Right of first refusal waiver
The right of first refusal declaration is an administrative act in building law with which a municipality certifies that it will waive its statutory right of first refusal when purchasing a property .
General
The term “waiver of the right of pre-emption” is not used uniformly, and there is often talk of negative clearance . The municipal right of first refusal extends to undeveloped or developed land , not covered by the statutory right of first refusal are condominiums and heritable building rights . The Federal Court of Justice (BGH) defined the negative clearance in connection with the statutory right of first refusal as “a decision made by the competent authority through an administrative act that a legal transaction notified to it does not require approval”.
Legal issues
According to Section 24 of the Building Code (BauGB) , in certain cases there is a statutory right of first refusal in favor of the municipality in order to secure its land-use planning . A distinction is made between the so-called “general” ( § 24 BauGB) and the “special” ( § 25 BauGB) right of first refusal. In order to conclude a property purchase agreement , a declaration from the municipality about the existence and exercise of the right of first refusal (or waiver thereof) is required. If the municipality does not exercise the right of first refusal, it will submit a so-called right of first refusal declaration (negative certificate), which the notary responsible for the registration applies to the municipality and which is usually subject to a fee for the purchaser.
This right can only be exercised if the purpose associated with the acquisition of the property serves the common good . In this context, the negative clearance is a certificate stating that the municipality has waived its statutory right of first refusal. According to Section 28, Paragraph 1, Clause 2 of the BauGB, this negative certificate must be submitted to the land registry before a change of ownership can be entered in the land register. The land registry officer may also only divide a property into residential property and joint property in accordance with the land registry if a permit has been presented to him; the authorization decision is equated according to § 22 para. 7 sentence 2 BauGB in conjunction with § 23 , para. 2 BauGB a certificate from the building authority that the license according to § 22 para. 6 sentence 2. V. m. Section 19 (3) sentence 3 BauGB is deemed to have been granted.
Land registry offices are only allowed to enter land purchase contracts in the land register if the negative clearance is available ( Section 2 (2 ) GVO ). The general right of first refusal of the municipality itself is not entered in the land register, but has to be exercised within two months as soon as the municipality becomes aware of it by means of an administrative act ( Section 28 (2) BauGB).
According to Section 24 (2) BauGB, the municipality does not have the right of first refusal when purchasing rights under the Condominium Act (WEG) ( condominium and partial ownership ) and heritable building rights , so that a negative certificate from the land registry cannot be required.
Local law
A negative clearance in municipal law , i.e. a decision made by the responsible (supervisory) authority through an administrative act that a legal transaction communicated to it does not require approval, can be equated with approval if the legal reservation of approval serves exclusively to protect public and not private interests.
Individual evidence
- ↑ Lena Dannenberg-Mletzko: Notarial Studies: Safe in the exam, successful in practice. 2002, p. 126.
- ^ BGH, judgment of September 22, 2009, Az .: XI ZR 286/08 = NJW 2010, 144
- ↑ Christian Armbrüster, Diether Huhn, Nicola Preuss, Thomas Renner, Hans-Joachim von Schuckmann: Notarization Act and Service Regulations for Notaries: Comment. 2008, p. 374.
- ↑ BGHZ 73, 12
- ^ BGH, judgment of April 3, 1985, Az .: I ZR 29/83 = GRUR 1986, 79
