Term Paper on "Purchase of Real Estate by Judicial Sale in Germany"

Term Paper 49 pages (13364 words) Sources: 15

[EXCERPT] . . . .

Purchase of Real Estate by Judicial Sale in Germany

Real estate is the one most frequently mentioned areas of law that has the greatest divergence between jurisdictions today. For example, under Germany's Civil Code, certain aspects of real estate are governed by other laws, e.g. The proceedings regarding registration in the land register by the land register regulation, and regarding judicial foreclosure in the Act on Judicial Foreclosure. Real estate may also be owned by individuals as well as legal entities, including local authorities and foreign companies. The adjudication of legal disputes over property restitution depends on the precise location in united Germany where the dispute took place, when it first occurred, and the current state of the law as interpreted by German federal courts. The need for such judicial proceedings has skyrocketed in recent years following the reunification of the German states, but the flood of claims has not been as severe as many observers initially expected, but many analysts suggest that some important reforms are needed in order to allow German courts to more effectively adjudicate real estate sales and to provide consumers and investors with more confidence and a better understanding of their rights and responsibilities in these cases. To this end, this study provides a critical review of the relevant literature to determine what types of judicial sales of real estate are currently practiced in Germany, how these judicial sales are typically adjudicated and to identify current and future trends for the judicial sale of real estate in Germany. A summary of the research and salient findings are presented in the concluding chapter.

Chapter 1: Introduction

Statement of the Problem

Purpose of Study

Importance of Study

Scope of Study

Rationale of Study

Overview of Study

Chapter 2: Review of Related Literature

Chapter 3: Methodology

Description of the Study Approach

Data-gathering Method and Database of Study

Chapter 4: Data Analysis

Chapter 5: Summary and Conclusions

Table 1. Typical provisions for leases of German business premises today

Table 2. Recap of current German economic indicators: Germany vs. world

Table 3. European outstanding residential mortgage debt as percentage of GDP:

1990-1999

Table 4. European real estate capital flows (pounds billion) 2004 estimated

Table 5. Recap of differences in real estate dispositions through judicial sale in selected EU jurisdictions

Table 6. Concentric circles of the German Civil Code

List of Figures

Figure 1. Recap of current German economic indicators: Germany vs. world...

Figure 2. German outstanding residential mortgage debt as percentage of GDP:

1990-1999

Figure 3. European real estate capital flows (pounds billion) 2004 estimated...

Figure 4. Types of German financial institutions surveyed by Iblher and Lucious...

Figure 5. Types of German banks studied by Iblher and Lucious

Figure 6. Number of employees working in innovative financing

Figure 7. Overall use of innovative instrumentation in German real estate markets...

Figure 8. Innovative instruments offered to German real estate transaction customers and used in such transactions

Figure 9. Cooperation with external consultants

The Purchase of Real Estate by Judicial Sale in Germany Today

Chapter 1

Introduction

In his study, "Of all areas of the law, real estate is the one most often mentioned as having the greatest divergence between jurisdictions. Even within the European Union, where convergence of laws in some areas is a reality, a common land law regime is a mere pipe dream" (p. 14). In this regard, while the United States and the United Kingdom share a heritage of the common law, Germany is a civil law jurisdiction rather than a common law jurisdiction. Under this civil law concept, the law is interpreted by the courts, which is especially true for the administration of real estate transactions such as the termination of leases for good cause or neighborhood rights (Kock & Hosenfeld, 2007). Under the German Civil Code, certain aspects of real estate are governed by other laws, e.g. The proceedings regarding registration in the land register by the land register regulation, and regarding judicial foreclosure in the Act on Judicial Foreclosure. Real estate may be owned by individuals as well as legal entities, including local authorities and foreign companies (Kock & Hosenfeld, 2007). According to Cranston and Goode (1997), "When the German Civil Code (Burgerliches Gesetzbuch or ' BGB') came into force on 1 January 1900, it not only coincided with the beginning of a new century but also marked the end of the long process of the unification of the German state" (p. 2). In reality, though, it also marked the beginning of a new era in the adjudication of the sale of real estate in Germany, in a process that has created a convoluted but solid framework in which stakeholders can proceed to secure and protect their interests.

Statement of the Problem

Since 1900, civil law has basically derived from the Burgerliches Gesetzbuch, the civil code devised during the Second, Wilhelmine, Reich; however, over the course of a century, a number of additions and modifications have been made. According to Blacksell, Bohlander, and Born (1996), "Ironically, East Germany employed the same Burgerliches Gesetzbuch until 1976, when its own civil code was introduced, which better reflected the reality of civil relationships in a communist state. After reunification federal law - which, as far as civil matters were concerned, again meant the Burgerliches Gesetzbuch - was extended to cover all of the new German state, though with numerous transitional exceptions in the new Lander" (p. 198). Some exceptions have gradually been eliminated; however, the law itself, including the Law of Property, has continued to change through government-sponsored additions and the normal process of judicial rulings that have complicated issues even further (Blacksell et al., 1996).

The adjudication of legal disputes over property restitution depends on the precise location in united Germany where the dispute took place, when it first occurred, and the current state of the law as interpreted by German federal courts. According to Blacksell and his colleagues, "All of this amounts to a virtual quagmire for interpretation and to a potential source of endless litigation. For the most part, this potential has yet to manifest itself in property-restitution claims, but only because most of the more controversial and difficult cases have not reached the court" (Blacksell et al., 1996, p. 199).

The key to establishing a legitimate claim to land or property is having title recorded in the Land Registry. The register goes back to the Second Reich, in the early years of the twentieth century, but for various reasons records are often incomplete and inconclusive, especially in the new Lander. Many records were lost during World War II and its aftermath, and after its first few years in power the government of the GDR allowed the register to lapse. The East German state apparatus saw little reason to legitimize the bourgeois concept of private property by keeping the records current; based on the foregoing, the joint declaration by Kohl and Modrow in 1990 had at heart the creation of a hierarchy of Offices for the Settlement of Disputed Property Claims. Even in a somewhat simplified form, the process of submitting a claim is exceedingly intricate a basic distinction is made between residents of a property without any paper claim to the title and people who believe they have a legitimate claim on the basis of a formerly registered title. German residents may petition for title with the Land Registry provided they have received a certificate showing that the period allowed for registering a claim has elapsed and that there are no other outstanding claims from the Office for the Settlement of Disputed Property Claims; however, title claimants must also establish the legitimacy and relative merits of their claim compared to any other claims relating to the same piece of property, and the claim must be lodged within the time period allowed (Blacksell et la., 1996). These formal steps are absolutely required before an application for title be filed with the Land Registry. According to these authors, there is nothing in the formal claims process limits the right of a claimant to go to the courts to resolve a claim, although in real-world settings this has not been common, indicating a high level of acceptance of the formal German procedures involved in the administration of real estate sales (Blacksell et al., 1996).

In order to assess the geographical importance of the judicial process used for property restitution since German reunification, the authors provide an overview of the scale of the problem and the way in which it has evolved in recent years. According to Blacksell and his colleagues:

By the end of 1995 the several Offices for the Settlement of Disputed Property Claims across former East Germany had received a total of 1,228,598 separate claims (Bundesamt zur Regelung offener Vermogensfragen 1991-1996). A distinction exists, though, between the number of claims lodged and the actual number of individual items at issue: A single formal claim may include several properties or other elements. The number of items at issue - 2,463,077 - is more than twice the… READ MORE

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