Forced mortgage

The compulsory mortgage (also: Forced collateral mortgage ) is in real estate law a collateral mortgage , which by law or in the context of enforcement on the request of a creditor ex officio in the land register of the debtor is entered.

General

As the term suggests, the effected entry of this type of mortgage is not - as otherwise in mortgages usual - through voluntary approval of the property owner , but it is a state of coercion in the context of enforcement.

history

In the past, states also used this method to forcibly involve landowners in the aftermath of economic crises or wars . In Germany this was the case in 1923 and 1948. In practice, the compulsory mortgages acted like an additional tax for landowners. Since real estate remains stable in value with currency reforms , this measure sought to put a greater burden on the landowners who benefited from this.

Forced loans 1923

In 1923 there was hyperinflation in Germany , the cause of which was the reparation payments for the First World War. In November 1923, the currency reform ended this inflation with the introduction of the Rentenmark . In order to cover the capital requirements of the second central bank to be founded (" Deutsche Rentenbank "), the government encumbered land holdings in agriculture , industry and trade with forced mortgages amounting to 3.2 billion Rentenmarks.

Currency reform in Germany in 1948

In order to finance the state system in the course of the currency reform in 1948 , for all measures aimed at compensating for the Second World War and its economic consequences, including the currency disadvantages, from June 1952 all property held in private assets was granted a compulsory mortgage in favor of the Federal Republic with the Burden Equalization Act Germany burdened, which had to be paid off by the property owners in the following 30 years.

Legal issues

According to Section 866 (1) ZPO , foreclosure on a property or right equivalent to real property ( Section 870 ZPO) can take place in three ways, namely by foreclosure sale , compulsory administration or by entering a security mortgage for the claim . At the request of the obligee , the land registry registers the compulsory mortgage on the basis of an enforceable title ( Section 867 (1) ZPO) without the need for approval from the property owner. The provisionally enforceable judgment from the foreclosure proceedings results in the fiction of a license according to § 895 ZPO. For enforcement from the compulsory mortgage, this provisionally enforceable title is sufficient , in which the entry of the compulsory mortgage has been noted in accordance with Section 867 (1) ZPO.

The compulsory mortgage is created when it is entered ( Section 873 Paragraph 1 BGB , Section 44 GBO , Section 867 Paragraph 1 Sentence 2 ZPO), namely as a security mortgage according to Section 1184 BGB and always as a book mortgage ( Section 1185 Paragraph 1 BGB). It is referred to in the land register as a "security mortgage" or "forced mortgage" (Section 1184 (2) BGB). A security mortgage may only be entered for an amount of more than 750 euros (Section 866 (3) ZPO). Applications for the entry of a security mortgage , a ship mortgage or a registered lien on an aircraft are also possible for titled tax claims and are considered requests within the meaning of Section 38 GBO ( Section 322 AO ).

In contrast to the other enforcement measures, the compulsory mortgage is merely a means of security for the creditor. He does not receive any money just by registering the compulsory mortgage. The compulsory mortgage serves to secure the creditor's claim at the respective registered rank . The compulsory mortgage is equivalent to a contractually ordered security mortgage. Foreclosure auction and administration can be operated after registration in the rank of compulsory mortgage.

If an enforceable decision annuls the enforceable decision or its provisional enforceability or if enforcement is declared inadmissible or its suspension is ordered, the owner of the property acquires the compulsory mortgage ( Section 868 (1) ZPO). If the claim secured by the compulsory mortgage is paid, the property owner acquires the compulsory mortgage ( Section 1163 (1) BGB), which becomes the owner's mortgage ( Section 1177 BGB).

The judicial officer at the land registry decides on the registration of a compulsory mortgage . The land registry also acts as an enforcement body.

Like all security mortgages, the compulsory mortgage can only be registered as a book mortgage ( Section 1185, Paragraph 1 BGB); a mortgage letter is not permitted.