Land register inspection

from Wikipedia, the free encyclopedia
This article or paragraph presents the situation in Germany . Help us to describe the situation in other countries.

Inspection of the land register is understood to mean the permission to inspect a certain land register and the basic files.

General

In general, unrestricted inspection by interested parties of the existing entries and deletions is permitted in public registers such as trade , association , cooperative , partnership and property law registers . The Land Registry, however, the inspection because of the visible asset for everyone (is land ) and debt ratios ( land charges , mortgages , mortgages ) restricted by law. Although this restriction is basically justified, it was implemented superficially by law and thus largely left to the discretion of the land registry . The use of this vague legal term also gives the courts sufficient leeway to adequately take the individual case into account when interpreting and applying the provision.

Legitimate interest

Access to the land register is permitted to anyone who can demonstrate a legitimate interest to the land registry ( Section 12 and Section 12c GBO ). The original purpose of the regulation was to allow a right of inspection only because of the expected participation in legal transactions in connection with legal relationships entered in the land register. The limitation of the right of inspection ultimately serves to protect the privacy of those registered.

Legitimate interest is an indefinite legal term that requires a justified and reasonable interest for permission to inspect the land register. In order to convince the land registry, factual reasons must be presented which exclude the pursuit of unauthorized purposes or mere curiosity. The property owner and all rights holders entered in the land register initially have an unrestricted legitimate interest in this sense. This also applies to authorities , courts and notaries because of the obligation to provide administrative assistance ( Art. 35 GG) and publicly appointed surveyors . An actual interest, in particular an economic interest, can also suffice in individual cases. This group of people includes the

  • Lender of the owner, if a loan is to be secured in the land register;
  • Believer of a claim that can be enforced against the property owner who, based on an enforcement order , would like to operate the foreclosure sale of the property or heritable building right ;
  • Neighboring properties who want to obtain information about the neighboring owner.
  • Tenant , to determine whether the landlord is the real owner.

This legitimate interest must be presented to the land registry. Presentation is the submission of facts in a way that can convince the land registry of the pursuit of legitimate interests. In individual cases, proof of interest can be requested if there are justified concerns. This is not necessary if the owner or the holder of a right entered in the land register consents to inspection or authorizes the interested party in writing . If inspection is permitted if the legitimate interest is affirmed, there is no provision for balancing the interests of those entered in the land register with opposing interests.

The inspection of basic files permitted in Section 46 (1) of the GB Order also relates to the legitimate interest. If the legitimate interest in inspecting the land register is affirmed, the person viewing the basic files may also look at the basic files, even if the basic files often contain the contractual agreements on which the entries are based and these regularly contain information on personal, family and social issues to a greater extent than the land register itself Disclose the economic or financial circumstances of those affected.

The restriction to the legitimate interest is intended to prevent improper access to the land register. This includes mere curiosity and the pursuit of unauthorized purposes.

Legitimate interest of the press

Insofar as the state specifies the requirements for inspection in the GBO , access is constituted but not limited in the legal sense. There are no concerns about the constitutionality of § 12 GBO. The legitimate interest that is to be interpreted in this way in general legal transactions with real estate experiences exceptions in favor of the press. According to this, the press also has the right to inspect the land register, since a public interest is also to be recognized as a legitimate interest and the press takes care of public interests. The Federal Constitutional Court had decided on this issue that - beyond the original regulatory purpose - there is also a legitimate interest of the press in deriving from the entries made for a specific property within the framework of freedom of the press and the fundamental right to freedom of information ( Art. 5 Para. 1 Sentence 2 GG) to gain knowledge. Such an interest exists if the request to inspect a news magazine (in the case of "Wirtschaftswoche") aims to obtain journalistically usable information in connection with the purchase of a property and is therefore to be assigned to the preparatory journalistic activity covered by the protection of the freedom of the press. It was about a well-known politician and his wife, who were suspected by a news magazine of having been granted financial concessions by a well-known entrepreneur for the acquisition of the property, so that the land register was supposed to be used for journalistic research purposes.

Internet land registry information

If land registers are recorded electronically ("electronic land register"), land register data in the legal sense are no longer stored in the land registry on site at the land registry, but in a central computer center. Because of this central storage, the prerequisites for setting up the Internet land register inspection have been created. The retrieval of land register data is then only possible if a legitimate interest is shown. Within this automated retrieval procedure for inspection of the land register, access to the Internet land register inspection is available to authorities, courts, notaries and publicly appointed surveyors. These take part in the unrestricted retrieval process. In the case of foreclosure measures, real authorization on the property and in the presence of a power of attorney from the owner, those authorized for these reasons are permitted to inspect the land register with restrictions.

Land register copies

The land register extract is a copy of all entries in the land register. He will u. a. required for the lending check based on the lending documents and before buying a property. If a legitimate interest has been proven, copies of the land register can also be applied for in addition to inspection (Section 12 (2) GBO), which can also be officially certified .

The application for the issuance of an extract from the land register must be submitted to the responsible land registry office (Section 3 (1), Section 12 and Section 12c GBO). The land registry issues unauthorized and certified copies, so it costs

an unauthorized copy 10 euros,
a certified copy 20 euros.

The legal basis for the collection of fees is the Court and Notary Fees Act (GNotKG); see § 34 GNotKG - table A - main section 7 - special fees - cost codes 17000 and 17001.

There are still no fees for inspecting the land register.

Refusal of inspection

The land registry is generally not obliged to provide information from the land register. This restricts the publicity of the land register. There is only an obligation to provide information on the basis of statutory regulations, in particular in the context of property enforcement. If the facts presented are not sufficient for the land registry clerk, he must reject the application for inspection. The legal remedy against the refusal of inspection by the land registry clerk is the description of the facts presented in writing and addressed to the land registry judge. This decides whether the rejection was justified. An appeal is possible against decisions of the land registry court . The land registry court can remedy the complaint. It does not help starting, the Commission, after § § 71 , § 72 GBO the Court of Appeal .

The Schleswig-Holstein Higher Regional Court had ruled on the subject that the legislature had not designed the land register as a public register that anyone could inspect for information purposes, since the legal position of the land register enjoyed fundamental rights protection. Only if there is a justified interest does the person entered in the land register have to accept that third parties are allowed to look into the legal and financial circumstances of a property. However, if someone has no legal or factual relationship with the property owner, there is no legitimate interest. It is therefore not sufficient that the debtor of a creditor requesting access to the land register lives on the property for rent and the creditor requests information from the land registry office about ownership by inspecting the land register.

A reference broker without a brokerage contract and without a copy of a land purchase contract has no legitimate interest in inspecting the land register in order to determine the broker's commission. The real estate agent has a legitimate interest in inspecting the basic files and thereby finding out the agreed purchase price if there is a considerable likelihood of the alleged creation of a commission claim based on the purchase price.

Web links

Individual evidence

  1. ↑ BGHZ 80, 126, 128 f.
  2. ↑ BVerfGE 64, 229, 238
  3. ↑ BVerfG NJW 2001, 503, 504
  4. ↑ BVerfGE 50, 234, 240
  5. ↑ BGH, decision of August 17, 2011, Az .: V ZB 47/11
  6. ↑ Decision of January 12, 2011, Ref .: 2 W 234/10
  7. ↑ OLG Dresden, decision of December 3, 2009, Az .: 3 W 1228/09