Mortgage (Germany)

from Wikipedia, the free encyclopedia

A mortgage is according to German property law , a mortgage that as collateral to secure a debt or a loan is used and on land or land rights overloaded .

General

The German Civil Code (BGB) known as mortgages the mortgage , mortgage (with the lower mold land charge ) and annuities . Only the security land charge, land charge and mortgage can be used as loan security. In the banking sector, the security mortgage has prevailed in 90% of cases. The mortgage still occurs sporadically in mortgage loans from real estate banks such as mortgage banks and in real estate financing through life insurance . Colloquially, the term “mortgage” is often used when referring to a land charge.

The mortgage can be ordered as a real estate lien on land and land rights. The latter property rights, which can also be covered by mortgages, include apartment ownership , partial ownership , heritable building rights , mine ownership and ship ownership (“ ship mortgage ”; Section 24 SchiffsRegG).

history

The mortgage is probably an invention of Attic moneylenders. As a pledgee, you received a pledge without possession on the debtor's property . If the debtor could not repay the loan secured by the mortgage, his property fell to the pledgee; the publicity of this right was established by setting up pillars. Solon spoke in a poem about tearing out mortgage markers ( Greek hóroi ) in Attica, dating from around 600 BC. BC indicated the encumbrance of a property with a mortgage. The Greek lien knew the sale of a property to the pledgee with the right of repurchase or the mortgage, which was the only of the two to gain in importance.

Under Emperor Julian (360–363 AD ), the non-possessory lien came from Greece to Italy ( Latin ipotheca ) from the Roman eastern provinces . Ulpian made a clear distinction between the property pledge ( Latin pignum ) and the unpossessional pledge "ipotheca". From Italy, this credit security spread across Europe, although it changed its Greek name only slightly ( French hypotheque , Spanish hipoteca , German  mortgage , Dutch hypotheek ). It can be seen that it first appeared in Flemish in 1563 before it appeared in Austria in 1616 as “hypotheca” .

The Prussian Mortgage and Bankruptcy Code of April 14, 1722 regulated the mortgage system for the first time. It stipulated that a complete land and mortgage book was to be set up at every court dealing with the mortgage system, which should contain all the properties in the district with precise names and numbers. The mortgage only became widespread when the administration deemed the establishment of mortgage books necessary, which began in May 1742. In 1762, Johann August von Hellfeld defined the “mortgage books” as “certain public books produced by the authorities”. The General Prussian Land Law (APL) of June 1794 generally referred to the "pledge right" as the right in rem that someone "is granted to someone else's thing to secure his claim" (I 20, § 1 APL). When registering land, "the creditor has the right to the mortgage" (I 20, § 8 APL). The Saxon "Law on the Land and Mortgage Books and the Mortgage System" of November 1843 stipulated that mortgages could only be ordered on land and rights equivalent to land for which a land or mortgage book was created (Section 29).

The BGB, which came into force in January 1900, largely adopted the provisions of Roman law that begin with a legal definition of the mortgage in Section 1113 BGB.

Content of the mortgage

Of essential importance for the mortgage are questions about accessory nature, protection provider, origin and liability association.

Binding to demand

The mortgage is a natural loan security that is expressly provided for by the law, because the BGB requires the existence of a claim (a loan) in Section 1113 (1) BGB. With the passage there “[...] because of a claim to which he is entitled [...]”, the law elevates the security purpose of the mortgage to the legal reason ( cause ) for its order, its continued existence, its transfer and its lapse. It is therefore a legal security agreement, so that the requirements for a contractual security agreement may be lower. This close connection between the claim and the mortgage is called accessory , because the mortgage cannot exist without a claim, the mortgage claim cannot exist without a mortgage. If the mortgage is entered in the land register, but the secured loan has not yet been valued or the loan has been repaid and the mortgage has not yet been canceled , the property owner is entitled to it as an owner's mortgage ( Section 1163 (1) BGB). However, since the property owner can not have any (mortgage) debt against themselves, these owners mortgage converts in a legal seconds in an owner mortgage to ( § 1177 para. 1 sentence 1 BGB), which can be forderungslos. A transfer of the claim is only possible in connection with the mortgage securing it ( § 1153 Abs. 2 BGB).

Collateral provider

The security provider of a mortgage is usually the property owner on whose property the mortgage is registered in favor of the security buyer. The protection seller is also usually a borrower , but the protection seller can also order the mortgage as security for a loan to a legally independent borrower. In this case, if the security provider repays the borrower's mortgage-backed debts to the lender from his own assets, a statutory owner mortgage arises because the owner acquires the secured credit claim - by way of a legal session - and with it pursuant to Section 1143 (1) sentence 2, § 774 , § 412 , § 401 Paragraph 1 BGB, also the mortgage in the form of the owner's mortgage.

Emergence

The mortgage is materially and legally created through agreement and registration in accordance with Section 873 (1) BGB. Thereby the agreement takes place between the property owner and the security buyer (creditor), according to which the property owner wants to encumber his property or right to a property with a mortgage in favor of the obligee and the obligee accepts this. The entry of the mortgage in Section III of the Land Register is also required to be effective. Formally and legally sees the Land Register Code (GUI) provides that the creditor or the property owner the application for registration (must ask the Land Registry § 13 1 para. GBO) and that the property owner as concerning the registration granted ( § 19 GBO). When it is registered, it is given the status it is assigned according to the statutory order of precedence .

Liability Association

In the context of the mortgage, the collateral taker is liable in addition to the property, its essential components ( Section 1120 BGB), the property accessories ( Section 1120 BGB), and according to Section 1123 BGB the rent and lease claims (for rented or leased objects on loan ) According to § § 1127  ff. BGB, insurance compensation , in particular building insurance ( § 1128 BGB) and other damage insurance ( § 1129 BGB), is also liable . This can mean that, in exceptional cases, movable objects (or animals ) can also be encumbered with a security mortgage.

transmission

Economic reason for the transfer of a mortgage can factoring , credit trading , credit repayment or rescheduling to be (for example if another bank for a loan with a lower loan rate or generally more favorable loan terms offered).

The mortgage is transferred by assigning the secured claim. For the effective transfer of a letter mortgage - this form of mortgage is the norm in practice - the assignment declaration must be issued in writing . In addition, the mortgage letter must be handed over to the buyer . When the claim is transferred to the purchaser, the mortgage is transferred to the new owner. This statutory rule of the mortgage is known as a commercial mortgage . When transferring them, the problem arises that, if the mortgage is strictly dependent on the claim, the purchaser cannot rely on the content of the land register because he would always have to check whether the personal claim (still) exists. To overcome this difficulty, according to the BGB, the public belief in the correctness of the land register for the mortgage extends to the claim. The mortgage can therefore also be acquired in good faith if, contrary to the land register, the claim no longer exists. This is referred to as a debt-denied mortgage. In the case of book mortgages, however, the entry of the assignment in the land register is constitutive ( Section 1154 (3) BGB). The change of ownership is only complete once this entry has been completed.

species

A distinction is made between letter and book mortgages. The normal case is the letter mortgage , in which the land registry issues a mortgage letter ( Section 1116 (1) BGB), which reflects the content of the entry in the land register. The letter mortgage only becomes marketable through the mortgage letter, because according to Section 1154 (1) BGB, the claim secured by mortgage is transferred to a new creditor by assignment , the mortgage follows (because of its accessory nature) according to Section 1153 (1) BGB. This assignment also requires an agreement and the handover of the mortgage letter to the new creditor. The mortgage letter is thus a rectal paper . An entry of the assignment in the land register is not required. The obligee does not acquire the letter mortgage until the mortgage letter is handed over to him ( Section 1117 (1) BGB); this also applies to a pledging or pledging of the mortgage ( Section 1274 BGB, Section 830 ZPO). The issuance of the letter can be excluded by agreement and entry ("without letter") in the land register ( Section 1116 (2) BGB); then it is a book mortgage .

Going out

The mortgage expires when it is canceled ( Section 1183 BGB), satisfaction of the obligee from the property in foreclosure ( Section 1181 (1) BGB) or failure in foreclosure if it is not in the lowest bid ( Section 92 (1) sentence 2 ZVG ). For the deletion of the mortgage, a declaration of cancellation by the beneficiary and the entry are required in terms of substantive law ( Section 875 (1) BGB). In addition, the formal and legal application of a party involved (Section 13 (1) GBO) and the approval of the person affected by the deletion (creditor) are required (Section 19, Section 29 (1) GBO; authorization for deletion ). According to the material and formal principle of consensus, both the declaration of annulment and the application and approval must be aligned with the deletion of a certain land register law.

Recognition under banking supervisory law

Mortgages are mainly used as collateral for credit institutions , whereby residential or commercial properties are possible as collateral and the mortgage value of the property is in the foreground. According to Section 18a (4) of the KWG , credit institutions are obliged to carry out a particularly prescribed creditworthiness check for consumer property loan contracts , in which debt ratios such as the debt service coverage ratio must also be taken into account.

General

Collateral in force since January 2014 banking supervisory law as a credit risk mitigation techniques . If credit collateral is recognized as a credit risk mitigation technique by the Capital Adequacy Regulation (CRR) applicable in all EU member states , it leads to a lower level of equity capital at banks compared to unsecured loans . As a result, secured loans can be granted with a lower interest rate .

Mortgages belong to the credit risk mitigation techniques “with security deposit ” ( real securities ; Art. 4 Para. 1 No. 58 CRR). Art. 194 CRR establishes principles for the supervisory recognition of credit risk mitigation techniques, after which loan collateral in particular in all jurisdictions legally (English valid ) and enforceable (English enforceable must be) sufficiently liquid , over time a stable value and a credit event promptly recyclable need to be. The positive correlation between the collateral and the borrower's creditworthiness must not be very high (Art. 194 (4) CRR). In case of doubt, any legal risk must be excluded by means of a legal opinion .

Security land charge

Mortgages are considered to be liens which, according to Art. 125 (1a) CRR, are given a risk weight of 35% of the book value if they are used or rented as residential property by the owner , the mortgage lending value of the property does not depend significantly on the creditworthiness of the borrower and the risk of the Borrower does not depend significantly on the property (Art. 125 Para. 2a and 2b CRR). The SolvV , which has been in force since January 2014 , clarifies the requirements that a mortgage lending value that can be taken into account for the purposes of the CRR must meet. These requirements are finally listed in Section 22 SolvV. After that, the mortgage lending value

  • according to § 16 para. 2 sentences 1 to 3 PfandBG in connection with the mortgage lending value determination ordinance or
  • have been determined in accordance with Section 7 ( 7 ) of the Building Societies Act, taking into account a provision approved by BaFin in accordance with Section 5 (2) No. 3 of the Building Societies Act or
  • relate to a property in another country of the European Economic Area and have been determined on the basis of strict legal or administrative provisions applicable in this country, which BaFin has recognized as being equivalent to the Mortgage Lending Value Determination Ordinance or
  • be a sustainably achievable value determined differently, which meets the requirements of Section 16 (2) sentences 1 to 3 PfandBG.

Section 21 (3) no. 1 KWG also refers to the PfandBG that is now in force.

The lending limit allowed under Art. 125 Para. 2d CRR 80% of the loan value or market value does not exceed. According to Art. 126 (1a) CRR, commercial real estate has a risk weight of 50% of the market value (or 60% of the mortgage lending value) with the same correlation requirements as for residential real estate. According to Art. 126 Para. 2b CRR, the repayment must depend on the ability of the borrower to be able to repay the loan essentially from sources other than property , special or project finance . In the event of default, both risk positions are assigned a risk weight of 100% (Art. 127 Paragraphs 3 and 4 CRR). For all loans exceeding the lending value, the risk weight for unsecured loans must be used as a basis in accordance with Article 124 (1) CRR. In addition, appropriate damage insurance (Art. 208 (5) CRR) is required for the property, an independent expert has to prepare a collateral assessment (Art. 229 (1) CRR) and an annual (commercial property) or every three years (residential property) monitoring the lender is required (Art. 208 CRR).

Others

The word mortgage is also used synonymously as a burden or burden in the sense of “someone has a heavy mortgage to bear”.

See also

literature

Individual evidence

  1. ^ Iwona Kolodziejczyk: The security land charge in German law and in the Polish draft law . 2010, p. 63.
  2. ^ Justus Hermann Lipsius: The Attic law and legal process . 1905, p. 694.
  3. ^ Beat Näf: History of antiquity. 2006, p. 108.
  4. ^ Herbert Hausmaninger, Walter Selb: Roman private law . 2001, p. 181.
  5. ↑ Ulpian: Digest , 13, 7, 9, 2.
  6. ^ Country table of the Archduchy of Austria ob der Enns, 1616, III 28 § 31.
  7. ^ Paul Parey: The organization of authorities and the general state administration of Prussia , VI 2, 1894, p. 493.
  8. ↑ Johann August von Hellfeld: Complete collection of all common and usable rights in salvation. Roman empires. 1762, Vol. III, p. 1900.
  9. ↑ General Land Law for the Prussian States, Volume 1, 1794, p. 851.
  10. ^ Jan Wilhelm: Property Law. 2002, p. 787.
  11. ^ Kurt Schellhammer: Property law according to the basis of claims . 2013, p. 288 Rn. 583.
  12. ↑ Klaus Tiedtke in JURA 1983, pp. 460, 472.
  13. ↑ Wolfgang Brehm, Christian Berger: Property Law . 2006, p. 244, RN. 18th