Real-Estate Property Law in Germany

Christian R. Wolf

I. Real-Estate Property

A. The Concept of Real-Estate Property in German Law

The concept of real-estate property is not legally defined in German law.From the statutes concerning real-estate property, however, it can be determined that real estate in the legal sense is a spatially limited portion of the face of the earth which is recorded in the land register. It follows that every piece of real estate in Germany is recorded on a page of the land register. The land registers are maintained by the local courts. Several pieces of real estate belonging to the same owner can be contained on a single page (for more details concerning the land register see section IV below).

In addition to the land register, a cadastral map illustrating the land-share divisions ('Liegenschaftskataster') is maintained. The entire surface of the earth within the state territory is surveyed and divided into local sub-districts, units and lots, which are recorded in the cadastral map. The land register and the cadastral map of land shares must be kept in such a way that they always match perfectly.This is ensured through the notification of the land registry of any changes in the status quo or in the definition of the cadastral units by the land-survey office ('Katasteramt'). The cadastral map of land shares thus contains detailed information about the actual proportions of a piece of property and the land register contains the details of its legal circumstances.

B. Principle of the Oneness of Real-Estate Property and Any Buildings Located Thereupon

Under German law, any buildings firmly attached to the ground and soil upon which they stand are considered to be integral parts of the real-estate property. The ownership of the buildings always rightfuIly belongs to the owner of the real-estate property and cannot be separated from it.The sale of real-estate property thus always includes the building located on it; it is not possible to sell the building without the land.

The legal situation in the former GDR was fundamentally different. There it was both possible and widely common to procure ownership of a building only,whereas the property on which it was located was simply leased. This regulation was retained in the course of the reunification of the German states: in the new federal states of Thuringia, Saxony, Saxony-Anhalt, Brandenburg, Mecklenburg-Pomerania and the eastern portion of the city-state of Berlin there is still today the concept of independent ownership of buildings. This regulation, however, is limited to property previously divided in such a manner; it is most definitely not the rule of thumb in the post-reunification, reconstruction efforts. In the already existent cases, the land and the building located on it are each registered on separate pages in the land register.

II.Real-Estate-Similar Rights

A. Condominiums and Part Ownerships

In addition to total ownership of real-estate property, there exists condominiums and part ownerships of property. In the latter cases the owner has a fixed partial ownership share in a jointly owned piece of real-estate property in addition to sole ownership of an apartment located on the property or apart of a building that is separate and complete in itself and not used for residential purposes.

Particularly large apartment buildings, some of which have several hundred residential units, are erected in the form of condominiums. The advantage of condominiums is that they can be sold and mortgaged, together with a percentage share of the jointly held property.

Condominiums are special forms of authentic ownership of pieces of real-estate property and in many cases are treated just the same way as regular real-estate. Every condominium, for example, has its own page in the land register.

B. Inheritable Building Right

A further real-estate-similar right is the heritable building right('Erbbaurecht'). This is a transferable and heritable right to erect a building on or under the ground surface of a piece of property. There is a special land register for such rights. This, in addition to the independent ownership of a building (without the ownership of the property it is built on) in the new federal states, is the second exception to the rule that the ownership of a building automatically belongs to the owner of the real estate. Here the building is an integral part of the heritable building right, which entitles its bearer to the ownership of the erected building.This right is in many ways comparable to a long-term lease and requires its bearer to pay an annual leasing fee. It continues to endure insofar as it can be independently charged with mortgages, liens and other real-estate encumbrances.

The heritable building right offers both the property owner and the entitled party advantages; it enables the owner to achieve ongoing yields from the property without having to sell it. The bearer of the heritable building right has the right the possibility of erecting a building without having to pay a high purchase price for the land. Heritable building rights are thus often issued by churches or communities to promote social welfare housing projects.

Heritable building rights are generally granted for a duration of time ranging from somewhere between thirty and ninety nine years. After the elapse of that fixed period, the right expires with the result that the owner of the land automatically becomes the owner of the building and must provide adequate compensation to the former bearer of the heritable building right. The land owner can avoid this compensation obligation by offering the bearer of the heritable building right the possibility of extending his title for a further period of time that

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Real-Estate Property Law in Germany

Christian R. Wolf

I. Real-Estate Property

A. The Concept of Real-Estate Property in German Law

The concept of real-estate property is not legally defined in German law.From the statutes concerning real-estate property, however, it can be determined that real estate in the legal sense is a spatially limited portion of the face of the earth which is recorded in the land register. It follows that every piece of real estate in Germany is recorded on a page of the land register. The land registers are maintained by the local courts. Several pieces of real estate belonging to the same owner can be contained on a single page (for more details concerning the land register see section IV below).

In addition to the land register, a cadastral map illustrating the land-share divisions ('Liegenschaftskataster') is maintained. The entire surface of the earth within the state territory is surveyed and divided into local sub-districts, units and lots, which are recorded in the cadastral map. The land register and the cadastral map of land shares must be kept in such a way that they always match perfectly.This is ensured through the notification of the land registry of any changes in the status quo or in the definition of the cadastral units by the land-survey office ('Katasteramt'). The cadastral map of land shares thus contains detailed information about the actual proportions of a piece of property and the land register contains the details of its legal circumstances.

B. Principle of the Oneness of Real-Estate Property and Any Buildings Located Thereupon

Under German law, any buildings firmly attached to the ground and soil upon which they stand are considered to be integral parts of the real-estate property. The ownership of the buildings always rightfuIly belongs to the owner of the real-estate property and cannot be separated from it.The sale of real-estate property thus always includes the building located on it; it is not possible to sell the building without the land.

The legal situation in the former GDR was fundamentally different. There it was both possible and widely common to procure ownership of a building only,whereas the property on which it was located was simply leased. This regulation was retained in the course of the reunification of the German states: in the new federal states of Thuringia, Saxony, Saxony-Anhalt, Brandenburg, Mecklenburg-Pomerania and the eastern portion of the city-state of Berlin there is still today the concept of independent ownership of buildings. This regulation, however, is limited to property previously divided in such a manner; it is most definitely not the rule of thumb in the post-reunification, reconstruction efforts. In the already existent cases, the land and the building located on it are each registered on separate pages in the land register.

II.Real-Estate-Similar Rights

A. Condominiums and Part Ownerships

In addition to total ownership of real-estate property, there exists condominiums and part ownerships of property. In the latter cases the owner has a fixed partial ownership share in a jointly owned piece of real-estate property in addition to sole ownership of an apartment located on the property or apart of a building that is separate and complete in itself and not used for residential purposes.

Particularly large apartment buildings, some of which have several hundred residential units, are erected in the form of condominiums. The advantage of condominiums is that they can be sold and mortgaged, together with a percentage share of the jointly held property.

Condominiums are special forms of authentic ownership of pieces of real-estate property and in many cases are treated just the same way as regular real-estate. Every condominium, for example, has its own page in the land register.

B. Inheritable Building Right

A further real-estate-similar right is the heritable building right('Erbbaurecht'). This is a transferable and heritable right to erect a building on or under the ground surface of a piece of property. There is a special land register for such rights. This, in addition to the independent ownership of a building (without the ownership of the property it is built on) in the new federal states, is the second exception to the rule that the ownership of a building automatically belongs to the owner of the real estate. Here the building is an integral part of the heritable building right, which entitles its bearer to the ownership of the erected building.This right is in many ways comparable to a long-term lease and requires its bearer to pay an annual leasing fee. It continues to endure insofar as it can be independently charged with mortgages, liens and other real-estate encumbrances.

The heritable building right offers both the property owner and the entitled party advantages; it enables the owner to achieve ongoing yields from the property without having to sell it. The bearer of the heritable building right has the right the possibility of erecting a building without having to pay a high purchase price for the land. Heritable building rights are thus often issued by churches or communities to promote social welfare housing projects.

Heritable building rights are generally granted for a duration of time ranging from somewhere between thirty and ninety nine years. After the elapse of that fixed period, the right expires with the result that the owner of the land automatically becomes the owner of the building and must provide adequate compensation to the former bearer of the heritable building right. The land owner can avoid this compensation obligation by offering the bearer of the heritable building right the possibility of extending his title for a further period of time that

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