Real Estate Act
|Title:||Law on measures to improve the agricultural structure and to secure agricultural and forestry operations|
|Short title:||Real Estate Act|
|Type:||Federal law still in force (Germany)|
|Scope:||Federal Republic of Germany|
|Legal matter:||Commercial administrative law , agricultural land law|
|Issued on:||July 28, 1961
( Federal Law Gazette I p. 1091
ber.p. 1652 , p. 2000 )
|Entry into force on:||January 1, 1962|
|Last change by:||
Art. 108 G of December 17, 2008
( Federal Law Gazette I p. 2586, 2742 )
|Effective date of the
|September 1, 2009
(Art. 112 para. 1 G of
December 17, 2008)
|Please note the note on the applicable legal version.|
- Securing the continued existence of agricultural and forestry operations by protecting agriculture from the sale of its land (micro-economic aspect).
- The protection of nature and the environment is particularly emphasized by maintaining and improving the agricultural structure .
- Securing food supplies for the population (macroeconomic aspects).
For this purpose, the legislator has made the following regulations in particular:
- The legal sale of agricultural and forestry operations requires official approval in a special approval procedure (§§ 2 ff. GrdStVG).
- A farm that falls to a community of heirs by way of legal succession can be assigned to one of the co-heirs in a judicial allocation procedure (§§ 13 ff. GrdStVG).
According to the GrdStVG, the sale of a plot of land used for agriculture or forestry as well as the establishment of usufruct on such a plot of land requires the approval of the agricultural authority (§§ 2, 8 GrdstVG). If approval is not required, a negative certificate will be issued upon request (§ 5 GrdstVG).
The approval practice of the agricultural authorities and agricultural courts has become more and more liberal over the years, because the knowledge has gained ground that in addition to full-time farms, part- time agriculture is worthy of preservation for reasons of agricultural policy and other economic reasons.
Exceptions to the permit requirement
In the implementing laws of the federal states to the Real Estate Transfer Act it is stipulated that the sale of real estate up to a certain size does not require a permit. Under property is i. d. R. to understand the property in the legal sense, d. H. a spatially delimited part of the earth's surface that is entered in the inventory of a land register sheet under a special number regardless of the type of use; In this respect, economic aspects do not play a role.
The exemption limits for the individual property - including the limit value - are:
|state||Exemption limit in ha (as of 2009)||Exemption limit in m² (as of 2009)||annotation|
|Baden-Württemberg||1.0||10,000||0.5 ha for viticulture and horticulture;
0.1 ha in the Swiss border area
|Bavaria||1.0||10,000||Farm always subject to approval
Total over the last 3 years
Compatibility of the authorization requirement with EU law
The state-owned Bodenverwertungs- und -verwaltungs GmbH (BVVG) sold an area of 2.6 hectares to the highest bidder in 2008 following a tendering process. The responsible district refused approval on the grounds that the agreed purchase price was grossly disproportionate to the value of the property sold. After decisions by the lower courts, the Federal Court of Justice (BGH) submitted the case to the European Court of Justice (EUGH). The latter should check whether European state aid law precludes national regulation if this could prohibit sales to the highest bidder. The ECJ then decided that such a national regulation “cannot be qualified as state aid if the application of this regulation can lead to a price which is as close as possible to the market value of the agricultural property concerned”. The Property Movement Act does not fundamentally violate state aid law if its application leads to the property being sold at a price that is close to its market value .
Furthermore, in §§ 13 ff. GrdstVG an allocation procedure is regulated, according to which the agricultural holding can be allocated to one of the co-heirs by the agricultural court after the death of the farmer if there is no corresponding death disposal . The prerequisite, however, is that the farm is legally owned by a community of heirs .
Interesting in this context is the history of the Real Estate Movement Act. The real estate law of July 28, 1961 has been worked on for a particularly long time. The first ministerial draft was dated July 15, 1954. It included the possibility of a closed assignment of a farm to a co-heir under the heading of “making up the handover”. This part of the law was the most controversial in the legislative process. Particularly controversial were the questions as to whether the principle of the relevance of the testator's will should be taken into account, whether the compensation for the departing co-heir should be calculated on the basis of the unit value or the income value of the business, whether not only agricultural assets but also forestry assets should be allocable and whether the Allocation should also be permitted for other joint ownership groups , except for communities of heirs . In view of the market economy that has shaped the German economic system, the legislature finally opted for the mildest of the solutions in question. Nevertheless - according to Alfred Pikalo and Bernold Bendel in their 1963 GrdstVG comment - “the allocation remains an extremely questionable legal institution and a foreign body in our legal system” (since it contradicts the basic principles of the market economy, namely freedom of contract and protection of property). In the meantime there is no longer any federal competence. The previous real estate law continues to apply in the federal states until it is replaced by a state law. So far, this has only been done in Baden-Württemberg (ASVG).
Does the company belong to B. a continued community of property - a rare property regime that can still be found among farmers, especially in southern Baden-Württemberg - it cannot be assigned. Then the special regulations for the dispute of the continued community of property take precedence in the event of its termination through the death of the surviving spouse (§§ 1515 ff.
The history of property control in agriculture mainly includes the following stations:
- The Federal Council announcement of March 15, 1918 wanted to ensure food for the people in the time of need of the First World War and prevent the purchase of agricultural property by land speculators ( war profiteers ). For the first time, the Federal Council announcement made the farmers' disposal of agricultural land subject to licensing requirements. It was initially only intended to overcome the war-related hardship, but in the following years it became a permanent instrument for managing agricultural and social policy goals.
- The real estate traffic announcement of January 26, 1937 was primarily intended to implement the National Socialist blood and soil ideology .
- The control laws of the post-war period were primarily intended to ensure the nourishment of the people and pursued the socio-political goal of breaking up and preventing large estates .
- The Land Movement Act aims to improve the agricultural structure, keep farms in the hands of self-sufficient families and secure food for the population.
- Gerhard Ruby, in Groll, Practical Guide to Inheritance Law. Chapter: Agricultural special inheritance law. Otto Schmidt Verlag, Cologne, 2015
- Gerhard Ruby, Real Estate Act. in Burandt / Rojahn, inheritance law. CH Beck, Munich, 2014
- Joachim Netz: Real Estate Transfer Act, short commentary and large commentary. 2006
- Pikalo / Bendel, Real Estate Act , Commentary. 1963
- Karl Hasel : The Real Estate Act of July 28, 1961. An introduction. Deutscher Fachschriften-Verlag Braun, Wiesbaden-Dotzheim 1962
- BayAgrG: Art. 2 Exemption Limits - Citizen Service. Retrieved March 13, 2020 .
- Decision of the Federal Court of Justice of November 29, 2013. Accessed on July 16, 2015.
- judgment of the ECJ of 16 July 2015. Accessed July 16, 2015.