Locus principle

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The locus principle decides in the land register law on the ranking of several rights registered in the same land register. In addition to the tense principle, it finally determines the legal ranking that is important when auctioning off the property .

application

German property law is governed by the priority principle . In § 879 , para. 1, sentence 1 BGB is determined accordingly that the Lokusprinzip at multiple, registered in the same compartment of the land register rights (eg. As multiple land charges ) is to be applied. After that, the optical order of the entries in section II or section III of the land register decides the order of precedence (according to the place, lat. Locus ). The locus principle cannot be applied if there are entries in both sections of the land register.

impact

The real estate lien III / 1 has priority over III / 2, the right II / 2 is subordinate to the right II / 1. This order of entry results automatically from the passage of time, because a land charge entered later according to III / 1 can only be entered on III / 2. However, if the rights are given the same date of entry in the same department, they have equal status ( Section 45 (1) GBO), which is to be made clear by the land registry by a notation of equal status . Without this note, in terms of substantive law, they would have the order of precedence based on the locus principle of Section 879 (1) sentence 1 BGB; in this respect, § 45 GBO even has substantive effect. The date of entry is therefore of decisive importance in the ranking. However, if several rights to be entered in the same department on the same day are not of equal rank, the notary making the application must clarify this with a ranking ( Section 45 (3) GBO). Then there is no indication of equality.

Foreclosure

The locus principle can only be applied if, at the time of the foreclosure auction, only rights are entered in one section of the land register. In the foreclosure auction, it determines the final ranking that is decisive for the distribution of the auction proceeds ( § 11 ZVG ). In the case of last-ranking rights, there is a risk that they will go completely or partially empty and that the creditors secured in the land registry will suffer a loss. The legal ranking ultimately determines a creditor's risk of default. However, if there are rights in both departments, the locus principle must be replaced by the tense principle.

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