Leasehold

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The heritable building right ( Latin superficies ) in Germany is the right to erect or maintain a building on a piece of land , usually against payment of a regular so-called ground rent ( Section 1 (1) ErbbauRG ). From the point of view of the owner of the property, the leaseholder, the leasehold is a limited real right that encroaches on his property.

In North Friesland there is a special form of heritable building right, the Stavenrecht . In Liechtenstein, Austria and Switzerland, the facility corresponding to the heritable building right is called building law , see building law (Austria) and building law (Switzerland) .

content

The heritable building right is established by a heritable building right contract between the person entitled to leasehold ( superficiarius ) and the property owner ( dominus soli ) and subsequent entry in the land register. The heritable building right is itself treated like a piece of land (so-called right on the same property ).

The leasehold is sold as a piece of land, be inherited and charged, for example, by mortgages ( mortgage and mortgage ). It is therefore in their own land register sheet entered the so-called Erbbaugrundbuch (see section Basic Books ). Disposals on the heritable building right such. B. Disposals, encumbrances and structural extensions require the consent of the landowner if this has been agreed in the heritable building right contract (§ 5 ErbbauRG).

The legal basis for the heritable building right in Germany is the Law on Heritable Building Right (Erbbaurechtsgesetz) of January 15, 1919 in the currently valid version. With effect from November 30, 2007, the Heritable Building Right Ordinance (ErbbauVO) was renamed the Hereditary Building Right Act (ErbbauRG). Changes in content were not associated with this renaming.

The leasehold expires when the agreed time expires. Built buildings do not have to be removed from the property after the agreed time; Rather, the person entitled to leasehold generally receives remuneration for the value of the building ( Section 27 ErbbauRG). A building erected on the basis of a heritable building right is an essential part of the heritable building right (" accessory ") and not of the property ( Section 12 (1) sentence 1 ErbbauRG). The owner of the building is therefore the leaseholder and not the property owner. If the heritable building right expires, the building becomes an essential part of the property, i.e. This means that the land owner now becomes the owner of the building.

Since a building is an integral part of the property in accordance with Section 94 of the German Civil Code, ownership of the property generally also extends to the building. However, the heritable building right leads to a disintegration of ownership of the property and the building located on it and thus to an exception to this rule.

In contrast to the heritable building right, the term “ leasehold ” ( emphyteusis ) in the actual sense refers to a right to use agriculturally used land for an unlimited period of time. This historical form of land management is no longer legally permissible in Germany. Colloquially, instead, the leasehold on building plots is often referred to as "leasehold".

Land registers

The heritable building right is documented in two land registers : in the land register of the encumbered property (land register) as encumbrance in section II and in the special heritable building land register to be created ex officio for the heritable building right as a right equivalent to land ( §§ 14 ff. ErbbauRG).

In the land register, the heritable building right is entered in section II. It can only be appointed to the first rank; the rank cannot be changed either. This is to ensure that the heritable building right continues to exist in the event of a foreclosure sale of the property. Nevertheless, it is possible to deviate from the requirement of the first ranking position according to state law provisions ( Section 10 (2) ErbbauRG) if the preceding rights do not endanger the existence of the heritable building right; this non-endangerment usually has to be proven by a certificate of harmlessness .

The land register is created separately. It is structured like a normal land register. The heritable building contract, the encumbered property and the property owner are named in the inventory. The person entitled to leasehold is named in Section I. The ground rent and other rights and encumbrances with the exception of mortgage liens are entered in Section II. Section III is reserved for the property liens that encumber the leasehold.

reasons

The introduction of the heritable building right was intended to promote housing construction, on the one hand by giving financially weaker sections of the population the opportunity to build, and on the other hand by creating an instrument to combat land speculation.

In practice, the ground lease in Germany is used mostly by owners of large areas, the development potential of land to exploit economically, yet their real property to obtain permanent. Heritable building rights are therefore primarily granted by municipalities, churches and foundations, and less often by private individuals (especially noble houses) and companies. In principle, however, every property owner is entitled to order a heritable building right. With the heritable building right, withholding the property from the market for land speculation can be excluded, since the person entitled to leasehold is contractually obliged to develop the property. Occasionally the person entitled to leasehold is granted a right of first refusal for the property in accordance with §§ 1094 ff. BGB.

Cities and municipalities occasionally grant heritable building rights to non-profit associations (sports clubs, etc.) in order to create the possibility of building a club house without the association having to take the financial risk of financing the property.

Against the background of significantly increasing land prices and for the purpose of promoting and maintaining inexpensive apartments, especially in cities and metropolitan areas, the instrument of heritable building right has been experiencing a renaissance in Germany since around 2018/2019: cities and municipalities, but also federal and state governments, think - not least due to corresponding pressure from civil society - again more about land allocation under leasehold or are already practicing this more intensively.

The heritable building right offers the property owner the opportunity to impose on the person entitled to leasehold the extent to which the person entitled to leasehold can exercise his right. For example, a municipality can order the sports club to only use the clubhouse as such. Otherwise, the sports club acts contrary to the contract and, if this has been agreed, must transfer the heritable building right back to the municipality (so-called reversal ).

Ground rent

The leaseholder receives the ground rent (lat. Salarium ) for making his land available to the person entitled to leasehold ; this is a remuneration in the form of a regular service ( Section 9 (1) ErbbauRG). The ground rent has a real effect by entering it as a real load in the land register (real load Section II). As a rule, the ground rent is set as a percentage of the current land value at the beginning of the term.

Before October 1, 1994 (when the Property Law Amendment Act came into force), the real ground rent had to be determined in advance for the entire term of the leasehold. An increase in the ground rent could only be achieved through contractual value protection agreements, whereby the right to increase in the land register could be secured by means of a reservation. Since October 1, 1994, an adjustment clause can be made to the content of the real ground rent. Heritable building rights without an adjustment clause can be adjusted according to the case law of the Federal Court of Justice in the event of a decline in purchasing power of more than 60% due to the loss of the business basis. Until December 1999, the decisive factor was the cost of living index for a four-person middle-income household; since then the consumer price index has been decisive. As a result of this change, the chaining month must be taken into account when calculating. Is the price index for 2005 z. B. 108.3 and for the year of the heritable building right contract 1965 z. B. 33.7, the calculation of purchasing power is 221.37% = (108.3 / 33.7 - 1) × 100%. Since the loss of purchasing power is greater than 60%, an adjustment of the ground rent may be required. According to the case law of the BGH, an increase of 379.51% would have to be made here. The statute of limitations, both in rem and a possible debt-law claim to payment of ground rent, is based on § 195 BGB and is therefore three years.

Terms

The term of a leasehold contract is freely negotiable between the leaseholder and the leaseholder. A common term is 99 years. The heritable building right can be sold and - as the term suggests - inherited, as it is a right that is equal to land. Disposals, encumbrances and structural extensions require the consent of the property owner.

A heritable building right contract can end with the expiry of a period of time or the right to renounce.

If the heritable building right contract ends due to the agreed term or the right to revert, the giver of the heritable building right is obliged to provide the heritable building right holder with appropriate compensation for developments on the property; provided that the market value of the property has increased as a result of the development of the leaseholder (as a rule, compensation of two thirds of the market value must be paid). If the leasehold contract ends with the lapse of time and the leaseholder is not able to pay an appropriate discounted compensation, he must give the leaseholder the opportunity to renew the leasehold contract. In this case, no compensation is due from the leaseholder. If the leaseholder contradicts this possibility to extend the leasehold contract, the leaseholder is released from the obligation to an appropriate compensation.

special cases

Sub-leasehold

The object of encumbrance here is not a plot of land, but a heritable building right (upper heritable building right.)

Total leasehold

This is a uniform leasehold on several independent plots.

Neighbor heritable building right

A building is to be erected on several pieces of land. In contrast to the general heritable building right, individual heritable building rights are assigned to each affected property.

rating

Determination of market value

Models for determining the market value of heritable building rights result from the 2006 Valuation Guidelines (WertR06). These provide for two evaluation models:

  1. Valuation using the comparative value method in accordance with Section 4.3.2.1 WertR06
  2. Valuation according to the financial mathematical method in accordance with section 4.3.2.2 WertR06

In the comparative value method according to WertR06, the market value is derived from comparative properties (direct comparative value method). Here, comparative properties are to be selected, which are as

  • within the same type of property,
  • with about the same amount of the achievable ground rent,
  • from areas with roughly the same land value level,
  • with approximately the same remaining term and
  • with approximately the same options for adjustment (value retention clauses)

Possibly. the market value can be determined by applying a comparison factor for the heritable building right to the value of the unencumbered developed property (indirect comparison value method).

The mathematical method according to WertR06 is based on the idea that the value of the heritable building right is composed of a land value share and a building value share. To take into account the situation on the property market, a market adjustment factor (mathematical heritable building right factor) is to be applied. Surcharges / deductions due to contractual features must then be taken into account. With regard to the arithmetic order in accordance with Section 8 (2) ImmoWertV, special property-specific property features must be regularly objectified after the market adjustment.

The financial mathematical method according to WertR06 has received increasing criticism in recent years. It can be seen that expert committees are looking for solutions with alternative evaluation models. Reference is made here, for example, to the state property market report 2019 of the upper committee of experts for the area of ​​the state of Rhineland-Palatinate, according to which the material value of the heritable building right is determined using a deductive evaluation method. Regardless of the model, the results of the appraisal procedure used can only be plausibly presented if the expert report reveals which condition features are normal and which condition features are unusual, i.e. H. deviating from the usual, retrospectively under the special property-specific property features i. S. v. Section 8 (3) ImmoWertV.

Determination of the mortgage lending value

Heritable building rights are rights equivalent to land and can also be borrowed as such. Until 2005, the limits were regulated in § 21 ErbbauVO (old version) as follows: "Heritable building rights can be borrowed from mortgage banks in accordance with § 11 and 12 of the Mortgage Bank Act if repayment in accordance with § 20 Paragraph 1 No. 3 and 4 ErbbauRG has been agreed will be. "Due to the reorganization of the Pfandbrief Law and the associated abolition of the Mortgage Bank Act, however, this passage has been changed (" Heritable building rights can be borrowed from insurance companies in accordance with Section 54 of the Insurance Supervision Act, if one of the provisions of Section 20 (1) No. 3 and 4 ErbbauRG appropriate repayment is agreed. "). According to Section 20 (1) No. 3 and 4 ErbbauRG, heritable building rights may then be lent if the loan is repaid no later than 10 years before the heritable building right expires. Furthermore, it must be ensured that the scheduled repayment of the loan does not exceed the book-based depreciation of the building from an economic point of view.

In recent times, the valuation has generally been carried out according to the procedure described in the valuation guidelines. The leasehold is initially valued according to the real value method or the income value method such as full ownership, i.e. In other words, the property and the building are valued as if there were no heritable building rights.

The following amounts are then deducted from the value determined in this way:

  1. The land value discounted on the valuation date at the end of the leasehold.
  2. The discounted value of the building on the valuation date, insofar as it is not compensated by the leaseholder, is determined using the discounted earnings method .
  3. A discount of at least 10% of the initial value for the general disadvantages and disabilities that the heritable building right brings with it compared to full ownership. These disadvantages and handicaps must be assessed in detail on the basis of the heritable building contract and taken into account, so higher discounts can also be made.

In this way, you get the mortgage lending value of the leasehold, which is free of interest . H. the value at a (fictitious) ground rent of 0%. However, since a ground rent is usually agreed, this must also be appropriately taken into account in the valuation. To do this, the present value of the ground rent is first calculated.

Depending on the contractual agreement in the leasehold contract, different cases can now arise:

  1. The ground rent takes precedence over any land charges.
    In this case, the calculated present value of the ground rent must be deducted as a pre-load from the portion eligible for real credit (mortgage lending value × 60% less the pre-load value).
  2. The ground rent follows any land charges in the range.
    1. The ground rent is agreed for a foreclosure sale. In this case, the ground rent also remains in the event of a foreclosure auction of the leasehold. This can be done through a corresponding standstill declaration from a public-law leaseholder or through an agreement in accordance with Section 9 (3) No. 1 ErbbauRG. If this agreement is not in place, the capitalized ground rent must be deducted as value-reducing. If there is an agreement in accordance with Section 9. Paragraph 3 No. 1 ErbbauRG, the ground rent is not capitalized and deducted in accordance with Section 19 Paragraph 2 ErbbauRG (2nd sentence).
    2. The ground rent is not agreed for a foreclosure sale. In this case, the ground rent is taken into account.

In the case of smaller properties, for the sake of simplicity, the land value is often completely deducted and no further discounts are made due to the ground rent.

Tax value determination according to BewG

According to the Valuation Act, the tax values ​​of a heritable building right are determined for the purposes of inheritance and gift tax as well as real estate transfer tax ( §§ 192 ff. BewG).

Sales tax and real estate transfer tax

The leasehold is not subject to sales tax . However, the appointment or transfer of the heritable building right is subject to real estate transfer tax .

literature

Web links

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

Individual evidence

  1. ↑ von Oefele, Winkler: Handbuch des Erbbaurechts . 4th edition. CH Beck, Munich 2008, ISBN 978-3-406-56755-1
  2. ^ Association funding guidelines of the city of Metzingen ( Memento from February 14, 2006 in the Internet Archive )
  3. ↑ Kathrin Senner: With heritable building rights to more affordable housing. In: Forum Wohnen und Stadtentwicklung , Heft 4 (2019), pp. 201–204
  4. ↑ Daniela Brahm: Forward, leasehold! - The “City Rethinking Initiative” and the struggle for a social land policy in Berlin. In: Brigitta Gerber and Ulrich Kriese (eds.): Keeping the ground - shaping the city. Zurich 2019, pp. 376–384
  5. ↑ Bernadette-Julia Felsch: For a just land policy - the Munich initiative for social land law, affordable housing and livable cities. In: Brigitta Gerber and Ulrich Kriese (eds.): Keeping the ground - shaping the city. Zurich 2019, pp. 385–392.
  6. ^ BGH, judgment of February 24, 1984 , Az. V ZR 222/82, guiding principle: BGHZ  90, 227.
  7. ↑ according to Ralf Kröll / Andrea Hausmann: Rights and encumbrances in determining the market value of properties , 4th edition, 2011 ( ISBN 978-3-8041-5203-8 ), the following decision is relevant: BGH, judgment of 23 May 1980 , Az. V ZR 20/78, with reference to BGH, Az. V ZR 237/70 and Az. V ZR 129/76.
  8. ^ BGH, judgment of October 9, 2009 , Az. V ZR 18/09, full text.
  9. ^ V. Oefele, Winkler, Schlögl, § 3 Rn. 14 ff.
  10. ^ V. Oefele, Winkler, Schlögl, § 3 Rn. 37 ff.
  11. ^ V. Oefele, Winkler, Schlögl, § 3 Rn. 70 ff.
  12. ↑ Tillmann, Seitz: Appraisal of heritable building rights and land. Reguvis Verlag, Cologne, 2020.