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Auflassung - Rechtsanwalt Düsseldorf

1. Term
Conveyance is the legally standardised special form of agreement under section 925 of the Civil Code. According to § 873 BGB, it is a prerequisite for the acquisition of ownership in addition to the transfer of ownership in the land register.

2. Acquisition of land
Acquisition of land is possible by legal transaction under § 837 BGB in conjunction with conveyance under § 925 BGB or by law under § 46 BGB. Accrual of the association's assets to the treasury; § 88 BGB, accrual of assets after expiry of the foundation; § 1416 BGB, the husband's assets and the wife's assets become joint assets of the spouses (joint property) through community of property; § 1922 BGB, universal succession after the death of a person, the succession, the assets (the inheritance) pass as a whole to one or more persons (heirs). Land may also be acquired by act of state, knockdown in a compulsory auction under section 90 ZVG, under the land consolidation plan (section 61 FlurbG), under the reallocation plan under section 72 BauGB, under the boundary regulation plan under section 83 BauGB, in the event of a change in the burden of road construction, e.g. under section 6 subsection 1 FstrG, in the event of allocation in expropriation proceedings, the acquisition of land by the municipality under section 28 subsection 3 sentence 3 BauGB. Finally, a plot of land may be acquired by book session under section 900 (1) sentence 2 of the Civil Code, by appropriation under section 927 (2) of the Civil Code in the bidding procedure and section 928 (1) of the Civil Code by relinquishment of ownership.

3. Form and content
The legal acquisition of a plot of land is carried out in accordance with the provisions of §§ 873 and 925 BGB. According to § 873 BGB, the transfer of ownership requires agreement between the transferor and the transferee and the registration of the change of ownership to the transferee in the land register. The agreement on the transfer of ownership according to § 873 BGB is structured in the special form of § 925 BGB as a conveyance. The following requirements must be met for the effectively declared conveyance, otherwise the conveyance is not effective.

a) Simultaneous presence of both contracting parties
A mandatory requirement for validity under § 925 BGB is the simultaneous presence of both contracting parties. However, the personal presence of the contracting parties is not required. One party to the contract may also be represented by a representative with or without power of attorney. In the case of representation with power of attorney, the power of attorney granted must be proved to the land registry in the form of notarial certification in accordance with § 29 GBO, as must the authorisation of a representative without power of attorney who has appeared without power of attorney.

b) Declaration by the competent authority

A further prerequisite for an effective conveyance under section 925 of the Civil Code is that the conveyance is declared before a competent authority. Any notary is competent to receive the conveyance, irrespective of the competence of other authorities. A declaration of conveyance before an incompetent authority is invalid. Any notary is competent in Germany, even outside his official district. Abroad, the consular officer is competent according to the KonsG, but not a foreign notary. According to § 925 BGB, the conveyance can also be declared in a court settlement or in a legally confirmed insolvency plan.

c) Without condition and time provision

A further prerequisite for a valid declaration of conveyance is that the conveyance is made without a condition and without a time provision. Otherwise it is invalid (section 925 (2) BGB). The conveyance must also be declared unconditionally from the underlying legal transaction if the underlying legal transaction itself contains a condition, a time provision or a rescission option. On the other hand, no ineffectiveness according to § 925 (2) BGB occurs in the case of a concurrent condemnation to conveyance or in the case of an agreement on the condition for the execution of the land register. On the contrary, such an agreement is almost constant practice because the transfer of ownership in the land register is to take place only after payment of the purchase price or its security. A legal condition is also harmless, for example, if the conveyance is declared by a non-entitled person or by a representative without power of attorney and approval is granted, likewise not if the guardianship court has to approve the conveyance.

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