Security land charge

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Land charge is banking a mortgage , as collateral for a bank loan is used.

General

The Civil Code (BGB) known as mortgages the mortgage , mortgage and annuity charge . Only the land charge and mortgage can be used as collateral. In the banking sector, the land charge prevailed in 90% of the cases, which, according to Section 1192 (1) BGB, does not require a (credit) claim. This provision separates the land charge - unlike the mortgage - in terms of property law from the claim and makes it abstract (more precisely: non- accessory ). In order to establish a connection ( effective under the law of obligations) between the land charge and the claim to be secured, the Kautelarpraxis and the case law of the Federal Court of Justice have further developed the land charge into a security land charge .

The security mortgage can be ordered as a lien on land and land rights . The latter property rights, which can also be encumbered with security land charges, include apartment ownership , partial ownership , heritable building rights and mine ownership . Ship ownership can only be encumbered with a ship mortgage ( Section 24 SchiffsRegG).

features

Significant changes in the law relate to the security agreement now mentioned in the law and the effects of the Risk Limitation Act. Today's security land charge is a pure third-party land charge that secures claims of other creditors. A distinction must be made between this and the land charge originally registered for the property owner .

Security agreement

The land charge was, and is characterized in that - between the lender and guarantor abzuschließender - surety ( purpose explanation ) establishes this connection between the land charge and demand. In the assignment of the mortgage it was valid until August 2008, the provisions of § 1157 of the Civil Code, according to which in the case of assignment of a mortgage law to a new creditor , the defense which was the guarantor basis of an existing between it and the previous creditor legal relationship against the mortgage, even the new creditor could be countered, provided that no purchase was made in good faith and without objection.

Risk Limitation Act

Through the Risk Limitation Act of August 2008, the security land charge has now taken on a legal form, because Section 1192 (1a) BGB, section 1193 (2) sentence 2 BGB mentions the “land charge to secure a claim”. Although the security land charge is still independent of the secured claim in terms of property law, Section 1192 (1a) sentence 1 BGB establishes a connection between the security land charge and the security contract under the law of obligations. According to Section 1192, Paragraph 1a, Clause 1, Clause 2 BGB, Section 1157, Clause 2 BGB is now excluded, which means that the security provider may object to any subsequent security buyer. The most important defense is the redemption defense, according to which the security provider (property owner) may oppose the (new) creditor with full or partial repayment of the claim, so that in the event of a security case the (new) creditor may not demand the entire share capital in the case of land debts that are not or not fully valued. According to the legal situation created by Section 1192 (1a) of the German Civil Code (BGB), the property owner can object to the new land charge creditor that he can only be claimed from the land charge with its valued part. Other defenses include the complete or partial extinction of the secured claim before assignment of the mortgage or the plea of lack of maturity of the claim. Acquisition in good faith without objection is excluded, even if the new creditor did not know that he had acquired a security land charge. The property owner is also entitled to these rights vis-à-vis any subsequent purchaser of the land charge.

However, the specialist literature considers the new regulation contained in Section 1192 (1a) BGB to be unsuccessful and in need of revision, whereby the legislature must keep an eye on the overall system of mortgages.

Liability Association

As part of the security land charge, the security buyer is liable for the property, its essential components ( Section 1120 BGB), the property accessories ( Section 1120 BGB), and according to Section 1123 BGB, the rent and lease claims (for rented or leased objects ); According to § § 1127 ff. BGB, insurance compensation , in particular building insurance ( § 1128 BGB) and other damage insurance ( § 1129 BGB), is also liable . This can mean that, in exceptional cases, movable objects (or animals ) can also be encumbered with a security mortgage.

termination

The also newly created regulation of § 1193 Paragraph 1 Clause 2 BGB sets a notice period of 6 months as a maturity requirement for the security land charge. The transitional provision of Art. 229, Section 18, Paragraph 2 of the EGBGB must be observed for the security land charge . The termination is only a condition of maturity if the land charge was acquired after August 19, 2008. The termination of old contracts does not require this.

Recognition under banking supervisory law

Land charges primarily used as collateral at banks before using as collateral object residential or commercial properties are eligible and the collateral value of real estate is a priority. According to Section 18a (4) of the KWG , credit institutions are obliged to carry out a particularly prescribed creditworthiness check for consumer property loan contracts , in which debt ratios such as the debt service coverage ratio must also be taken into account.

General

Since January 2014, credit collateral has been considered a credit risk mitigation technique for regulatory purposes . If credit collateral is recognized as a credit risk mitigation technique by the Capital Adequacy Regulation (CRR) applicable in all EU member states , it leads to a lower level of equity capital for banks than for unsecured loans . As a result, secured loans can be granted with a lower interest rate .

Securing land charges belong to the credit risk mitigation techniques “with security deposit” ( real securities ; Art. 4 Para. 1 No. 58 CRR). Art. 194 CRR establishes principles for the supervisory recognition of credit risk mitigation techniques, after which loan collateral in particular in all jurisdictions legally (English valid ) and enforceable (English enforceable must be) sufficiently liquid , over time a stable value and a credit event promptly recyclable need to be. The positive correlation between the collateral and the borrower's creditworthiness must not be very high (Art. 194 (4) CRR). In case of doubt, any legal risk must be excluded by means of a legal opinion .

Security land charge

Securing land charges are considered mortgages which, according to Art. 125 para. 1a CRR, are given a risk weight of 35% of the book value if they are used or rented as residential property by the owner , the mortgage lending value of the property does not depend significantly on the creditworthiness of the borrower and the risk of the Borrower does not depend significantly on the property (Art. 125 Para. 2a and 2b CRR). The SolvV , which has been in force since January 2014 , clarifies the requirements that a mortgage lending value must meet for the purposes of the Capital Adequacy Ordinance. These requirements are finally listed in Section 22 SolvV. After that, the mortgage lending value

  • according to § 16 para. 2 sentences 1 to 3 PfandBG in connection with the mortgage lending value determination ordinance or
  • have been determined in accordance with Section 7 ( 7 ) of the Building Societies Act, taking into account a provision approved by BaFin in accordance with Section 5 (2) No. 3 of the Building Societies Act or
  • relate to a property in another country of the European Economic Area and have been determined on the basis of strict legal or administrative provisions applicable in this country, which BaFin has recognized as being equivalent to the Mortgage Lending Value Determination Ordinance or
  • be a sustainably achievable value determined differently, which meets the requirements of Section 16 (2) sentences 1 to 3 PfandBG.

Section 21 (3) no. 1 KWG also refers to the PfandBG that is now in force.

The lending limit allowed under Art. 125 Para. 2d CRR 80% of the loan value or market value does not exceed. According to Art. 126 (1a) CRR, commercial real estate has a risk weight of 50% of the market value (or 60% of the mortgage lending value) with the same correlation requirements as for residential real estate. Repayment depend It must under Art. 126 para. 2b CRR on the ability of the borrower, the loan mainly from other financing sources than the object , special or project financing to repay to. In the event of default, both risk positions are assigned a risk weight of 100% (Art. 127 Paragraphs 3 and 4 CRR). For all loans exceeding the lending value, the risk weight for unsecured loans must be used as a basis in accordance with Article 124 (1) CRR. In addition, appropriate damage insurance (Art. 208 (5) CRR) is required for the property, an independent expert has to prepare a collateral assessment (Art. 229 (1) CRR) and an annual (commercial property) or every three years (residential property) monitoring the lender is required (Art. 208 CRR).

Security land charge and loan trading

The subject of loan trading is , among other things, non-performing loans secured by mortgages. When these loans are sold by one buyer of protection to another buyer of protection, the land charge must be transferred by way of assignment, so that the provisions of the Risk Limitation Act apply. After that, loan trading is still possible, but borrower protection has been improved.

A form-based consent to take over a loan contract within the framework of loan trading is ineffective according to Section 309 No. 10 BGB. The regulation concerns the transfer of the entire loan contract , i.e. the transfer of the contract . In the case of consumer loan contracts with mortgage security (mostly real estate financing , but also consumer loans ), according to Section 492 (1a) sentence 3 BGB, the contract declaration to be signed by the borrower must always contain a clearly structured reference that the lender assigns claims from the loan agreement without the consent of the borrower and may transfer the contractual relationship to a third party. If this is not done, the assignment or transfer is not ineffective , but the borrower receives a claim for damages against his bank under Section 280 BGB. According to Section 496 (2) sentence 1 BGB, the borrower must be informed immediately after the assignment to a new creditor and via the contact details of the new creditor ( Art. 246b Section 1 (1) No. 1, 3 and 4 EGBGB). If the new creditor pursues foreclosure on the security land charge , the borrower can defend himself with an enforcement action according to § 767 ZPO and an application to stop the execution according to § 769 ZPO.

International

In Switzerland , we know the mortgage bond, the mortgage bond and the validity - no longer possible since January 2012 . In Austria , the mortgage is the only lien that arises in accordance with Section 446 of the Austrian Civil Code through a contract and “incorporation” ( entry ) in the land register . In France , the Hypothèque rechargeable is a mortgage, but “refillable”, i.e. revaluable, which corresponds economically to the security mortgage. The English mortgage also fulfills the function of a land charge in economic terms, even if it is legally different from it.

Others

The security mortgage is not comparable - even if it is related literally .

literature

Web links

Individual evidence

  1. ^ Iwona Kolodziejczyk, The security land charge in German law and in the Polish draft law , 2010, p. 63.
  2. ↑ Kurt Schellhammer, Property Law according to Claim Basis , 2013, p. 298 RN 607.
  3. ↑ The value date is complete if the nominal amount of the land charge corresponds to the amount of the secured claim
  4. ↑ Alexander Neumann, § 1192 Abs. 1a BGB - a snap shot that urgently needs revision , in: ZJS 6/2010, p. 685.
  5. ↑ Stefan Leible , Hedge Funds and Private Equity - Curse or Blessing? , 2009, p. 72.
  6. ↑ Peter Bassenge , in: Otto Palandt , BGB Commentary , 2014, § 1192 Rn. 3.
  7. ↑ Alexander Neumann, § 1192 Abs. 1a BGB - a quick fix that urgently needs revision , in: ZJS 6/2010, p. 689.
  8. ↑ Klaus Tiedtke in JURA 1983, pp. 460, 472.
  9. ↑ Monika Hinteregger, Security Rights to Real Estate in Europe , 2009, p. 237 f.
  10. ^ Matthias Fervers, Hypothèque rechargeable and Grundschuld , 2013, p. 28.