Real law (Germany)
The most significant are the rights in rem, which relate to the legal assignment of things (cf. BGB ) to persons. A subset of the rights in rem are the subjective rights in rem. These are rights that are only available to the respective owner of a piece of land (e.g. easement), but not to anyone else.
The property law is the Civil Code in the third book (from recorded BGB). Real rights also arise outside of the property law of the BGB. For example, the creator's copyright is also a real right. As the legal position of the individual right holder protected by the legal community , the right in rem is therefore a case of subjective law .
The most significant example of a right in rem in practice is property . The thing is assigned to the right holder as his property, so that he can deal with the thing at his discretion and exclude any third party from the influence (cf. BGB). Like every subjective right, however, the right of property cannot be granted without restrictions, which the law also expresses in that the exercise of the right of property is limited to conflicting legal provisions or the rights of third parties. In addition to this restriction under private law, there is also the constitutional social obligation of property ( (2 ) of the Basic Law ).
The condominium is a special form of land ownership. It is the co-ownership of a plot of land to the private property is connected to an apartment. It is regulated by law in the Condominium Act (WEG).
Partial ownership is, in accordance with(3) WEG, partial ownership of a property that is linked to separate ownership of rooms not used for residential purposes (e.g. office rooms).
Limited rights in rem
A number of other rights are derived from the absolute right of property, which - in relation to property - have only limited rights.
The limited real rights have been split off from property and have become legally independent. These grant the right holder only limited legal access to the item, which is designed according to the type of law in question, which in turn takes precedence over the comprehensive right of the owner, which in turn restricts this. The limited rights in rem are therefore encumbrances on property. They authorize the use, acquisition or exploitation of the encumbered property. The type constraint prevailing in property law only allows a manageable catalog of limited real rights, which cannot be expanded at will.
A distinction is made between the following types:
- Usage rights :
- Purchase rights:
Exploitation rights :
- Real load according to § ff. BGB
- Property liens :
- Furniture liens:
Creation of limited real rights to land
- Real agreement according to , ff. BGB
- Entry of the right in the land register , BGB
- Agreement at the time of registration
- Authorization of the customer.
While for legal transactions in general the principle of freedom of form is, however, the principle of freedom of form does not apply to most real right business. All legal transactions associated with real estate or rights equivalent to real estate are subject to the formal requirement of at least notarial certification or even certification . The reason for this is that most legal transactions in rem are complicated and therefore require instruction from a notary .
- Motives for the BGB, Official Edition , Volume 3, 1888, p. 7