Division auction

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The division auction or dispute auction is a special procedure of foreclosure auction regulated in Germany in the law on compulsory auction and compulsory administration (ZVG) .

purpose

The division auction is carried out to end a community on a property. Spouses who buy a piece of land together can be entered in the land register in fractions, usually as co-owners "at ½" each . They each have an ideal share of the property, e.g. B. half of each stone, each flower, etc.

Unless otherwise agreed between the parties involved ( Section 1010 BGB ), such a community will be dissolved through this special foreclosure auction. The indivisible property of real estate is converted into money as divisible property. However, the community continues with this money (proceeds). If the co-owners do not agree on a payment (for example according to their shares), the proceeds will be deposited .

Communities whose termination can prepare the division auction, among other things, are heirs , the civil law , the Community after fractions and possibly also the general partnership (OHG). In the case of a company under civil law, however, it should be noted that an individual partner cannot submit any applications unless he is authorized to manage the business individually. The fundamentally admissible application for the division auction of the property of a dissolved GbR is inadmissible if it is only made by a partner in his own name. This no longer applies since a decision by the BGH on May 16, 2013 (V ZB 198/12). This is more accurately described in the literature, according to which § 731 sentence 1 BGB is to be applied to the effect that a division auction is fundamentally excluded if the GbR is entered in the land register as the owner. There is then a lack of the “necessary” community within the meaning of Section 180 (1) ZVG. A creditor can attach the right to annulment of the community by order of the enforcement court. The obligee can therefore apply for the division auction instead of the co-owner.

For the implementation of the division auction, the provisions of the first two sections of the ZVG apply accordingly in accordance with Section 180 (1) ZVG, unless a different regulation is made in Sections 181 to 185 ZVG. These deviating regulations relate in particular to the further setting option according to § 180 Paragraphs 2 to 4 ZVG, the regulation that an enforceable title is not required (§ 181 ZVG) as well as regulations of the lowest bid and the provision of security .

Jurisdiction

The procedure is carried out at the local court as an enforcement court . The district court in whose district the property is located is generally responsible . The Rechtspfleger is functionally responsible.

Procedure

The division auction must be applied for by someone involved in the community. The judicial officer checks whether the application is correct. The application must include the exact designation of the property and the addresses of the other co-owners. The applicant and the other members of the community must usually be entered in the land register. In addition, evidence must be provided that the substantive legal requirements for the dissolution of the community are met.

The proceedings can be suspended for a period of up to six months at the request of one of the parties if this appears appropriate after weighing up the conflicting interests. If, in addition to the applicant, only his (former) spouse belongs to the community, the proceedings can also be suspended for up to 5 years in the interests of the joint child.

The judicial auction procedure corresponds in principle to the real estate auction procedure. There are deviations in particular when determining the lowest bid and the possibility of agreeing auction conditions that deviate from the law.

If the contract is awarded, the Rechtspfleger determines a distribution date. The buyer has to pay his bid on this date.

literature

  • Bothe: The division auction . zerb verlag GmbH, Bonn 2016; expanded and updated 2nd edition ibid 2020.

Web links

Wiktionary: division auction  - explanations of meanings, word origins, synonyms, translations

Individual evidence

  1. ↑ See Stumpe, in: Entire Law of Foreclosure (HK-ZV), 2nd edition 2013, § 180 ZVG Rn 12.
  2. ↑ See Stumpe, in: Gesamtes Recht der Zwangsvollstreckung (HK-ZV), 2nd edition 2013, § 181 ZVG, Rn 12 with reference to AG Dortmund, September 15, 2011, 273 K 033/11.
  3. ↑ BGH, May 16, 2013 - V ZB 198/12 accessed on May 24, 2015.
  4. ↑ Hintzen, Engels, Rellermeyer: Law on Foreclosure Auction and Forced Administration , 14th edition 2012, § 180 ZVG, Rn 27.