Land Registry System in Germany

1. Land Registry System in Germanyby Harald Wilsch, Rechtspfleger at the Local Court of MunichELRA Secretary General

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

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

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

5. 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 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 incorrect entries, Article 53 GBO Land Registry System in Germany

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

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

8. IV) Legal effects of registration • The constitutive effect of registration, Article 873, Civil Code • The effect of fictiveassumption, Article 891, Civil Code • The good faith function/ bonafideseffect, Article 892, Civil Code Land Registry System in Germany

9. V) Liability • 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 • Claim of damages against the Land Register, Article 839, Civil Code in conjunction with Article 34 German Federal Constitution Land Registry System in Germany

10. 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 Land Registry System in Germany

11. 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 2011 - Sachsen: year 2011 - Hessen: pilot-project year 2011 - Bavaria: year 2012/2013? Land Registry System in Germany

12. 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”) Land Registry System in Germany

13. 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 www.egvp.de) Land Registry System in Germany

14. 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 Land Registry System in Germany

15. 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 Land Registry System in Germany

16. 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 Land Registry System in Germany

17. 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 Land Registry System in Germany

18. 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! Land Registry System in Germany

19. 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! Land Registry System in Germany

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