Purgation (deposit)
As purgation (mortgage cleanup, lat .: purgare, clean 'rel .: purgatory, purgatory ') is the cleanup of the property from mortgage understood if these mortgages significantly exceed the value of the property. This mortgage adjustment means a significant encroachment on the rights of the mortgagee and also on the constitutionally guaranteed right of ownership , in that the purchaser of a property is empowered by the legislature from the acquisition of the property to finally redeem the property liens on the property by paying an amount (transfer fee) .
Purgation is intended to create the possibility of redeeming excessive deposits. In Switzerland , it is up to cantonal law whether a purge is generally permitted and how it is structured. In Liechtenstein , purgation is regulated in Art 300 and 301 Property Law (SR) and in France in the Civil Code .
Legal nature of purgation
The purgation is a legally granted unilateral right of a potential purchaser of a property if he meets the requirements stipulated in the law and the previous pledgee do not object to the transfer.
requirements
The unilateral redemption of mortgages is generally permitted under various conditions:
- no personal liability of the potential purchaser of the property,
- no enforcement proceedings or debt enforcement proceedings against the property,
- valid liens that exceed the value of the property upon acquisition of the property,
- Notification of the planned redemption to the pledgee (loan creditor),
- Encumbrance of the property with liens and ancillary claims and interest must be significantly higher than the realizable value of the property,
- Willingness to pay the property price (market price) by the potential buyer to the pledgee.
Due to the very liberal solution found in Art 300 SR about purgation, this comes about in Liechtenstein largely without the involvement of the court . In Switzerland, the purgation procedure is regulated by cantonal law . In Switzerland, the amount of the transfer fee can be determined by an official estimate instead of a public auction at the request of the creditors . However, this regulation was not adopted in Liechtenstein.
Distribution plan
In contrast to the law of the Swiss cantons, which permit purgation, there is no regulation as to whether it is necessary in Liechtenstein to draw up a distribution plan for the redemption amount, which is distributed among the creditors according to their rank.
Public auction
If the pledges to be redeemed (loan creditors) do not agree with the offer of the potential purchaser of the property, they can demand a public auction of the pledge within a month after notification of the purchase of the planned purchase . This also applies if only one pledgee does not agree to the offer.
The request of the pledgee for a public auction does not invalidate the offer of the potential acquirer, the running of the deadline is not inhibited by the public auction. The potential purchaser can, however, improve or withdraw his offer at any time, but then has to bear the costs of the auction.
Expiry of the mortgage liens
Through the successful purgation, all mortgages encumbering the property up to this point ( mortgage , mortgage note or valid ) are finally redeemed, even if these are only partially covered in the transfer fee. However, this does not apply to other rights in rem, unless there are statutory exceptions.
A personal obligation of the previous debtor to the loan creditors and former mortgage holders (e.g. a guarantee or a contractual obligation from the claim) is not affected by the successful purgation.
literature
- Antonius Opilio : Working Commentary on Liechtenstein Property Law. Volume 2: Art. 265 to Art. 571. Legal status : January 2010. Edition Europa, Dornbirn 2010, ISBN 978-3-901924-25-5 , Art. 300 f.
Sources and References
- ↑ Purgation is permitted and regulated in 15 of the 26 cantons in Switzerland.
- ^ Property law (SR) of December 31, 1922
- ↑ See Art 300 SR (Liechtenstein), Art 828 ZGB (Switzerland). Furthermore, the legal situation in Liechtenstein and Switzerland is largely presented.
- ↑ According to Liechtenstein and Austrian law, compulsory enforcement includes the establishment of a compulsory lien, compulsory administration and compulsory auction .
- ↑ Cf. Art 153, Paragraph 3 of the Federal Act on Debt Collection and Bankruptcy (SchKG) of April 11, 1889 (Switzerland)
- ↑ Art 830 ZGB
- ↑ Art 301 para. 1 SR, Art 829 ZGB
