Tense principle
In the land register law , the tense principle decides on the ranking of several rights entered in the same land register. In addition to the locus principle, it finally determines the legal ranking, which is important when auctioning the property .
application
German property law is governed by the priority principle . In Section 879, Paragraph 1, Clause 2 of the German Civil Code , it is accordingly determined that the Tempus principle is to be applied to several rights distributed across both sections of the land register (e.g. several land charges in Section III and several encumbrances in Section II). The mere optical order, as it basically applies to the locus principle, cannot be used. With the tense principle, the date of entry is of decisive importance (the time of entry, Latin tempus ). Rights with the same entry date therefore have the same rank, unless a right is given priority by a ranking note ( Section 45 (2 ) GBO ).
impact
If the right is entered in II / 1 on April 17th and the right in III / 1 on April 16 of the same year, III / 1 has priority over II / 1. Equal status exists if right II / 1 was entered together with right III / 1 on April 17th of the same year and there is no ranking. If, on the other hand, rights II / 1 and III / 1 were entered on April 17th of the same year and a priority note grants right III / 1 priority over II / 1, there is a hierarchy between the two rights. In this respect, § 45 GBO even has a substantive legal character. The ranking note to be entered ex officio is regularly based on a notarial ranking, which in turn comes about by those involved in the land register.
Foreclosure
The tense principle is applied if at least one right is registered in both land register sections at the time of the foreclosure sale . 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.
