Security mortgage
The collateral mortgage is a subspecies of the mortgage is a mortgage that the assurance of certain assets used and in which the entry in the land register in respect of the secured claim is irrelevant.
General
First of all, the question arises why the law provides for the form of a security mortgage in Section 1184 (1) BGB , although it already regulates the mortgage in detail in Section 1113 ff. BGB . In order to distinguish the two from one another, the concept of the traffic mortgage has become commonplace for the latter in legal transactions; the law calls it "ordinary mortgage" in § 1186 BGB. The security mortgage is intended for special cases in which the commercial mortgage appeared to the legislature to be unsuitable. An essential feature of the security mortgage is its absolute dependence ( accessory nature ) on the secured claim, which the mortgagee cannot rely on the entry in the land register to prove . Therefore § 1138 BGB is excluded for the security mortgage according to § 1185 Abs. 2 BGB. The restriction on the marketability of the security mortgage resulting from this is reinforced by the exclusion of a mortgage letter, Section 1185 (1) BGB.
species
If the law itself establishes a mortgage, it chooses the security mortgage that is more favorable for the property owner .
- By law, a civil security mortgage arises in the following cases:
- The contractors , according to § 650e BGB for his claims from the construction contract require the granting of a security mortgage on the building site of the client.
- The owner of a shipyard can request the granting of a ship mortgage to the shipbuilding plant or the ship of the customer in accordance with Section 647a of the German Civil Code for his claims arising from the construction or repair of a ship .
- For builders , Section 650f (4) BGB provides for a builder security mortgage for unpaid wage claims on the client's building site, unless they have received any other security for his remuneration claim.
- The form of the securities mortgage is provided if it is ordered for claims from bearer or order papers , in particular for bearer bonds ( § 1187 sentences 1 and 2 BGB). So are bonds from issuers or other bearer and order papers from exhibitors collateralized by mortgages, only the collateral mortgage comes into question.
- As a maximum amount mortgage ( Section 1190 (3) BGB), if only the maximum amount up to which the property is to be liable is specified and entered in the land register, but the exact scope of the mortgage is reserved for the later determination of the secured claim.
- In enforcement law there is that
- Compulsory mortgage : According to Section 866 (1) of the German Code of Civil Procedure ( ZPO) , foreclosure on property takes place in three ways, namely through foreclosure auction , compulsory administration or by entering a security mortgage for the claim. At the request of the obligee , the land registry will register the compulsory mortgage on the basis of an enforceable title ( Section 867 (1) ZPO).
- Attachment mortgage : is a maximum amount mortgage which does not serve to satisfy the obligee, but to secure the foreclosure of the immovable property due to a monetary claim (§ § 932 , § 916 Abs. 1 ZPO).
- Security mortgage by virtue of surrogation ( Section 848 (2) sentence 2 ZPO): The surrogation mortgage is the result of the fulfillment of a pledged or attached claim to the transfer of property or a ship ( Section 1287 sentence 2 BGB). It arises at the time of the transfer of ownership and replaces the creditor's claim for return of movable items (§ § 848 Paragraph 2, § 847a Paragraph 2 ZPO).
- Security mortgage against the buyer of the property in the foreclosure auction : If the buyer does not make the cash bid on the auction date , this claim against the buyer is transferred to the beneficiaries ( § 118 ZVG) and this claim is secured by a security mortgage on the auctioned property ( § 128 Paragraph 1 ZVG).
- The compulsory mortgage under tax law : In Section 322 (1 ) AO, tax law refers to the provisions for the compulsory mortgage when enforcing the taxpayer's immovable property . The state can thus secure the taxpayer's arrears taxes initially by means of a forced mortgage, but also - in the event of non-payment - collect them by auctioning off property.
particularities
The security mortgage is a pure book mortgage ( Section 1185 (1) BGB), for which no mortgage letter can be issued. It is therefore not marketable and cannot be transferred like a letter mortgage. This inadequate marketability makes them unsuitable for credit institutions as a means of securing credit ; § § 406 ff. BGB also play a major role here. With the security mortgage, it is also possible to raise objections (and not just defenses as with the commercial mortgage) from the old (first) debt relationship . The security mortgage must be expressly designated as such in the land register ( Section 1184 (2) BGB). It is strictly ancillary (Section 1184 (1) BGB) and is therefore based on the existence of the secured claim. The security mortgage is of particular importance in security enforcement (compulsory mortgage). By way of foreclosure, the obligee can have a security mortgage entered in the land register against the will of the owner ( Section 720a (1) lit. b ZPO). The prerequisite is an enforcement order that proves the existence of the claim, which must be over 750 euros.
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Individual evidence
- ↑ so already the Reichsgericht 1937 in RGZ 123, 169, 170
- ^ Jan Wilhelm, Property Law , 2007, p. 657
