Land Registry System in
Germany
by Harald Wilsch,
Rechtspfleger at the Local Court of Munich
ELRA Secretary General
Preface
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I) General conditions
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II) General principles of German Real Law
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III) Legality checks in practice
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IV) Legal effects of registration
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V) Liability
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VI) Introduction of E-Conveyancing in the Land Registry Procedure
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VII) Greetings from Bavaria: Hymn of Bavaria, first performed Dec. 1860
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I) General conditions
Jurisdiction over the subject: Local courts
Procedural competence: the Rechtspfleger
Access to the register, Art. 12 GBO
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II) General principles of German Real Law
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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
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III) Legality checks in practice
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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
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Checklist Formal principle of consensus,
Article 19 GBO
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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; compulsionof 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
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Requirement of approvals
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Checklist Subtantive principle of consensus,
Article 20 GBO
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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
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IV) Legal effects of registration
 The
constitutive effect of registration,
Article 873, Civil Code
 The
effect of fictive assumption,
Article 891, Civil Code
 The
good faith function/ bona fides effect,
Article 892, Civil Code
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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
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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
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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?
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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 (“HybridGrundakten”)
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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)
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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
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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
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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
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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
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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!
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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!
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End
Thank you for your attention!
Harald Wilsch
Rechtspfleger, Local Court of Munich, Bavaria
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