Real Estate Law (Germany)
Real estate law covers all legal aspects that have to do with real estate. The term can only be grasped if the focus is on the individual areas of law in which "real estate law" takes place. The law does not use the term itself. There is no direct definition. Anyone who builds, brokers, buys or sells real estate is dealing with real estate law. The text is limited to an overview of the essential legal provisions.
overview
In real estate law, a distinction must be made between public law and private law. Public law regulates the legal relationships of z. B. Builders and property owners in relation to state institutions and relations with the general public. Private law is based on the legal relationships between private individuals. Public law regulates, for example, who can erect a building under what conditions, private law regulates how ownership of land is transferred or what rights apply in the neighborhood.
Private law regulations
Real estate purchase contract law
The most obvious point of contact with which the citizen comes into contact with real estate law is real estate sales contract law. It can be found primarily in the German Civil Code. Purchase contracts for land are notarized ( Section 311b BGB). The transfer of ownership of a property occurs when the seller and the buyer agree on the transfer of ownership and by entering the transfer of rights in the land register ( § 873 , § 925 BGB). Because of the special importance of the transfer of ownership and the associated high material assets, the necessary agreement, the so-called conveyance, must be declared in front of a notary when both parties to the contract are present at the same time. Representation is permitted. Sales contract law is characterized by a variety of terms . They are part of every notarial contract and should be known to the parties. Notice of conveyance, encumbrance power of attorney, land charge, right of first refusal, purchase price due date or transfer of benefits and encumbrances are mentioned as examples.
Notarization Act
Since almost all processes in connection with the transfer of ownership and the encumbrance of real estate are subject to notarization, the Notarization Act regulates the associated official duties of the notary. The notary is obliged to read the written record of a notarization to the parties involved, to have it approved and signed by hand. To this end, he should research the will of those involved, clarify the facts and instruct those involved about the legal scope of the transaction. The notary should submit draft contracts for inspection two weeks prior to the notarization if possible ( Section 17 (IIa) No. 2 BeurkG).
Land register regulations
Land and all rights relating to the property (e.g. land charge, right of way) and obligations (e.g. construction load) must be entered in the land register. The land register regulation regulates what is entered in the land register with what content. The land register is kept at the district court, land registry department. A land register sheet is created for each property, from which all rights and obligations relating to the property can be found ( Section 3 (I ) GBO).
Heritable building right law
Instead of selling a plot of land, the owner can also order a heritable building right in favor of a third party. To this end, he encumbrances his property by granting the person entitled to heritable building rights the alienable and inheritable rights to erect a building on the property. The leasehold law regulates the details.
Broker Law (BGB)
The brokerage law is rudimentary regulated in §§ 652 ff BGB. The broker's commission is a success commission that the broker only earns if he successfully mediates. When it comes to arranging housing, the Housing Agency Act regulates further details.
Housing Agency Act
The Housing Agency Act strengthens the rights of tenants. The principle of success applies. According to this, the broker only earns his commission if he successfully mediates a prospective tenant. The law also stipulates the prohibition of advance payments, the prohibition of collecting ancillary fees and the coupling of the brokerage business with the assumption of further obligations such as the purchase of kitchen equipment. In addition to these provisions under private law, the law also contains administrative offense provisions that punish violations with fines. Since 2015, the legislator has also laid down the ordering principle in Section 2, Paragraph Ia WoVermittG . Thereafter, only the landlord who hires the broker to mediate tenants pays the broker's commission.
Real estate agent and property developer ordinance
The Real Estate Agents and Builders Ordinance (MaBV) contains special professional practice regulations to protect the client from dubious traders. The regulation applies to all persons who require a permit according to § 34c GewO. In addition to special bookkeeping, recording, information and reporting obligations, brokers, property developers and construction supervisors who accept assets from their clients to carry out the orders must provide the client with security in the amount of the assets (e.g. bank guarantee) or maintain an insurance policy .
Housing tenancy
The tenancy law governs the rights and obligations of landlords and tenants in tenancy ( §§ 535 ff BGB). The tenant's right of use is limited to the use of the rental premises. Tenancy law primarily affects renting of residential properties, in which the rooms are left for private use by the tenant. As a rule, leases are structured using a form lease, the clauses of which are subject to judicial control. In the past, the courts have forbidden many clauses as unreasonable discrimination against the tenant (e.g. overly rigid time requirements for the tenant's obligation to carry out cosmetic repairs).
Commercial rental law
Commercial space tenancy law affects the rights and obligations of tenants of commercial space. The social protection regulations of tenancy law do not apply (e.g. termination by the tenant only if the landlord has a legitimate interest). Section 580a BGB prescribes separate notice periods. In addition, the arrangement of the lease is largely left to the agreement of the parties and in the event of a dispute can be checked by the courts for inappropriate clauses.
Operating Costs Ordinance
Tenants are regularly obliged under the rental agreement to pay the basic rent as well as the maintenance costs of the property ( § 556 BGB). The operating costs can be shown as a flat rate and as an advance payment. The landlord has to settle the advance payment for the operating costs annually. Details about the apportionable operating costs and their billing can be found in the Operating Costs Ordinance (BetrKV). In addition, the heating costs ordinance (HeizkostenV) describes the obligations of the landlord when billing heating energy.
Lease right
The tenant of a piece of land or a property is entitled to use the property beyond the mere use of the property ( Section 581 BGB). Example: Harvesting a fruit plot, using the furniture of a restaurant.
Condominium Act
If a property consists of several self-contained residential or commercial units, apartment and partial ownership can be established by means of a notarized declaration of division . Each apartment and part owner then acquires at its unit private property . Communal areas are jointly owned by the apartment owners' association. Details stimulate the Condominium Act . Larger apartment owners' associations are usually managed by a WEG administrator. Commercial property managers and rental property managers require a permit pursuant to Section 34c GewO for the first time from mid-2018 due to the “ Law on the Introduction of a Professional Admission Regulation for Commercial Real Estate Agents and Residential Property Managers ” .
Public law regulations
Brokerage law (trade regulations)
In the real estate sector, a lot takes place with the participation of real estate agents. Real estate agents require a business license according to § 34c GewO. To do this, the broker must prove that he is personally reliable and that he lives in proper asset certificates. Permission can be applied for by both natural and legal persons (e.g. a GmbH) for whom the board of directors or managing directors must provide the necessary evidence in addition to the GmbH. A change in the management of the GmbH must be reported to the competent authority immediately. The requisite reliability is lacking if the applicant or manager has been convicted of a crime, a property offense or a bankruptcy offense in the last five years. Orderly financial circumstances require that bankruptcy proceedings have not been opened or rejected for lack of assets and that the managing director has not provided the financial information.
From mid-2018, according to the " Law on the Introduction of a Professional Admission Regulation for Commercial Real Estate Brokers and Residential Property Managers ", brokers are obliged to train themselves regularly for 20 hours within three years. The originally planned certificate of competence was not implemented. Violations of the obligation to continue training can result in fines. Independent of this, competent real estate agents have the appropriate skills, which they have acquired, for example, in an IHK-certified training course to become a real estate agent.
Building Code
The building code aims at an orderly urban development. It includes the preparation and management of the structural and other use by the land-use planning in the responsibility of the municipalities, subdivides the permissibility under building planning law according to areas with development plans, in connection with built-up districts and the outside area, regulates the expropriation law and the development contribution law. To simplify the law, the Building Code and the Urban Development Promotion Act, which previously applied in parallel, have been combined in a single law.
In addition, the Valuation Ordinance for determining the market values of land (ImmoWertV), the Building Use Ordinance , in which the structural use of land is outlined (division of land, e.g. into purely residential areas, general residential areas, village areas, mixed areas or commercial areas), apply. The standard land value guideline provides information on how to determine the standard land values of properties. The real value guideline (SW-RL), comparative value guideline (VW-RL) and the earnings value guideline (EW-RL) provide information on determining the real or comparative values of real estate.
State building regulations of the federal states
In addition to the building code, the state building codes of the federal states regulate details of the development of properties (example: building code for Berlin - BauO Bln). For example, spacing areas or the structural design of systems or general requirements for construction and construction products, for the fire behavior of building materials and components are specified. The state building regulations contain regulations on escape routes, technical building equipment, usage-related requirements for common rooms and apartments or parking spaces, stipulate the basic obligations of those involved in construction and regulate the tasks and powers of the supervisory authorities as well as the approval procedure for the development of a property.
Energy Saving Ordinance
The Energy Saving Ordinance contains regulations on energy-saving thermal insulation and energy-saving systems engineering in buildings (EnEV) and obliges building owners to proceed in an energy-saving manner when building new buildings and fundamentally renovating existing properties. Owners who want to sell their property are obliged to hand over an energy certificate to the prospective buyer on the occasion of the inspection , from which the energy requirement of the property is determined ( § 16 EnEV).
Tax law
The real estate transfer tax law regulates the incurrence of real estate transfer tax when selling real estate. It obliges the buyer to pay real estate transfer tax in accordance with the agreed purchase price. The property can only be transferred to the purchaser in the land register when the locally responsible tax office has issued a clearance certificate after payment of the tax.
The other tax laws also contain a large number of regulations specifically for real estate. The Inheritance Tax Act, for example, stipulates in Section 13 (I) No. 4a ErbStG that the gift of a property to the spouse remains tax-free during the lifetime of the giver if the property is used for his own residential purposes (family home) and the recipient lives in it for ten years. The same applies in the event of the giver's death as the testator. The tax exemption also benefits children of the testator if the living space does not exceed 200 m² and the family home has been lived in for ten years ( Section 13 (I) No. 4c ErbStG).
According to the Income Tax Act, rental income from private real estate is taxable as income from renting and leasing (Annex V) ( Section 21 EStG).
See also
literature
- German Tenants' Association: The Tenant Lexicon, 2015/2016 edition, ISBN 978-3-442-17405-8 .
- Rainer Burballa: Current commercial space rental law, Erich Schmidt-Verlag, 2nd edition 2012, ISBN 978-3-503-15663-4 .
- Harz, Kääb, Riecke, Schmid: Handbook of the specialist lawyer, tenancy and residential property law, Luchterhand-Verlag, 3rd edition 2011, ISBN 978-3-472-07835-7 .
Individual evidence
- ↑ Hans-Armin Weirich: Contract drafting in real estate law . Ed .: German Lawyers Academy. 3rd edition Beck-Verlag, 1997, ISBN 978-3-406-40149-7 .
- ↑ Info 11: Cosmetic repairs . In: Berliner Mieterverein eV October 25, 2012 ( berliner-mieterverein.de [accessed October 4, 2017]).
- ↑ Announcement of the guideline for the determination of standard land values (land value guideline - BRW-RL). (PDF; 120 kB) In: Bundesanzeiger No. 24 February 11, 2011, accessed on February 19, 2019 .
- ↑ Announcement of the guideline for determining the real value (real value guideline - SW-RL). (PDF; 862 kB) September 5, 2012, accessed on February 19, 2019 .
- ↑ BAnz AT 04/11/2014 B3
- ↑ Guideline for determining the earnings value (Earnings Value Directive - EW-RL). (PDF; 285 kB) November 12, 2015, accessed on February 19, 2019 .
