Land registry
In German law , the land registry is a court of registry that is entrusted with keeping the land register .
General
According to Section 1 GBO, the district court is responsible for keeping the land registers for the properties in its district . The land registry is responsible for a specific land registry district; the land register districts coincide with the municipal districts ( Section 2 (1) GBO). According to Section 3 No. 1 h of the Rechtspfleger Act, land registry matters belong to the area of responsibility of the Rechtspfleger .
Up to now, different regulations existed in Baden-Württemberg (§ § 149 , § 150 GBO), here, according to old tradition, the land registers were kept by the state land registry offices established in every municipality . By the end of 2017, these had been centralized at 13 central locations at the respective local courts.
tasks
In the case of registration applications and deletions, the land registry offices monitor compliance with the material ( BGB ) and formal ( GBO , land register dispositions) requirements in order to ensure the correctness of the land register. This is to ensure that the public belief in the land register can assume correct entries and deletions ( Section 891 (1) BGB). The land registry is not only obliged to comply with the formal registration requirements, but also to maintain the correctness of the land register and may therefore not make any entries that are known to be incorrect. It checks compliance with the procedural rules of the GBO and carries out the necessary investigations ex officio ( Section 26 FamFG). This also applies to a registration request from an authority . If the attached documents show that the coveted entry would make the land register incorrect, the land registry may not comply with the applications. The registration courts have to check entries and deletions for their formal and material correctness ex officio. The land registry offices check in detail down to the question of whether a condominium is self-contained. In this case, the land registry has to prove the seclusion by means of a certificate from the building authority, Section 7 (4) I No. 2 WEG .
Entries and deletions are triggered by corresponding applications, which are also kept and managed as basic files by the land registry. The land registry plays an important role in the registration process because it determines the order of entry of several rights to be entered in the same land register and thus decides on the order of priority entered in the land register . Since the date of entry is of fundamental importance ( § 879 Paragraph 1 BGB), according to § 13 Paragraph 1 Clause 2 GBO, the time of receipt of the application at the land registry office must be precisely noted ("present"). In § 17 GBO it is determined that the land registry has to adhere to the order of receipt for the processing sequence. It is therefore not necessary to process incoming land register applications on the same day in order to maintain the legal order of precedence resulting from the entry in the land register. The land registry is forced to take over the postal order of receipt when registering.
The land registry is also responsible for inspecting the land register (Section 12 , Section 12c GBO) and drawing up extracts from the land register ( Section 3 (1), 12, 12c GBO). Here it checks whether someone has the material and formal authorization to inspect the land register and the basic files. Land register excerpts are created for a fee upon request, but land register notifications are automatically sent to those involved in an entry or deletion in accordance with Section 55 GBO.
Correctness of the land register
The aim of the examinations by the land registry is the correctness of the land register, on which legal transactions according to § 891 Paragraph 1 BGB can rely. A land register is incorrect in the legal sense if an incorrect entry or deletion spreads public faith according to §§ 892, 893 BGB because an existing property right is not registered or a registered property right does not exist. The land registry has to prevent incorrect entries or deletions. If incorrect entries are made, the land register will be incorrect. The land register is incorrect if its content is not in accordance with the substantive legal situation
- with regard to a real property right or a right to a property right,
- with regard to a registrable, but not or incorrectly registered or wrongly deleted restriction on disposal
- with regard to an incorrectly entered or deleted reservation or an objection.
The public belief in the land register is so strong that if a third party acquires it in good faith, an incorrect right is cured (§§ 892, 893 BGB).
Treatment of incorrect entries
If the land registry has violated statutory provisions during the entry and has thus led to the incorrectness of the land register, an objection must be entered ex officio in accordance with Section 53 (1) GBO . According to this provision, an official deletion is to be brought about if an entry proves to be inadmissible in terms of content. Namely void the burdensome on land easement on a condominium unit by surcharge in foreclosure , it goes all over the property and is on the other WEG units as content archived in accordance with § 53 para. 1 sentence 2 GBO ex officio Clear. The land register can only be corrected by the land registry, but it then expects the approval of the person affected by the correction (Section 19 GBO).
Register court
During the examination, the land registry also has to decide any legal questions that arise. Here the court function of the register court is in the foreground, although the land register (and generally the register courts) do not have a judge function. For this reason, the so-called judge's privilege according to Section 839 (2) BGB does not apply to registry judges, because land registry judges do not make judgments in disputed legal cases. Resolutions of the land registry are part of voluntary jurisdiction , against which the only legal remedy is a complaint that is heard by the competent higher regional court ( Section 72 GBO). Incidentally, violations by the land registry of the ranking provisions of § 17 and § 45 GBO do not make the land register incorrect, so that there is no right to correction and no possibility of official objection (§ 53 para. 1, § 71 para. 2 GBO). The disadvantaged from this incorrect entry has no claim to enrichment vis-à-vis the beneficiary, only the claim for compensation from breach of official duty remains (§ 839 BGB).
Overload of the land registry
In a fundamental decision, the BGH commented on the excessive duration of the processing of applications by the land registry due to overload. According to this, the state has to equip its courts in such a way that they can conclude the pending proceedings without any avoidable delay. In the case of applications, there is an official duty in the official procedure to process the application conscientiously, conducively, appropriately and within a reasonable period of time and to deal with it when the decision is ready. If an authority is heavily burdened over a long period of time, a proper public administration requires that this authority be provided with sufficient material and human resources so that it can deal with the affairs of the citizens. Such an obligation only exists towards the general public; However, if the inadequate equipment of an authority has such an effect that it can only fulfill the tasks incumbent on it towards the citizen with unreasonable delays, this constitutes a breach of official duty towards the person concerned. In the constitutional state , every authority has the official duty to process applications with the necessary speed and, as soon as their examination has been completed, to not delay them.
See also
Web links
literature
- Demharter : Land Register Regulations , 27th edition, Munich 2010, ISBN
Individual evidence
- ^ Reorganization of the land registry in Baden-Württemberg . Justice portal Baden-Württemberg. Retrieved January 13, 2016.
- ↑ BGHZ 35, 135, 139
- ↑ BGHZ 19, 355, 357
- ↑ BGH NJW 1989, 1093
- ↑ Joachim Kuntze / Hans Herrmann, Land Register Law: Commentary on GBO and GBVfg , 1999, p. 572
- ↑ OLG Frankfurt, Rpfleger 1979, 149
- ↑ Kurt Schellhammer, Property Law According to Legal Foundations , 2009, p. 457
- ↑ BGHZ 84, 285
- ↑ BGHZ 45, 186, 191
- ↑ BGHZ 21, 98, 100
- ^ BGH, judgment of December 7, 2006, Az .: III ZR 302/05
- ↑ BGH NJW 1994, 2091, 2092
