Real estate law

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The land law is an area of law that deals with legal norms is concerned that the acquisition , the sale and management of land and land rights are to be observed.

General

Real estate law is often referred to as real estate law, although the term real estate law does not cover a uniform area of ​​law in the Federal Republic of Germany . Real estate law and real estate law comprise various individual special laws. The most important are the BGB , in which the material property law is comprehensively regulated in property law, and the land register order (GBO), which deals with formal property law.

The term property is generally defined as a spatially delimited part of the earth's surface , which in Germany is recorded in the land register on a separate land register sheet ( § 3 Paragraph 1 GBO) or under its own number in the inventory on a joint land register sheet ( § 4 Paragraph 1 | GBO ) is recorded. A plot of land can be kept on a separate land register sheet or simply under a specific number on a joint land register sheet (Section 3 GBO).

In Germany there is an official register ( cadastre ), which contains all plots of land as measured and mapped units and called "cadastral parcels " with a parcel number . The property generally also consists of essential components ( Section 94 BGB), rights as components of a property ( Section 96 BGB) and accessories ( Section 97 BGB). As a rule, the property is by a notary notarized land purchase contract purchased and thus the standing on the property building because it is an essential part according to § 94 BGB.

Principles in property law

The general principles applicable to property law must also be observed in property law. These are the principle of absoluteness , compulsory type , publicity , the principle of specialty , the principle of certainty as well as the principle of abstraction and the principle of separation . The rem liability plays a role in obligations .

Legal basis in German real estate law

In real estate law, the provisions on property tax and property transfer tax are important in terms of tax law . According to a ruling by the Federal Constitutional Court (BVerfG), the previous levying of property tax on the basis of unit values ​​must be replaced by a new regulation by December 31, 2019 at the latest. Until then, the unconstitutional rules may continue to be applied. After the announcement of a new regulation, they may be applied for a further five years from the announcement, but no later than December 31, 2024.

International

In Austria , as in Germany and Switzerland, real estate law is largely based on Roman law principles, so that many legal bases are regulated in a similar way, even if they are sometimes named differently (the German accessories are called, for example, Zugehre (Austria) or Zugehre (Switzerland) ). To Austrian real estate law include construction law , land registry law , liens , neighboring rights , home ownership or home use rights . They are regulated in the ABGB or in special laws .

In Switzerland , too , real estate law includes various areas of law such as building law , easements , liens on property, purchase and donation agreements as well as inheritance withdrawals , neighborhood law, usufruct and right of residence , parcels and associations as well as condominium law . These are regulated, among other things, in the Code of Obligations , in the Civil Code and in special laws .

In France , property law ( French droit immobilier ) is contained in the Civil Code (Art. 516 ff. CC, Art. 1582 ff. CC), Code de la Construction et de l'Habitation (building law, property development law , leasehold ), decree n. 55 -22 of January 4, 1955 (publicity of property matters ), decree n. 55-1350 of October 14, 1955 (formal real estate law) or the Loi n. 65-557 of July 10, 1965 (law on condominiums; French Fixant le statut de la coproprieté des immeubles bâtis ). Ownership ( French proprieté ) grants the right to use a property and to dispose of it in an absolutely unrestricted manner (Art. 544 CC). In addition to land and buildings , real estate also includes harvesting from the stalk and fruit on trees (Art. 516, 520 CC). The real estate and mortgage register ( French bureau de la conservation des hypothèques ) is located in the arrondissements . It records the mortgages, all other property-related processes and seizures in the main register . The "refillable mortgage" ( French hypothèque rechargeable ) is a mortgage , but "refillable", that is, revaluable , which corresponds economically to the security land charge . The time of receipt of the application, which is important for the ranking , is recorded in the secondary register . In addition, the real estate index ( French: fichier immobilier ) contains the ownership structure ( French : ficher personalelles ), the real estate index ( French : fiches d'immeuble ) and the parcel index ( French : fiches parcellaires ).

In common law provides land law ( English real property law ) probably the most peculiar and different from civil law jurisdictions most matter in general represents. Legal sources are mainly the Law Property Act (1925), Country Charges Act (1972), the Land Registration Act ( 2002) and the Commonhold and Leasehold Reform Act (2002). Formally there is no absolute ownership of land in England and Wales because the land belongs to the Crown . Key terms are since 1925, the "open fiefdom" ( English freehold ) and the long lease ( English leasehold ). "Freehold" means that the property is freely available and that it stands on land, to which no one other than the owner ( English proprietor ) has a right of ownership. As freely available property, a freehold object including land can be transferred to an acquirer for an unlimited period of time. The objects marked with "Leasehold" or also condominiums can be sold as desired, but without the property on which they are located. On that of homebuyers has only one tenant law ( English right of lease ). A real right is a "lease" in front until he for at least 21 years ( English lease long is closed). A "leasehold" can with a mortgage ( mortgage ) or mortgage ( English land charge ) as collateral will be charged. Landlord and tenant law is the main legal basis of tenancy law .

literature

  • Real estate law , 6th edition 2011, Beck texts in dtv
  • Hans-Armin Weirich: drafting contracts in real estate law . Edited by the German Lawyers Academy. 3rd edition Beck-Verlag, 1997, ISBN 978-3-406-40149-7

Individual evidence

  1. BVerfG, judgment of April 10, 2018, Az .: 1 BvL 11/14 u. a.
  2. ^ Susanne Frank, Handbook of Real Estate Law in Europe , 2004, p. 291
  3. ^ Matthias Fervers, Hypothèque rechargeable and Grundschuld , 2013, p. 28
  4. ^ Susanne Frank, Handbook of Real Estate Law in Europe , 2004, p. 297
  5. Martin Eisenhauer, Modern Developments in English Real Estate Law , 1997, p. 3
  6. Martin Eisenhauer, Modern Developments in English Real Estate Law , 1997, p. 6
  7. ^ Susanne Frank, Handbook of Real Estate Law in Europe , 2004, p. 174
  8. Martin Eisenhauer, Modern Developments in English Real Estate Law , 1997, p. 19