Real estate lien
There are mortgages to secure claims (especially loan claims). If the mortgage-secured debt is not met , so can the creditor using the foreclosure law the property or leasehold right exploit and use the proceeds to pay off the debt.
Property liens in Germany
Among the mortgages are among mortgage ( BGB ), the mortgage ( BGB), the land charge ( para. 1a BGB) and annuities ( BGB). The purpose is usually in lending to be used as collateral for loans. Real property liens are real exploitation rights; If necessary, the obligee can get certain sums of money back from the property by means of a foreclosure auction ( BGB) or compulsory administration , whereby the holders of mortgages enjoy a preferential position. Since the property liens according to BGB also apply to accessories i. S. d. German Civil Code (BGB), movable objects can exceptionally be encumbered with a mortgage.
The mortgage is regulated most extensively; Numerous provisions of the mortgage apply to the land charge according toBGB.
The order of the liens done in Banking due to a security agreement that is part of a loan agreement is. They only become effective when they are subsequently entered in the land register and expire when they are deleted . In addition to the property and building, the obligee is also liable for property liens according to BGB its essential components and accessories , according to BGB the rent and lease claims (for rented or leased objects on loan ); According to § ff. BGB, insurance compensation , in particular building insurance ( BGB) and other damage insurance ( BGB), is also liable .
In Switzerland, according to federal law, there are two common and one marginal type of mortgage ( ZGB ), in addition to which old mortgage titles are still in force under cantonal law:ff.
- The mortgage bond ( security . ff. ZGB) serves exclusively to secure a claim and is not issued as a
- The mortgage note ( ff. And ff. ZGB) is also used for security purposes. Since it is issued as a security, however, it also enables less complicated legal transactions about the value of the pledged land.
- The validity ( ff. And ff. ZGB) has practically no meaning in practice and has not been established since January 1, 2012. Unlike the two aforementioned liens, it is not linked to any personal liability on the part of the debtor; he is only liable with the pledged property. As for the mortgage note, a mortgage (i.e. a security) was issued for validity.
- The cantonal private law of the cantons of Appenzell Ausserrhoden and Appenzell Innerrhoden also knows the Zed (d) el , an old law institute for private financing with a fixed interest rate. As with the validity, with which the Zed (d) el is closely related, the debtor is not personally liable, but with the pledged property.
The mortgage bond is not regulated by law .
All mortgages - like the other limited real rights to land and property - are normally entered in the land register. If the secured claim is not met, the creditor can have the pledge realized in debt enforcement or bankruptcy proceedings and pay off from the result.
In addition to the model of the mortgage note, which is entered in the land register and issued as a security ("paper mortgage note"), there has been a "paperless" mortgage note ("register mortgage note") since January 1, 2012. By eliminating the security, the handling should be easier and cheaper than with paper mortgage notes.
In addition to the actual mortgages, there are also the basic loads that combine properties of the mortgages and the easements : The respective owner of a property is obliged to provide a service to a person entitled, for which he is only liable with the property (Art. 782 ff. ZGB ).
In Austria, the real estate lien is the encumbrance of a property or a related right for the purpose of securing a claim. Mortgage liens are therefore loan collateral that occurs exclusively as a mortgage ( ABGB ). A distinction is made between two types of mortgage: the normal case of the fixed-amount mortgage and the maximum-amount mortgage (Section 14 (2) of the General Land Register Act).
In Liechtenstein , the provisions of Swiss property law (Art. 641 to 977 ZGB) were largely adopted in 1923 and introduced as a separate code of law ( Property Law - SR, LGBl 4/1923 of February 1, 1923). As a result of the takeover, the provisions of the Liechtenstein General Civil Code , which had been in force since 1812, were suspended. In several amendments , the property law provisions in Liechtenstein have been updated to reflect the changes in the Swiss Civil Code on property law.
The explanations on Swiss law on mortgages can therefore largely also be adopted for Liechtenstein. The validity can still be set up in Liechtenstein, but in practice, as in Switzerland, is of little importance.
In France, Art. 2114 Civil Code (CC) provides for the mortgage ( French hypothèque ) as real security for the fulfillment of an obligation on an encumbered property. The "refillable" mortgage ( French hypothèque rechargeable ) is a mortgage, but revaluable , which corresponds economically to the German security land charge .
The mortgage in English law ( English mortgage ) also exists as an accessory real security, while the land charge ( English land charge ) is not an accessory. The collateral provider transfers a right in rem to the collateral taker with the condition that the right in rem is transferred back after the claim has expired. The "mortgage" can be ordered on land and movable property. English law distinguishes between mortgages that require a formal form and those that do not require a form (Law of Property Act 1925 Sect. 85, Land Registration Act 2002, Sect. 23 and 27).
- Liechtenstein SR
- Antonius Opilio : Working Commentary on Liechtenstein Property Law . 1st edition. tape II . Edition Europa, Dornbirn 2010, ISBN 978-3-901924-25-5 .
- Klaus Tiedtke , Acquisition of movable and immovable property by virtue of good faith , in: JURA 1983, 460, 472
- Matthias Fervers, Hypothèque rechargeable and Grundschuld , 2013, p. 28