Land register principles

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In land register law , land register principles are the principles under which a land register must be kept.

General

As land registers, which are subject to the land register principles, the general land register, heritable building land register , ship register , partial ownership land register and housing land register come into question. So that the land register can effectively fulfill its functions, certain substantive and formal legal principles must be decisive for the requirements and the execution as well as for the legal effects of the entries. In land register law, a distinction is made between substantive law and formal law ; this also applies to the land register principles. Substantive law states how a right is created , changed , transferred or deleted . Formal law clarifies how this substantive law can be enforced . The land register principles belong to either substantive or formal law.

There are five land register principles, namely the land register system, the registration principle, the consensus principle, the priority principle and the principle of publicity. In addition, the specialist literature has developed further principles.

Land register system

The land register system means that all legal relationships that affect a piece of land or the right to land must be recorded in the land register. Therefore, both are records / deletes the property (in Section I as well) as well as limited rights as real loads in section II or liens be noted in Section III.

Registration principle

According to the registration principle (also: booking principle ), a material change in the law can only be made through an entry in the land register. It follows that an agreement in rem without registration is just as invalid as a registration without an agreement. The booking principle goes back to the principle of public belief . Because content and rights that are not noted in the land register are regularly considered to be non-existent.

According to the registration principle, a change in the law from legal transactions only arises through registration ( § 9 Paragraph 1 GBO , § 15 Paragraph 2 GBO). Entries therefore always have a constitutive effect and ensure that land register rights are legally effective at all.

Consensus principle

The consensus principle (also: unification principle ) determines that the acquisition, modification and cancellation of property and other rights to land are dependent on both the real agreement of the parties involved and the entry in the land register ( Section 873 BGB - double requirement) .

As a rule, the land registry only checks the abstract declaration of intent aimed at the creation of the law as such, but not the legality of the underlying causal transaction ( Section 13 (1) GBO). If there is agreement on the legal transfer ( conveyance , § 925 BGB) of land and, if registered, and alteration of the content or transmission of a hereditary building may only be one entry if both parties their agreement by a notary notarized contract ( § 128 BGB) such as having declared a property purchase agreement or a donation agreement ( Section 311b BGB).

Rank principle

The rank principle is derived from property law priority principle and controls the position of the individual rights of a property in the land registry. If several entries are to be made in a department , they are given a sequence based on the date of application or the time of receipt. The entry applied for later must not be made before the earlier application has been dealt with ( Section 17 GBO). If, in exceptional cases, the applications were made at the same time, this must be noted in the land register ( Section 45 (1) GBO).

If the rights are entered in different departments, the right entered with an earlier date has priority. Rights that are entered with the indication of the same day have the same priority ( § 879 BGB, § 45 GBO - date principle ).

Principle of publicity

The formal principle of publicity ( Section 12 (1) GBO) states that anyone who can prove a legitimate interest can inspect the land register . The same applies to documents that are referred to in the land register ( basic files such as sales contracts or other notarial notarizations). A legitimate interest exists if the person viewing the property has, in particular, legal connections (e.g. as a leaseholder , via a certificate of inheritance , notaries ).

According to the material disclosure principle (§ § 891  ff. BGB), the content of the land register is always correct ( public belief ). Thereafter, the content and rights noted in the land register are deemed to exist; not registered are considered not to exist. The correctness is valid until the contrary is proven by contradiction .

Further principles

The specialist literature also mentions other principles. In principle, the land registry does not act ex officio (application principle). Therefore, a registration, change or cancellation must always be based on a written application for a change to become legally binding. Anyone in whose favor the entry is to be made (for example, the purchaser of a piece of land) and anyone whose property is affected by the entry is entitled to apply. In addition, Section 13 (2) GBO stipulates that the date and “exact” time at which an application is received by the land registry must be noted on the application ( presentation ). This is important if, for example, several applications for the same property are received by the land registry on the same day. In this case, the applications must be processed chronologically (priority principle).

literature

Germany
  • Clemens Stewing, History of the Land Register , in: Rpfleger (Der Rechtspfleger) 1989, pp. 445–447
  • Walter Böhringer, in: Georg Meikel / Horst Bestelmeyer (eds.): Grundbuchrecht, Vol. I, 9th edition, Munich 2004, p. 1 ff. ISBN 3-472-04533-7
  • Josef Rieder / Stefan Rieder: Reservation and objection in real estate transactions . Deutscher Sparkassen Verlag, Stuttgart 5 2005, ISBN 3-09-305337-4
Austria
  • Land Register Act 1955, Federal Law Gazette No. 39/1955, in the version of Federal Law Gazette I No. 112/2003, available in the RIS at http://www.ris2.bka.gv.at/
  • Erich Feil / Karl-Heinz Marent / Gerhard Preisl: Land register law . Linde Verlag 2005, ISBN 3-7073-0674-7
  • Erich Feil: Land Register Act . Linde Verlag 1998
Switzerland

Web links

Wiktionary: Land register  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ Reiner Arlt / Günther Rohde, Bodenrecht: Ein Grundriss , 1967, p. 151
  2. ^ Justus Wilhelm Hedemann, Property Law of the Civil Code , 1960, p. 93 f.
  3. ^ Justus Wilhelm Hedemann, Property Law of the Civil Code , 1960, p. 93