Certificate of harmlessness

The certificate of harmlessness is an official certificate for the simplified enforcement of a change in the law on a property .

The property law requires regularly granting a change of law or by the beneficiaries. The main purpose of the certificate of harmlessness is to replace this authorization for an intended change in the law. For this purpose, it is officially stated that this change in the law will not have any negative effects on those entitled, i.e. it will be harmless.

Legal bases

Property law is the task of the federal legislature and is therefore regulated in the civil code. However, with the introductory act to the civil code, Article 120 EGBGB opened up the possibility of regulation to the federal states . The legal basis for the issuing of certificates of harmlessness therefore form the corresponding statutory provisions of the federal states. With the exception of Mecklenburg-Western Pomerania, all federal states have regulated the issuing of certificates of harmlessness by state law, regularly either as individual laws, as part of implementing laws for the BGB (AGBGB) or as part of other laws (mostly in laws on public surveying and geographic information).

In the state of Berlin, the right for certificates of harmlessness refers to three laws of March 3, 1850, June 27, 1860 and July 15, 1890, which were transferred to Berlin state law. According to these laws, certificates of harmlessness can only be issued to regulate mortgages and real loads . The tasks assigned to the " dispute authorities " at that time will be the responsibility of the land surveying offices of the Berlin districts in 2011.

Case distinctions

There are four cases:

the unencumbered transfer of a part of the property if this part of the property is sold,
the distribution of a real burden to the individual parts of the property if a real estate encumbered with a real burden is sold,
the cancellation of a right to a piece of property that belongs to the owner of another piece of property,
the exemption from the right of a third party to the compensation claim of the building insurance to which the owner of a property is entitled in the event of an insured event.

In individual federal states, not all of these cases can be resolved with the certificate of harmlessness. Some federal states have no legal basis for issuing certificates of harmlessness.

Legal starting situation

Substantive law

According to Section 875 (1) of the German Civil Code (BGB), the authorization of the entitled persons is required for the cancellation of rights to land. In the case of property division, this substantive authorization of the entitled persons can be replaced by a certificate of harmlessness according to Article 120 paragraph 1 of the Introductory Act of the BGB (EGBGB), provided that corresponding statutory provisions exist in the federal states.

According to Section 876 (2) BGB, the authorization of the persons entitled to the encumbrance is required for the cancellation of encumbered rights to land that exist in favor of other land. According to Art. 120 Paragraph 2 EGBGB, this substantive approval of the person entitled to the burden can be replaced by a certificate of harmlessness, provided that there are corresponding statutory provisions in the federal states.

Formal law

In order to be able to enforce the aforementioned substantive approval of the entitled persons in the land register, their formal approval according to § 19 of the land register regulations is also required. According to § 142 Paragraph 2 Clause 1 GBO i. V. m. Article 1, Paragraph 2 of the EGBGB , Article 120 of the EGBGB, also applies accordingly to the provisions of the GBO, so that the formal approval of the beneficiaries can also be replaced by a certificate of harmlessness ( Section 143, Paragraph 1, Clause 1 of the GBO analogous to land register law).

Competent authority

In the federal states, the task of issuing certificates of harmlessness is carried out by the authorities responsible for keeping the real estate cadastre .

literature

Bengel, Manfred; Simmerding, Franz: land register, property, border , Luchterhand, Berlin, (5th edition) 2000, pp. 357–358, ISBN 3-472-03586-2 .
Palandt, Otto et al .: Civil Code, Commentary , Beck Juristischer Verlag, (65th edition) 2005, p. 2653, ISBN 3-406-56591-3 .