Property law (Germany)
The property law refers to a practice area of the Civil Code (BGB) , which the legal relationships of entities to matters within the meaning of § 90 also regulates BGB and sporadic rights. This includes movable property ( Fahrnis ), immovable property ( land ) as well as rights equivalent to land , as rights but also, for example, the usufruct and the right of lien (compare § 1068 BGB and § 1273 BGB).
Property law is codified in Germany in the third book (§ § 854 to § 1296 ) of the BGB . Its primary task is to assign things to certain people, on which the essence of rights in rem is based. Combined with absolute protection from legal action, it regulates the existence of the legal relationship, i.e. the powers of the owner or owner , but also changes to it, which may occur , for example, through transfer of ownership and transfer of ownership.
Outside of the BGB, there are other special property law provisions, such as the Condominium Act or the Heritable Building Rights Act .
Principles of property law
German property law knows five principles: publicity (obviousness), absoluteness (generally binding), specialty (definiteness), the limited number of property rights (compulsory type, also: typification) and abstractness. In some cases, the principle of priority , which is anchored in Section 185 (2) sentence 2 of the German Civil Code, is counted among the property law principles. Lawyers note the five principles under the abbreviation PASTA after the first letters.
The rights in rem that everyone has to respect must be recognizable for everyone. This is different from the law of obligations, where the agreement only applies between the parties and therefore does not have to be made evident to others (relativity of the obligations). Publicity for movable property is ownership and for land the land register . The change in the legal situation in rem on a movable property therefore requires a transfer of ownership, whereas an entry in the land register for real estate. In principle, the legal presumption applies that the publicity carrier is also the person entitled in rem.
The principle of absoluteness means that property rights are effective against everyone (absolute effect). This is different from the law of obligations , where the obligations only exist between the parties (relative effect). The principle of absoluteness brings about comprehensive legal protection through its real effect on everyone else .
The specialty principle in the strict sense of the word means that a right in rem can only exist in relation to a single thing or that every thing is itself the subject of its own rights in rem; In principle, German property law does not recognize any real right to aggregates.
Example: The owner of a library does not own the library as such (or all books as a whole); he owns every single book. Thus, the owner cannot transfer the contents of the library as a whole, but must transfer ownership of each individual book.
The principle of specialty is often equated or confused with the principle of certainty . This is closely linked to the specialty principle and states that real rights can only exist in a very specific thing. Unlike the law of obligations, property law has no rights to generic matters . This means that only individualized items can be used. This is of course a principle not only of property law, but of all disposition transactions . For the transfer of a right in rem, this means that it must be precisely determined or at least clearly determinable which right in rem the transfer relates to.
The rights in rem, unlike in the law of obligations , where new types of contracts can be created by agreement, are limited to the cases specified in the law .
- Right of first refusal
- Real load
- Real estate liens
Due to the enumerative enumeration of rights, there is a numerus clausus of real rights in property law. Along with the principle of publicity, the type requirement ensures clarity for third parties. This legal certainty is necessary because the rights in rem are absolutely effective. In contrast to the law of obligations, there is no freedom of disposal in the form of freedom of contract ( § 311 BGB).
An exception to the compulsory type is the entitlement right .
Principle of abstraction and separation
The principle of abstractness is based on the principle of separation . The principle of separation separates contractual obligations and dispositions in rem. The abstraction principle ensures that the legal effectiveness of causal transaction and disposition are also independent. The abstractness also applies not only to property law, but to almost all disposal transactions.
Ownership of movable property
Acquisition of ownership of movable property
Protection of property
Limited right in rem to movable property
Real estate law
Land register law
The reservation is an announcement in the land register of a future acquisition of rights to a property to which the person in whose favor the reservation was entered has a claim .
- Example: E sells his property to K. K has not yet become the owner: E can still sell the property to L. If he does so and L is entered in the land register, K remains only a contractual obligation for damages; however, acquisition of property is excluded. In order to prevent this, K can secure his right to transfer by means of a reservation. Later orders are then ineffective against him.
According to § 883 or § 885 BGB, the creation of a reservation is dependent on four requirements:
- the existence of a claim that can be reserved,
- a permit or an injunction,
- the entry in the land register and
- the authorization of the person concerned.
Real estate liens
The land charge, like the mortgage, is the real right to demand payment of a certain amount of money from a piece of land or a right equivalent to real property (e.g. an apartment or a heritable building right) ( Section 1191 (1) BGB). Unlike this, however, as a pure right of exploitation, it is not dependent on the existence of a claim - it is not accessory. However, according to Section 1192 (1) of the German Civil Code (BGB), those provisions of the mortgage that are not based on the accessory nature of the mortgage apply to the land charge. The land charge is regularly ordered as a so-called security land charge to secure the loan - in practice even more often than the mortgage. The claim and land charge are only legally linked by a security agreement. This is precisely where the economic advantage over the mortgage lies: The claim to be secured can be exchanged informally, which is advantageous in the case of rapidly changing claims. In addition to the land charge to secure a claim, there is the (practically not very common) option of ordering an isolated land charge.
The land charge arises either through agreement and registration according to § 873 BGB or through conversion of a mortgage according to § 1198 BGB. Regularly is on the mortgage, a letter issued ( letter mortgage to § 1116 para. 1 BGB), unless in the Land Registry entered is that the letter issue is excluded (land charge). The land charge is transferred by agreement and delivery of a letter or agreement and entry in the form of § 1154 BGB. Section 1153 of the German Civil Code (BGB) is based on the accessory nature of the mortgage and is consequently not applicable, with the result that the claim is not affected by this: two different persons can therefore be entitled to land charge and claim.
If the claim to be secured exists right from the start, a security land charge arises due to a lack of accessory nature - § 1163 BGB is inapplicable. After a minor opinion, the non-existent claim leads to the nullity of the security agreement by § 139 . The collateral provider is therefore entitled to reimbursement under the law of enrichment under Section 812 (1) sentence 1 old. 1 BGB. The prevailing opinion did not follow this: Instead, the security contract is interpreted in such a way that if the claim does not exist, there is a right to transfer back.
Conflict of laws
Basic connection (Art. 43 Para. 1 EGBGB)
The principle of the lex rei sitae applies to property rights : Property law issues are to be judged according to the law of the state in which the property is located. This applies to movable and immovable things. In this way, traffic interests are best served and legal traffic does not have to reckon with burdens on the matter that are unknown to domestic law . In the case of real estate, this often means that the court jurisdiction and applicable law are in sync. According to the prevailing opinion, party autonomy is excluded. The escape clause of Art. 46 EGBGB exceptionally allows another law if there is a much closer connection to this. This is usually discussed when there are no connections to third parties at the location.
Scope of the property law statute
The thing is defined as in substantive law according to § 90 BGB. In the case of securities, only the right to paper is subject to the property law statute ( lex cartae sitae ). The securitized right is to be assessed according to the securities law statute. The property law determined determines the permissible types and content of rights in rem.
- Example: German law recognizes security of property as a security of property without possessions. Austrian law, on the other hand, only allows the bargaining chip . If Austrian law is invoked, security property cannot be established.
With regard to the qualification of foreign legal institutions (for example the Anglo-American trust ), the question must be asked whether they only work inter pares (then under the law of obligations) or erga omnes (then under property law). The property law statute determines the emergence, continuation and loss of real rights. When connecting, the German abstraction principle must always be observed: Even in international private law, obligations under the law of obligations and disposition under property law are tied up separately. Acquisition in good faith is also made from the lex rei sitae .
Change of statutes
Movable items can easily lead to a change in the statutes. Here traffic interests and the protection of vested rights are to be reconciled. In the case of open facts , a decision must be made in full according to the new statute. According to Art. 43 Para. 3 EGBGB, factual processes abroad are to be treated like domestic ones .
Completed facts are those in which the change in the law has been carried out completely under the old statute or has finally failed there. To protect vested rights, such facts are subject to the old statute. This is problematic, however, if a right was established in a thing abroad that is unknown under domestic law. According to Art. 43 (2) EGBGB, no rights can be exercised on a thing that is contrary to the legal system of this state.
- Example: In France, a non-possessory registered lien is established. The thing will be brought to Germany. German law does not recognize a non-possessory lien.
According to Art. 43 (2) EGBGB, such a right remains in place in Germany. The only question is what effects it will have domestically. According to the prevailing opinion, it is recognized that the non-possessory registered lien does not contradict German property law, since this knows institutions that are functionally equivalent with retention of title and assignment by way of security . According to the prevailing opinion, it is therefore treated as a simple lien with the consequences of Section 805 ZPO .
Since the right continues to exist and is only limited in its exercise by the new right, it also comes back to life as soon as it is brought to a country that knows this legal institution.
If the seller has to send the goods abroad, one speaks of international mail order sales . According to the prevailing opinion, the lex rei sitae also applies here. According to another opinion, however, the escape clause of Art. 46 EGBGB should come into play here in order to guarantee a uniform connection of the real legal transaction, regardless of the often accidental question of whether the process is open or closed .
If the goods are available during transport, one speaks of the problem of res in transitu. The location here is often coincidental or the thing is located in a sovereign area. Therefore, the law of the state of the location does not usually apply here, as its interests are usually not affected. Instead, the law of the state of the future destination will be applied.
For aircraft, watercraft and rail vehicles, according to Art. 45 EGBGB, the place of registration or , alternatively, the usual location of the means of transport is linked. Since motor vehicles are not mentioned separately, according to the prevailing opinion, the basic rule of Art. 43 Para. 1 EGBGB applies to them . For motor vehicles that are used permanently in international traffic, a reduction in opinion is aimed at the place of registration on the basis of Art. 46 EGBGB.
- Hans Hermann Seiler : Property Law - General Teachings . In: Michael Martinek (Ed.): J. von Staudinger's Commentary on the Civil Code - Cornerstones of Civil Law . Sellier - de Gruyter, Berlin 2008, ISBN 978-3-8059-1065-1 , pp. 955-978 .
- Fritz Baur , Jürgen F. Baur , Rolf Stürner : Property law . 18th edition. Beck, Munich 2008, ISBN 978-3-406-54479-8 .
- Andreas Neef: BGB II: Law of movable property . 1st edition. Kohlhammer, Stuttgart 2010, ISBN 978-3-17-020933-6 .
- Hans Josef Wieling : Property law . 5th edition. Springer, Berlin 2007, ISBN 978-3-540-37403-9 .
- Jan Wilhelm : Property law . 3. Edition. de Gruyter, Berlin 2007, ISBN 978-3-89949-325-2 .
- Manfred Wolf / Marina Wellenhofer : Property law . 31st edition. CH Beck, Munich 2016, ISBN 978-3-406-59462-5 .
- ↑ O. Palandt (Ed.), P. Bassenge (Ed.): Bürgerliches Gesetzbuch. 68th edition Beck, Munich 2009, ISBN 978-3-406-58110-6 , before § 854 BGB marg. 1.
- ↑ see also Wolf, Manfred / Wellenhofer, Marina , Property Law, 26th edition, Munich 2011, § 2 Rn. 11
- ^ A b Hans Wieling : Property Law . 5th edition. Springer, Berlin 2007, § 32. Land charge.
- ^ Rolf Serick : Reservation of title and transfer of security . tape I , 1963, § 4 II 4, p. 63 .
- ↑ Othmar Jauernig : § 1191 BGB . In: Othmar Jauernig (Ed.): Bürgerliches Gesetzbuch. Comment . 13th edition. CH Beck, Munich 2009, Rn. 9.