : priority notice and good faith. in: Juristentung (JZ). Mohr Siebeck, Tübingen 1977, p. 486 ff. ISSN  0022-6882
  • Gerhard Lüke : Notice of conveyance and healing of the invalid sales contract - BGHZ 54, 56. in: Legal training (JuS). Beck, Munich 1971, p. 341 ff.
  • Dieter Medicus : reservation, objection and complaint. in: Archives for civilist practice (AcP). Mohr Siebeck, Tübingen 163.1964, p. 1ff. ISSN  0003-8997
  • Wolfgang Prinz: The bona fide reservation acquisition and its legal effects. Lang, Frankfurt / Main / Bern / New York / Paris 1989. ISBN 3-631-40795-5
  • Wolfgang Roloff: The enforceability of the reservation acquired in good faith against the true entitled person. in: Neue Juristische Wochenschrift (NJW). Beck, Munich 1968, p. 484 ff. ISSN  0341-1915
  • Kurt Tucholsky : The reservation from § 1179 BGB. and their effects. Inaugural dissertation. in: Kurt Tucholsky: Complete Edition. Texts and letters. Edited by Antje Bonitz, Dirk Grathoff, Michael Hepp, Gerhard Kraiker. 22 vols. Reinbek 1996ff. Vol. 2. Reinbek 2003, pp. 208-260. ISBN 3-498-06531-9
  • Andreas Wacke : Booked black purchase and confirmation of the novation. in: Deutsche Notar-Zeitschrift (DNotZ). Beck, Munich 1995, p. 507 ff. ISSN  0340-8604
  • Sven Erik Wunner : Protection of good faith and legal nature of the reservation. in: Neue Juristische Wochenschrift (NJW). Beck, Munich 1969, p. 113 ff. ISSN  0341-1915

Web links

Individual evidence

  1. ↑ Hans-Joachim Sommerfeldt, The reservation of § 18 of the land register regulations , 1930, p. 14
  2. ↑ Hans Reichel, The reservation in the German Civil Code , in: JherJb, Volume 46, 1904, p. 59
  3. ↑ Dorothea Assmann, The reservation: § 883 BGB , 1988, p. 3 f.
  4. ^ Laws, General Land Law for the Prussian States , Volume 1, 1794, pp. 905 f.
  5. ↑ Dorothea Assmann, The reservation: § 883 BGB , 1988, p. 4
  6. ^ Motives for the BGB, Volume III, 1888, p. 237 ff.
  7. ^ Motives for the BGB, Volume III, 1888, p. 239
  8. ↑ Eugen Fuchs , Land Register Law: Commentary on the land register norms of the Civil Code and the Land Register Regulations , 1902, p. 113
  9. ^ G. Grote'scher Verlag, Contributions to the Explanation of German Law , Volume 46, Part 1, 1902, p. 561
  10. ↑ Jens Thomas Füller, Independent Property Law? , 2006, p. 99
  11. ↑ Johannes Hager : Die Vormerkung JuS 1990, pp. 429, 439
  12. ↑ BGHZ 25, 16 , 23
  13. ↑ BGHZ 25, 16
  14. ↑ Kurt Schellhammer, Property Law According to Claim Basis , 2013, p. 430
  15. ^ BGH, judgment of March 7, 2002, Az .: IX ZR 457/99
  16. ^ Rainer Schröder : Immobiliarsachenrecht Humboldt University , 2008, pp. 19/20
  17. ↑ BGHZ 25, 16, 23; 28, 182, 186; 57, 341, 343; BGH, NJW 1981, 446, 447, 448
  18. ↑ Johannes Hager : Die Vormerkung JuS 1990, pp. 429, 438
  19. ↑ BGH, decision of May 9, 2014, Az .: V ZB 123/13
  20. ↑ BGHZ 166, 319 BGH, judgment of March 9, 2006, Az .: IX ZR 11/05
  21. ↑ The right to cancellation of the person authorized to make reservations on the BGH, judgment of July 2, 2010 - V ZR 240/09, July 29, 2010
  22. ↑ Johannes Hager : Die Vormerkung JuS 1990, pp. 429, 434
  23. ↑ BGH, decision of June 21, 1957 - Az .: V ZB 6/57 = BGHZ 25, 16
  24. ↑ Johannes Hager : Die Vormerkung JuS 1990, pp. 429, 438
  25. ↑ Heinz Barta: The teaching of title and mode online textbook civil law, Chapter 2, Figure 2.16. Retrieved April 11, 2017.
  26. ↑ Reservation website of the Federal Chancellery , accessed on April 11, 2017
  27. ↑ Heinrich Honsell : Noting the mandatory transfer of ownership from the property purchase agreement in the land register in: Festschrift for Heinz Rey on his 60th birthday, Zurich 2003
  28. ↑ Caterina Nägeli / Urs Bürgi: reservation / legal information on reservation , accessed on April 11, 2017.