Joint ownership
Of -ownership is called in German private law , if the property is entitled to multiple people. In Switzerland and Liechtenstein is the appropriate form of ownership Joint ownership . So every person is the owner of the whole thing for himself (“Everything belongs to everyone”), not the owner of an ideal fraction. This is how common ownership differs from fractional ownership . However, the owners are limited in their power of disposal over the property ("jointly bound").
Essence of joint ownership
The legal regulations mostly speak of the fact that it is not possible to dispose of individual shares in the objects of the total handheld property. That is correct in the result, but it does not go far enough: unlike fractional ownership, there are certainly no shares in the property that can be used.
However, there are proportions of the total assets held in total , can be equipped with the necessary (as in the community of heirs , § 2033 BGB ). This percentage participation only plays a role in the management and settlement of the property, but has no effect on the property situation. For this reason, the share of the total property is not entered in the land register (cf. § 47 Land Register Regulations (GBO), under the first case of which is fractional ownership, but total ownership under the second).
- Example: If, for example, A and B inherit 50% each and the estate consists of a piece of land and a motor vehicle, then not both have 50% co-ownership of the land and the car, but both items belong to each of them wholly without any share the individual objects. However, they are tied together as a whole, so they can only dispose of the property and car jointly, Section 2040 BGB. The owner of the property would therefore be entered in the land register: "A and B in undivided community of heirs". However, they are proportionally involved in the total handheld assets, which is important, for example, for the distribution of the surplus in the dispute ( § 2047 BGB).
Emergence
Joint ownership occurs with the community of heirs and the community of property . In the past, the corporate assets of the company under civil law were also understood as the joint property of the shareholders (this is also the wording of Section 718 (1) BGB: "The contributions of the shareholders and the items acquired by the management for the company become joint assets of the shareholders (company assets) ".) Since the recognition of the partial legal capacity of the external GbR by the Federal Court of Justice , it is no longer the jointly bound assets of the shareholders, but the own assets of the (partially) legally competent company, ie" normal "property. The Federal Court of Justice has now also recognized this for immovable property, although the publicity of the shareholders behind it is then lacking.
On the basis of Section 47 Paragraph 2 GBO in conjunction with Art. 229 Section 21 EGBGB and Section 899a BGB (in the new version of August 17, 2009, Federal Law Gazette 2009 Part I No. 53, p. 2714 ff) the name of the company under civil law should also expressly include its shareholders in the land register. In this respect, the legislature has now withdrawn the basis for the previously partially different case law.
Administration and disposal
The joint ownership of the owners becomes clear in the management and disposal. In principle, both can only be done jointly, which is complicated and often causes problems in practice. Therefore, the law gives each co-heir the right to dispute in order to bring about an end to the joint bond.
Repeal and Restriction
The total Hand Community will in any case by the substance by dividing the total hand property dissolved (Real division Watschierung).
Through the division of use in the case of joint ownership (formerly also called localization, mutation) or the administrative division in the case of joint ownership (formerly also known as disclosure), an agreement can in fact restrict the principle that each person is the owner of the whole thing and is jointly bound . The collective hand is thus brought closer to the rules and possibilities of co-ownership.
Comparable institutes and importance
Not only ownership, but also other rights can exist in a jointly binding manner (e.g. a claim belonging to the estate).
If one follows the above-mentioned case law of the Federal Court of Justice on civil law, the whole hand has lost an essential application, whereby it should be noted that the new group theory only applies in the external relationship of the GbR and in the internal relationship, as before, the individualistic theory according to which the shareholders apply are still as joint owners of assets. The marital community of property is also almost never agreed because of its extraordinary complexity. This means that, as a frequent case, there is only the community of co-heirs , which often arises in legal succession , but can be avoided through testamentary inheritance .
Switzerland
Joint ownership is also codified in the Swiss Civil Code, where it is referred to as " joint ownership " (Art. 652 ZGB). According to this, several people are linked by law or contract to form a community who can only dispose of the matter jointly (Art. 653 Paragraph 2 ZGB). The disposal of a fraction of the thing is excluded according to Art. 653 Para. 3 ZGB. Therefore, according to the German standard, there is joint ownership, which distinguishes Swiss joint ownership from German joint ownership .
