Cancellation approval
As deletion authorization is in the land registry , the general consent to cancellation of a land registry law designated by the deletion of the person concerned. Specifically, this means the lender's consent to the deletion of a mortgage serving as collateral .
General
The land register law is strictly formalized. The application of both entries and their removal from the land register require a minimum of a notary certified form. For the deletion of a land register right, a declaration of cancellation by the person entitled and entry is required from a material and legal point of view ( Section 875 (1) BGB ). In addition, an application from a party involved ( Section 13 (1) GBO ) and the approval of the person affected by the deletion (creditor) are required for formal and legal purposes ( Section 19 , Section 29 (1) GBO). According to the material and formal principle of consensus, both the declaration of annulment and the application and approval must be aligned with the deletion of a certain land register law. The deletion of approval aimed at the deletion of a right in rem in Division II ( easements , limited personal easements , reservations and other restrictions) or Division III ( mortgages as mortgage , land charge and annuity charge ) of the land register from, even if they colloquially to the cancellation of mortgages and Mortgage is narrowed.
The deletion permit is an abstract, unilateral declaration by the person entitled to receive it that he is giving up a right entered in the land register. According to the recognized view, a deletion permit contains a declaration of surrender in terms of material and law with regard to the real estate lien in accordance with Section 875 (1) of the German Civil Code (BGB), whereby this is a legal declaration of intent belonging to substantive law that does not conceptually correspond to the deletion permit belonging to the formal land register law and only right does not cover with the cancellation request.
execution
The declaration of cancellation by the person entitled, as well as the application, consent of the property owner (only in the case of mortgages ) and approval are usually summarized in a notarized uniform document on the cancellation authorization. In practice, the wording of the document therefore includes the formal and legal cancellation approval, and in terms of the meaning often also the substantive and legal declaration of cancellation. Whether this is the case, however, is a matter of interpretation in the individual case. With a few exceptions ( official deletions according to § § 84 ff. GBO; in the case of compulsory mortgages, authorities approve on their own responsibility by signature and official seal; § 29 Paragraph 3 GBO), the approval of the deletion requires a publicly certified form ( § 29 Paragraph 1 GBO) .
In practice, it is usually the notary who sends the document, generally referred to as the deletion permit, to the land registry , which first has to check the formal requirements for deletion according to Section 26 FamFG . The application ( § 13 GBO), the approval ( § 19 GBO) and - only in the case of the deletion of real estate liens - the consent of the property owner ( § 27 GBO) must be formally evident from the deletion authorization for the land registry . If there are no complaints, the deletion will be entered in the land register as requested. However, the deletion is not carried out by removing the old entry, but by entering a deletion note ( Section 46 GBO) in the appropriate columns of the relevant section of the land register sheet. In addition, the deleted right is "reddened" (as a reading aid, but not legally required) in accordance with Section 17, Paragraph 2 of the GB Decree, ie. H. underlined in red or reddened as a block by drawing a red line above the first and below the last line of the right, which are both connected by another line from top left to bottom right. In the printouts of the land register, which is now in electronic form throughout Germany, the "reddening" appears as black lines for technical reasons. Once it has been entered, the certificate will be added to the basic files ( Section 10 GBO). Legal transactions may assume that a deleted right (refutable) does not exist ( Section 891 (2) BGB).
Deposit release
The release of the pledge is, like the deletion authorization, a purely procedural act under land register law. The release or release of the pledge is a special form of cancellation of a land register right. It is the partial deletion of a uniformly registered land register law on several properties , which should, however, continue to exist on at least one property. A pledge release is specifically required for total real estate liens if at least one or at least one parcel of a plot of land is to be released from joint liability or released from several liable plots without the general right being revoked. In contrast to the waiver according to § 1168 BGB, the effect of the release from custody on the mortgage leads to the expiry of the right only on the property released from joint liability, without this legal effect being dependent on the consent of the owner according to § 27 GBO. The legal success of the waiver here is therefore identical to that of the annulment. The only difference is that the cancellation requires the agreement of the obligee and the owner, while the waiver according to § 1175 Abs. 1 Satz 2 BGB is based solely on the unilateral declaration of the obligee. In case of doubt, it must therefore be assumed that the obligee's declaration of release of the pledge is directed towards a waiver in accordance with Section 1175 (1) sentence 2 of the German Civil Code. The intended legal success is brought about without a further declaration by the owner, so that the entry in the land register is expressed by a deletion note in accordance with Section 46 Paragraph 2 GBO (so-called "encumbered or lien-free depreciation") and can be made without proof of owner consent.
Deletion of real estate liens
The most common mortgages are in favor of credit institutions. The starting point of deletion procedure is then the law of obligations agreed in the land charge security agreement whereby a credit institution ordered mortgage shall release after completion of the security purpose. When a loan claim secured by a land charge is repaid, the property owner has a suspensive right to repayment of the land charge against the bank. In the meantime, this right to restitution has been so strengthened by case law that it does not even have to be mentioned in the security agreement. The final repayment of the credit claim justifies a refund claim from the security agreement, even without express provision. The partial repayment of a secured claim also triggers a claim on the part of the security provider for the restitution of a corresponding part of the security land charge if the purpose of the security no longer applies. The claim arises with the establishment of the land charge, subject to the condition precedent of repayment of the secured claim, but only for the corresponding lowest part of the land charge. The creditor of the restitution claim is the property owner, the debtor is the collateral-taking bank. This right to restitution is carried out by the bank through a cancellation authorization, which requires the consent of the owner ( Section 27 GBO).
In the case of mortgages , the legal situation is less complicated because of its accessory nature. Due to the strict link between the mortgage and the secured claim, a final owner mortgage is automatically created in the amount of the repayment via the detour of an owner mortgage ( Section 1177 (1) sentence 1 BGB). However, this legal situation is not visually recognizable in the land register, so that the mortgage creditor has to grant a cancellation approval in the event of full repayment. In the case of a mortgage, the deletion authorization is only of a declaratory nature in terms of property law, and its entry also visually suspends the right.
Erasable receipt
The cancellation by authorization for deletion forces the immediate deletion of a mortgage. If, however, a land charge is to be retained by the owner as owner land charge after final repayment of the secured loan, the land charge creditor must pronounce a waiver in accordance with § 1192 , § 1168 Paragraph 1 BGB. Only this leads to the owner's land charge, which the property owner can use as collateral for future borrowing. However, the owner can cancel the unused real estate lien at any time by making his own declaration of surrender and have it deleted from the land register.
Bearing the costs for deletion permits
By issuing a cancellation permit for repaid land charges or mortgages, credit institutions are complying with a legal obligation and, according to the Federal Court of Justice, are therefore not allowed to demand any payment for this. Only the transfer of disbursed notary and land registry costs is permitted.
Individual evidence
- ↑ BGH NJW 1974, 1083.
- ↑ Form of the savings bank organization (PDF; 43 kB)
- ↑ BGH NJW 1973, 323.
- ↑ BGH NJW 1985, 100.
- ↑ BGH WM 1990, 423.
- ↑ BGH NJW 1986, 2108.
- ↑ BGH, judgment of May 7, 1991, Az .: XI ZR 244/90
- ↑ Cologne Higher Regional Court , judgment of February 28, 2001, Az .: 13 U 95/00
