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Land Registry System in Germany by Harald Wilsch, Rechtspfleger at the Local Court of Munich ELRA Secretary General.

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Presentation on theme: "Land Registry System in Germany by Harald Wilsch, Rechtspfleger at the Local Court of Munich ELRA Secretary General."— Presentation transcript:

1 Land Registry System in Germany by Harald Wilsch, Rechtspfleger at the Local Court of Munich ELRA Secretary General

2 Land Registry System in Germany2 Preface I) General conditions I) General conditions II) General principles of German Real Law II) General principles of German Real Law III) Legality checks in practice III) Legality checks in practice IV) Legal effects of registration IV) Legal effects of registration V) Liability V) Liability VI) Introduction of E-Conveyancing in the Land Registry Procedure VI) Introduction of E-Conveyancing in the Land Registry Procedure VII) Greetings from Bavaria: Hymn of Bavaria, first performed Dec VII) Greetings from Bavaria: Hymn of Bavaria, first performed Dec. 1860

3 Land Registry System in Germany3 I) General conditions Jurisdiction over the subject: Local courts Procedural competence: the Rechtspfleger Access to the register, Art. 12 GBO

4 Land Registry System in Germany4 II) General principles of German Real Law 1) The absoluteness of real rights 1) The absoluteness of real rights 2) The numerus clausus of real rights 2) The numerus clausus of real rights 3) The compulsion of types in regard to content 3) The compulsion of types in regard to content 4) The principle of clarity and definiteness 4) The principle of clarity and definiteness 5) The principle of the abstract nature of rights in rem 5) The principle of the abstract nature of rights in rem 6) The principle of legality 6) The principle of legality 7) The principle of public disclosure 7) The principle of public disclosure

5 Land Registry System in Germany5 III) Legality checks in practice The Land Registry´s obligation of legality checks within the scope of the Principle of Formal consensus, Article 19 GBO The Land Registry´s obligation of legality checks within the scope of the Principle of Formal consensus, Article 19 GBO The Land Registry´s obligation to check within the scope of the Principle of Substantive consensus, Article 20 GBO The Land Registry´s obligation to check within the scope of the Principle of Substantive consensus, Article 20 GBO Procedural instruments in the event of obstruction, Article 18 GBO Procedural instruments in the event of obstruction, Article 18 GBO Procedural instruments in the event of incorrect entries, Article 53 GBO Procedural instruments in the event of incorrect entries, Article 53 GBO

6 Land Registry System in Germany6 Checklist Formal principle of consensus, Article 19 GBO Application, Article 13 GBO Application, Article 13 GBO Permission, Article 19 GBO Permission, Article 19 GBO Authority for giving such a permission (no restraint of power) Authority for giving such a permission (no restraint of power) Representative authority in case of power of attorney Representative authority in case of power of attorney Content of the permission (numerus-clausus-principle; compulsion- of types-principle; and article 47 GBO) Content of the permission (numerus-clausus-principle; compulsion- of types-principle; and article 47 GBO) Requirement of further permissions from third parties Requirement of further permissions from third parties Description in accordance with Article 28 GBO Description in accordance with Article 28 GBO Tracto sucessivo = pre-registration, Article 39 GBO Tracto sucessivo = pre-registration, Article 39 GBO Notarial certification, Article 29 GBO Notarial certification, Article 29 GBO Requirement of approvals Requirement of approvals

7 Land Registry System in Germany7 Checklist Subtantive principle of consensus, Article 20 GBO Application, Article 13 GBO Application, Article 13 GBO Agreement of the relevant parties, Article 20 GBO Agreement of the relevant parties, Article 20 GBO Authority for making such an agreement (no restraint of power) Authority for making such an agreement (no restraint of power) Representative authority in case of power of attorney Representative authority in case of power of attorney Content of the agreement: two corresponding declarations Content of the agreement: two corresponding declarations Description in accordance with Article 28 GBO Description in accordance with Article 28 GBO Tracto sucessivo= pre-registration, Article 39 GBO Tracto sucessivo= pre-registration, Article 39 GBO Notarial recording, Article 29 GBO Notarial recording, Article 29 GBO Certification real estate acquisition taxes, Article 22 GrEStG Certification real estate acquisition taxes, Article 22 GrEStG Certification concerning preemption right of community, Art. 28 BauGB Certification concerning preemption right of community, Art. 28 BauGB

8 Land Registry System in Germany8 IV) Legal effects of registration The constitutive effect of registration, Article 873, Civil Code The constitutive effect of registration, Article 873, Civil Code The effect of fictive assumption, Article 891, Civil Code The effect of fictive assumption, Article 891, Civil Code The good faith function/ bona fides effect, Article 892, Civil Code The good faith function/ bona fides effect, Article 892, Civil Code

9 Land Registry System in Germany9 V) Liability The objection of office pursuant to Article 53, GBO, in regard to preventing acquisition in good faith The objection of office pursuant to Article 53, GBO, in regard to preventing acquisition in good faith Consequences of the acquisition of a real right in good faith, Article 892, Civil Code Consequences of the acquisition of a real right in good faith, Article 892, Civil Code Claim of damages against the Land Register, Article 839, Civil Code in conjunction with Article 34 German Federal Constitution Claim of damages against the Land Register, Article 839, Civil Code in conjunction with Article 34 German Federal Constitution

10 Land Registry System in Germany10 VI) Introduction of E-Conveyancing in the Land Registry Procedure Law amendment: ERVGBG, in force since October, 1st, 2009 Article 135 GBO: applications can be conveyed as electronic documents Due to the federal character of Germany: each individual state is authorised to meet the particular provisions through regulation

11 Land Registry System in Germany11 VI) Introduction of E-Conveyancing in the Land Registry Procedure Due to the federal character of Germany: each individual state is authorised to meet the particular provisions through regulation; here are some countries: - Baden-Württemberg: year Sachsen: year Hessen: pilot-project year Bavaria: year 2012/2013?

12 Land Registry System in Germany12 VI) Introduction of E-Conveyancing in the Land Registry Procedure Notaries have to send an electronic copy of the paper deed and certain data in structured form, in XML format (for instance: name and birth date of the parties to be registered) XML data record creates a registration proposal, which has to be checked comprehensively Also possible: to carry on the files in electronic form (=elektronische Grundakte), Article 135 Paragraph 2 GBO Mixed forms: so called hybrid-files (Hybrid- Grundakten)

13 Land Registry System in Germany13 VI) Introduction of E-Conveyancing in the Land Registry Procedure Receipt of electronic documents, Article 136 GBO: an electronic document is received at the Land Registry as soon as the facility meant for has recorded it (not: sending by notary etc.) This facility is a direct addressable facility as a separate Land Registry post office box (a special client software called EGVP, see

14 Land Registry System in Germany14 VI) Introduction of E-Conveyancing in the Land Registry Procedure Applications and documents can be conveyed at any time Exact point in time of the receipt is noted with the aid of an electronic time stamp The receipt has to be confirmed to the applicant immediately with the specification of the point in time of the receipt, Article 136 Paragraf 3 Clause 2 GBO This confirmation has to be provided with a corresponding electronic signature

15 Land Registry System in Germany15 VI) Introduction of E-Conveyancing in the Land Registry Procedure Form of electronic documents, Article 137 GBO Equivalence with regard to paper documents Paper and electronic documents range on the same legal level, no difference between both forms

16 Land Registry System in Germany16 VI) Introduction of E-Conveyancing in the Land Registry Procedure Inspection of files and data recall, Article 139 GBO: - inspection of the electronic file can also be taken from another Land Registry - Land Registry at which the inspection is requested decides about permission - ratio legis: spare citizens from the inconvenience of long distance

17 Land Registry System in Germany17 VI) Introduction of E-Conveyancing in the Land Registry Procedure Electronic decisions, Article 140 GBO: - if the file is managed electronically, the decisions (interim provision or refusal) can also be issued in electronic form - these decisions have to be provided with a qualified advanced signature

18 Land Registry System in Germany18 VII) Greetings from Bavaria: hymn of the Free State of Bavaria God be with you, land of the Bavarians, German soil, fatherland! Over your wide area rest his merciful hand! He shall protect your meadows, Shield the buildings of your towns And preserve you the colours Of his sky, white and blue!

19 Land Registry System in Germany19 VII) Greetings from Bavaria: hymn of the Free State of Bavaria God be with you, people of Bavaria, That we, to our father´s worth, Fixed in harmony and peace Build our own fortunes! That with bonds of German brotherhood Everyone may see us united And the old splendour Stands the test Our banner, white and blue!

20 Land Registry System in Germany20 End Thank you for your attention! Harald Wilsch Rechtspfleger, Local Court of Munich, Bavaria


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