Land register law

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The Land Registry Law is an area of law that deals with the law of the land , land rights and land registry concerned. In Germany, it is part of property law that deals with movable property and land.

General

The land register law is the process maxim that has become law , quod non est in actis, non est in mundo (“what is not in the files does not exist”). Conversely, “what is in the book is correct” also applies, at least until the opposite is proven. One speaks here of the public belief of the land register , because it protects anyone who concludes real estate transactions with the registered owner and trusts the correctness of the incorrect entry. Since the land register law is part of property law, the principles of property law also apply in a modified form.

The land register is of enormous economic importance. Economic and legal transactions therefore require clarity about the legal status in rem. This is guaranteed by the land register law that applies today. Each legal transactions law change to land rights requires for its Legal validity of the registration of the land register.

history

German land registry law began with the medieval Cologne shrine registers , the oldest German land registers . The first shrine book of this type was introduced by the old town of St. Laurenz around 1130, from where a 54 × 75 cm large parchment sheet with a colorful arcade of columns has come down to us. The parish Klein St. Martin I followed in 1136 with initially sporadic records. According to Manfred Groten , St. Laurenz sporadically recorded legal transactions in the “Geburhaus” (community center). Cologne's shrine system in the true sense began with the shrine map of the citizens of Klein St. Martin I in 1136, when Archbishop Bruno II von Berg was in Italy. The decentralized shrine system in the individual parishes also led to a central shrine around 1160, the so-called aldermen's shrine ( Latin carta civicum ). Mainly real estate transactions outside of Cologne were recorded here.

Paving the way for the further development of law were next to that with Verschweigungswirkung (now § 1974 BGB ) equipped Hamburg city heritage book (1248-1273), the Danziger Erbbuch (from 1357), the Ulmer deposit book (after 1400) or the Bratislava basic and phrase book (of 1439 ). In 1472, Munich created a land register and land register order, which was continued in addition to the Bavarian Mortgage Book (1822) until 1900 and from 1900 (by BayG of June 19, 1898) became the relevant land register.

An edict of September 28, 1693 regulated the hereditary and storage book for the royal cities of Berlin , Neukölln , Friedrichswerder , Dorotheenstadt and Friedrichstadt . 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 should be set up at every court dealing with the mortgage system, which should contain all properties in the district with precise names and numbers. The name of the owner , the purchase title and the purchase price had to be attached to each property . In April 1748, the system of classification of creditors, taking into account the reason for debt, was eliminated and replaced by a pure priority principle based on the date of entry . It was now essential that the mortgagee should be listed in first place.

On December 20, 1783, the Prussian "Mortgage Regulations" came into force, which introduced the registration principle. In January 1867 the mortgage was introduced . A first draft of the "land registry regulations for the area of the North German Confederation" was created in January 1868. He proposed two types of mortgages before, the mortgage and the mortgage. In May 1872, the land register regulation (GBO) came into force as the "law on the acquisition of property and the encumbrance of land, mines and independent justice", even before the material law of the civil code (BGB) existed. As a result, the land and building tax books came to the fore as the basis for the land register, and the application principle was set as the topmost entry principle. The land registry consisted of a land registry judge, a bookkeeper and the necessary clerks and sub-officials (Section 20 (2) Prussian GBO). The first draft of the German Civil Code (BGB) from December 1887 indicated that the real estate law of the German Civil Code (BGB) required a land register order that determines the formal procedure in land register matters. A revised version of the GBO partly took into account the proposals made by Alexander Achilles in an expert opinion in August 1894. It came into force in March 1897, and in most of Prussia on January 1, 1900, with the creation of the land registers only later; in Bavaria only in October 1910. At the same time as the GBO, the BGB came into force in January 1900. The new GBO was in effect from August 1935.

Principles of land register law

The principles governing property law also apply to land register law. The principle of publicity is guaranteed by the entry in the land register ( § 873 BGB). The substantive principle of publicity concerns the public belief of the land register, the formal principle of publicity is realized through the right to inspect the land register . According to the principle of absoluteness , the rights entered in the land register apply against everyone; According to § 891 BGB, it is assumed that registered rights belong to those affected and that deleted rights do not exist. The principle of certainty is expressed in Section 3 Paragraph 1 Clause 1 GBO , according to which each property is given its own place in the land register, which is referred to as the land register sheet. This land register sheet is the land register for the property recorded in it in the sense of the substantive legal provisions of the BGB (§ 3 Paragraph 1 Sentence 2 GBO). A type requirement exists in the land registry because only a certain number of rights prescribed by law can be entered in the land registry ( numerus clausus ). The rights that cannot be registered include public charges ( Section 54 GBO) and construction charges . Only those entries may be made that are prescribed by a legal norm or that are expressly or tacitly permitted - for example because the substantive law links the entry with a legal effect. Finally, the principle of separation is guaranteed by the fact that, for example, in the case of a land purchase contract, the obligation transaction and the disposal transaction do not form a unit - even if it is a single legal transaction - but must be legally separated from each other.

Substantive and formal land register law

The land register law consists of substantive and formal land register law. The substantive land register law regulates how a right to a property is created, transferred or canceled. For the transfer of real estate (e.g. when buying a property), for the establishment, transfer or encumbrance of other real estate rights, an agreement in rem and entry in the land register is usually required. Regulations on the substantive land register law can be found in the BGB. For example, Section 873 (1) of the German Civil Code (BGB) requires that for the property purchase contract , for encumbering a property with a right and for the transfer or encumbrance of such a right, the real agreement of the person entitled and the other party on the occurrence of the legal change and the entry of the legal change in Land register is required. The formal land register law prescribes how the substantive land register law can be specifically enforced, namely by application ( § 13 Paragraph 1 GBO) by one of the parties and approval ( § 19 GBO) of the person whose right is affected by an entry or deletion . The land register ruling (GBV) also contains formal legal regulations.

Since the land registers are kept by the local courts and the decisions of the court have a constitutive (legal) effect, it is better to speak of the "land register court". The land registry court exercises jurisdiction , since the decision of the judicial officer changes the substantive law. A non-owner becomes an owner upon purchase. The judicial officer at the land registry decides on all registration applications from the notaries , who are the appointed representatives in property matters. The purpose of the entry in the land register is to guarantee legal security .

Individual evidence

  1. ↑ Peter Fuchs (ed.): Chronicle of the history of the city of Cologne. Volume 1, 1990, p. 122.
  2. ↑ Manfred Groten: The beginnings of the Cologne shrine system. In: Yearbook of the Cologne History Association. Volume 56, 1985, p. 4 ff.
  3. ^ Julius von Staudinger / Rudolf Ertl / Karl-Heinz Gursky / Hans-Dieter Kutter: Commentary on the Civil Code. 1983, p. 38.
  4. ^ Leopold-Michael Marzi: The law of the Pfandbriefe and mortgage banks in the past and present. 2002, p. 7.
  5. ^ Association for the history of the Mark Brandenburg: Research on Brandenburg and Prussian history. Volume 46, 1934, p. 38.
  6. ↑ Leopold-Michael Marzi 2002, p. 8.
  7. ^ Horst Heinrich Jakobs / Werner Schubert: Property Law III: Land Register Regulation. 1982, p. 14.
  8. ^ Hans Josef Wieling: Property Law. 2007, p. 268 f.
  9. ↑ BGHZ 116, 392, 399 f.
  10. ^ Wilhelm Gustav Dittmer: Property law. 1970, p. 30.