Pursuant to § 29 GBO, the proof of the inaccuracy of the land register for a land register correction claim pursuant to § 22 GBO must be provided by public or publicly certified documents. The land register can also become inaccurate when the registered right was granted subject to a condition and has extinguished as a result of the occurrence of the condition. If a correction consent (§ 19 GBO) is not available, only proof of inaccuracy (§ 29 GBO) comes into consideration. High requirements are to be placed on this proof, as the OLG Munich once again confirmed in its decision. No official investigation takes place and all possibilities that could argue against the accuracy of the existing entry must be comprehensively eliminated by public or publicly certified documents.
Commentary:
Such public or publicly certified documents are, however, not available in most cases. In the case decided by the OLG Munich involving a resolutory conditional right of way on foot and by vehicle, the property owner also failed to prove by public documents that the dominant property had in the meantime its own access via a public road, even though this was actually the case.
This decision is also of relevance for the tenant easements frequently encountered in tenancy law:
There too, proof of the occurrence of a resolutory condition (e.g. payment default, termination of the tenancy) provided for in accordance with the model of the Association of German Pfandbrief Banks would in most cases hardly be possible by means of public documents. In connection with tenant easements, it is therefore advisable from the landlord’s perspective to already obligate the tenant at the time of granting the easement to deposit a cancellation consent in trust, in order to avoid the proof of the occurrence of a resolutory condition that would otherwise not be achievable by public or publicly certified documents at a later stage. Proof of payment default, the termination or cancellation of the lease agreement or the occurrence of any other resolutory condition will hardly be possible by public documents. The cooperation of the tenant is therefore absolutely necessary and should be anticipated through the deposit of the cancellation consent. This is moreover increasingly being required by lending banks as land charge creditors and is therefore already advisable from a financing perspective.
Author: Anneke Focken – af@kfr.law
Reference: OLG Munich, Decision of 07.10.2016 – 34 Wx 256/16

Decision of the OVG Hamburg: Declaratory action admissible

The so-called ipsa lege principle expressed in § 6 DSchG is constitutional. An action directed at a declaration that a specific structure is not a listed monument within the meaning of § 4 para. 2 sentence 1 DSchG can be specified to certain monument protection categories within the meaning of § 4 para. 2 sentence 1 DSchG.
The registration proviso expressed in § 6 para. 1 sentence 4 DSchG relates only to the protective obligations of those entitled to dispose pursuant to § 7 DSchG.
The approval proviso under § 9 para. 1 DSchG, by contrast, applies regardless of the registration of the monument in the monuments list.
The listed building status of a structure follows directly from the law since the introduction of the ipsa lege principle in Hamburg monument protection law with effect from 1 May 2013.
If a structure fulfills the statutory requirements of a listed monument, it is automatically subject to monument protection. Since then, it may be questionable for owners of older buildings in particular, with regard to the approval proviso in § 9 DSchG for structural alterations, which applies regardless of the registration of a monument in the monuments list, whether their building is also subject to monument protection.

Demarcation from other decisions

The OVG Hamburg has – deviating from the OVG Berlin (Judgment of 21 April 2016 – OVG 2 B 24.12) – decided that to clarify this question, an action directed at a declaration that a specific structure is not a listed monument is admissible.
The action can moreover extend to all monument protection categories – i.e. to the preservation of a monument

By Ines Hartwich
Reference: Hamburg Higher Administrative Court, 3rd Senate, Judgment of 23 June 2016 – 3 Bf 100/14, published in: NordÖR 2016, 501

Background: No statutory assumption of a right of purchase

Pursuant to § 566 para. 1 BGB (for commercial lease agreements in conjunction with § 578 BGB), an acquirer enters into the rights and obligations arising from the tenancy in place of the previous landlord.
However, according to the BGH’s case law, § 566 para. 1 BGB only covers those rights and obligations that are to be classified as tenancy law in nature or that are in direct connection with the lease agreement. The acquirer therefore does not assume rights and obligations that lie outside the tenancy, even if they are regulated as an additional agreement in the lease agreement.

Decision of the BGH: Narrow interpretation of § 566 BGB

With this decision, the BGH continues its case law that § 566 BGB, as an exception to the law of obligations principle according to which rights and obligations only arise between the persons involved in the obligatory relationship, is to be interpreted narrowly.

Reasoning of the court

With the transfer of ownership, a new tenancy arises between the acquirer and the tenant with the same content as existed with the transferor; however, not necessarily all provisions are to be covered by this.
Whether a provision is covered by § 566 BGB is determined – contrary to some views in legal literature – solely by the objectively determinable substantive content of the agreement.

Significance for practice

From the tenant’s perspective, care should therefore be taken within the framework of the lease agreement provisions to impose an obligation on the landlord to pass on such provisions in the property purchase agreement to the respective acquirer.
The landlord must then ensure when selling that such provisions are passed on.
Reference: BGH, Judgment of 12.10.2016 – XII ZR 9/15, published in: NZM 2017, 35

The subject matter of a deemed building permit pursuant to § 61 para. 3 HBauO is only the construction project that was submitted for approval at the expiry of the statutory processing deadline on the basis of the complete documents required pursuant to § 70 para. 2 sentence 2 HBauO. Subsequent amendments to the building documents cannot alter the subject matter of the deemed building permit.

Commentary by Ines Hartwich 

Before applying for confirmation of the deemed approval, care must be taken to ensure that the submitted building documents actually correspond to the intended construction project. This is because the subject matter of a deemed building permit is only the construction project that was submitted for approval at the expiry of the processing deadline on the basis of the complete documents required pursuant to § 71 para. 2 HBauO. Subsequent amendments that are only submitted after the deemed approval has taken effect cannot alter the deemed building permit, since otherwise, in the absence of a formal notice, the subject matter of the approved construction project cannot be determined.

In the case decided by the OVG Hamburg, the project was objectively not approvable due to fire protection deficiencies, so that the deemed building permit was unlawful, even though the building inspection department and the applicant had agreed that correspondingly corrected documents were to be submitted subsequently. The OVG Hamburg declared the deemed building permit unlawful for the reasons stated. An amendment to the construction project would only have been possible within the framework of an expressly applied for amendment permit.

Reference: OVG Hamburg, Decision of 25.7.2016 – 2 Bs 95/16, published in: NordÖR 2016, 474

The breach of the obligation to offer an alternative apartment that became available during the notice period in the case of a termination for personal use pursuant to § 573 para. 2 no. 2 BGB does not result in the termination being an abuse of rights and becoming subsequently invalid.

Decision of the BGH: No subsequent invalidity of the termination

In its judgment, the BGH confirms that a partially legally capable (external) partnership under civil law (GbR) can, by analogous application of § 573 para. 2 no. 2 BGB, base a termination on the personal use requirement of a relative of one of its partners. Furthermore, the BGH confirms that the landlord is obliged, within the framework of their duty of consideration, to offer the terminated tenant an alternative apartment in the same building or residential complex that became available during the notice period.

However, a breach of this obligation shall no longer lead to subsequent abuse of rights and invalidity of the termination, but shall only give rise to a monetary damages claim by the tenant.

New legal consequence: Damages instead of invalidity

Prior to the recognition of the partial legal capacity of the (external) GbR, it was recognized that the partners as landlords can invoke the personal use requirement of their relatives pursuant to § 573 para. 2 no. 2 BGB.

The BGH had also continued to proceed on this basis; however, the BGH treated the partially legally capable (external) GbR, co-ownership communities and communities of heirs equally primarily because it often depended on chance whether a partially legally capable (external) GbR or merely a co-ownership community was established.

Company law context: Partial legal capacity of the GbR

This reasoning was frequently criticized. The BGH continues to uphold the right to terminate for personal use of the partially legally capable (external) GbR, now however with different reasoning: According to the BGH, the recognition – for company law reasons – of the partial legal capacity of the (external) GbR was not intended to be accompanied by a curtailment of the termination options of a plurality of landlords; moreover, the differences and size of the different pluralities of landlords are irrelevant for the applicability of § 573 para. 2 no. 2 BGB according to its normative purpose.

Of greater relevance, however, is the fact that the BGH no longer adheres with this decision to its previous case law, according to which

• the breach of the obligation to offer residential space that had become available in the same residential complex led to the invalidity of the termination for personal use.
• The BGH correctly proceeds on the basis that this now only leads to a monetary damages obligation.
• A prerequisite for the obligation to offer is ultimately that a justified termination for personal use was first declared, as only this triggers the ancillary obligation to offer the terminated tenant alternative accommodation.
• The breach of the ancillary obligation cannot, however, result in the initially justified termination for personal use becoming invalid. The legally objectionable conduct ultimately lies in the breach of the ancillary obligation, but not already in the declaration of the termination itself, which proceeds from a legitimate interest.

Reference: BGH, Judgment of 14.12.2016 – VIII ZR 232/15 (published in: NZM 2017, 111)

Background: Land register correction and evidential obligations

Pursuant to § 29 GBO, the proof of the inaccuracy of the land register for a land register correction claim pursuant to § 22 GBO must be provided by public or publicly certified documents.

The land register can also become inaccurate when the registered right was granted subject to a condition and has extinguished as a result of the occurrence of the condition.

If a correction consent (§ 19 GBO) is not available, only proof of inaccuracy (§ 29 GBO) comes into consideration. High requirements are to be placed on this proof, as the OLG Munich once again confirmed in its decision. No official investigation takes place and all possibilities that could argue against the accuracy of the existing entry must be comprehensively eliminated by public or publicly certified documents.

Decision of the OLG Munich: Strict requirements for proof

Such public or publicly certified documents are, however, not available in most cases.

Practical case: Resolutory conditional right of way on foot and by vehicle

In the case decided by the OLG Munich involving a resolutory conditional right of way on foot and by vehicle, the property owner also failed to prove by public documents that the dominant property had in the meantime its own access via a public road, even though this was actually the case.

Significance for tenant easements

This decision is also of relevance for the tenant easements frequently encountered in tenancy law.

There too, proof of the occurrence of a resolutory condition (e.g. payment default, termination of the tenancy) provided for in accordance with the model of the Association of German Pfandbrief Banks would in most cases hardly be possible by means of public documents. In connection with tenant easements, it is therefore advisable from the landlord’s perspective to already obligate the tenant at the time of granting the easement to deposit a cancellation consent in trust, in order to avoid the proof of the occurrence of a resolutory condition that would otherwise not be achievable by public or publicly certified documents at a later stage.

Proof of payment default, the termination or cancellation of the lease agreement or the occurrence of any other resolutory condition will hardly be possible by public documents.

Recommendation for landlords

The cooperation of the tenant is therefore absolutely necessary and should be anticipated through the deposit of the cancellation consent. This is moreover increasingly being required by lending banks as land charge creditors and is therefore already advisable from a financing perspective.

Reference: OLG Munich, Decision of 07.10.2016 – 34 Wx 256/16

The BGH has – following the first instance judgment of the OLG Bremen – ruled that the agreement required pursuant to § 873 BGB for the establishment of a proprietary pre-emption right does not need to be notarially certified. § 311b para. 1 sentence 1 BGB (§ 313 sentence 1 BGB (old version)) does not apply to the proprietary agreement but only to the underlying obligatory transaction.

Change in case law: Departure from previous BGH position

With this decision, the BGH has departed from its previous position as expressed in a judgment of 7 November 1990 – XII ZR 11/89, which had led to the question of the formal requirement for the establishment of a proprietary pre-emption right being answered inconsistently in legal literature and case law and giving rise to uncertainties. Clarity should now ensue.

New reasoning of the BGH

In its reasoning, the BGH states that a special form is only to be observed where the law expressly prescribes this. However, the law contains no such provision for § 873 BGB. Only from a land register law perspective must the registration consent be evidenced by public or publicly certified documents.

Systematic classification and reasoning

• § 311b para. 1 sentence 1 BGB applies, according to its wording and systematic position, only to the law of obligations obligatory transaction; an analogous application would not be possible due to the absence of an unintended regulatory gap, as the performance transaction is subject to different rules due to the principle of abstraction existing in German law.
• Furthermore, even in the case of conveyance (§ 925 BGB), which is directed at the transfer of ownership of a property, notarial certification is not required; accordingly, this can a fortiori not be the case for an agreement within the meaning of § 873 BGB, which is not subject to any special provisions.
• Finally, a formal requirement would be incompatible with the healing effect in § 311 para. 1 sentence 2 BGB, as a healing of a formally invalid obligatory transaction would otherwise regularly not occur if the agreement were also subject to the same formal requirements.

Reference: BGH, Judgment of 8.4.2016 – V ZR 73/15 (published in NJW 2016, 2035)

In addition to the so-called planning law amendment – which introduced, among other things, the Urban Area as a new building area type into the BauNVO – and the amendments to the TA Noise regulations, there have recently been further changes in the area of public construction law.
The Act on the Adaptation of the Environmental Legal Remedies Act and Other Provisions to European and International Law Requirements of 29 May 2017 came into force with effect from 2 June 2017.
This Act has resulted in the preclusion provision of § 47 para. 2a VwGO being deleted without replacement, i.e. repealed. This has implications for legal protection against development plans by way of so-called judicial review of norms.

What does the abolition of the preclusion provisions mean?

Pursuant to § 47 para. 2a VwGO, an application for judicial review of norms was previously already inadmissible if the person making the application only asserted objections that they had not raised or had raised late in the context of the public consultation in the development plan procedure pursuant to § 3 para. 2 BauGB, but could have raised. Under this provision, persons who had not raised any objections in the development plan procedure against the development plan were regularly excluded from judicial review of norms, i.e. from the possibility of judicial review of the respective challenged development plan.

Purpose of the old provision

§ 47 para. 2a VwGO was newly created at the time by the Act of 21 December 2006 in order on the one hand

• to relieve the administrative courts.
• On the other hand, the provision was intended to serve the goal of bringing the respective interests of those affected to the planning weighing process in a timely manner.

It would contradict the fundamental division of responsibilities between the planning authority and the administrative courts if substantive objections were raised unnecessarily only in the court proceedings.

New legal situation: More legal protection for those affected

With the repeal of this preclusion provision of § 47 para. 2a VwGO, applications for judicial review of norms can now also be made when objections were not raised or were raised late in the procedure. Accordingly, in the course of the adaptation act, the preclusion notice in § 3 para. 2 sentence 2 BauGB has also been repealed.

Implications for practice

Whether the repeal of the preclusion provision of § 47 para. 2a in practice actually leads to a greater number of judicial reviews of norms remains to be seen.

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Background: Outer area designations in development level plans

Outer area designations in Hamburg development level plans pursuant to § 10 para. 5 BPVO have not been transferred into current planning law pursuant to § 173 para. 3 sentence 1 BBauGB – even where they are designated for small areas – because there was already no legal basis for the designation of non-building areas for these plans based on the so-called Building Regulation Ordinance (BauRegVO).

Decision of the OVG Hamburg

The Hamburg OVG, having already declared in the past the designations for extensive outer areas within the meaning of § 10 para. 5 BPVO in the transferred development level plans to be obsolete, had until now left open the question of whether at least small-scale outer area designations could claim validity.

New reasoning of the court

This is now answered in the negative on the grounds that the BauRegVO had already not contained a sufficient legal basis. In doing so, the OVG Hamburg simultaneously departs from its case law on the authorization to designate non-building areas under the BauRegVO. In its judgment of 18 December 1975 – Bf II 91/74, the OVG Hamburg still recognized a fundamental designation authorization for non-building areas in § 1 in conjunction with § 3 BauRegVO, because the authorization to designate building areas had indirectly also been associated with the establishment of non-building areas.
The OVG now rejects the legal view held at that time on the grounds that § 3 BauRegVO – contrary to what was assumed at the time – is only an authorization norm for refusing building permits in non-building areas and not at all a legal basis for the designation of building areas.

Significance for owners and administration

The legal treatment has now been conclusively clarified both for the owners of properties located in small-scale outer area designations under the development level plans and for the Hamburg administration. The uncertainties that existed in the past have been eliminated. In the absence of a legally effective designation in the development level plan, the planning law admissibility is governed by § 34 or § 35 BauGB.
By Ines Hartwich
Reference: OVG Hamburg, Judgment of 20.4.2017 – 2 E 7/15.N – juris.

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Background: What are written form healing clauses?

The BGH ruled in its judgment of 27.09.2017 that so-called written form healing clauses are incompatible with the non-derogable provision of § 550 BGB and are therefore invalid.

They cannot therefore in themselves prevent a contracting party from ordinarily terminating a lease agreement by invoking a written form defect (continuation of the Senate judgments BGHZ 200, 98 = IMR 2014, 155 = NJW 2014, 1087, and of 30.04.2014 – XII ZR 146/12, IMR 2014, 330 = NJW 2014, 2102).

The consequence of the judgment is that lease agreement parties can no longer rely on the impossibility of ordinary termination of the lease agreement during the agreed fixed term.

Rather, lease agreements that have a written form defect can in principle be terminated at any time by either contracting party in compliance with the ordinary notice period.

Decision of the BGH: Written form healing clauses violate mandatory law

The BGH had until now always left open the general compatibility of written form healing clauses with § 550 BGB. Previously, the BGH had only decided that it is incompatible with § 550 BGB if written form healing clauses also deprive an acquirer who enters into the lease agreement as the new landlord of the possibility of ordinary termination on grounds of a written form violation.

Reasoning of the court

With its current judgment, the BGH has now aligned itself with the voices within legal literature that consider written form healing clauses to be generally invalid (regardless of whether the clause constitutes standard terms and conditions or an individually negotiated agreement).

The BGH justifies its view on the grounds that the provision of § 550 BGB serves not only

• to protect the acquirer, but also
• to ensure the provability of long-term agreements between the contracting parties and to protect the contracting parties from entering into long-term obligations without due consideration.

According to the BGH, the legislature deliberately restricted contractual freedom through § 550 BGB to the effect that long-term lease contractual obligations (whether relating to residential or commercial premises) require the written form. If the written form prescribed in § 550 BGB is not observed in lease agreements, the non-derogable statutory consequence is that there is also no long-term tenancy to be preserved.

Consequences for landlords and tenants

A written form healing clause would circumvent this legal consequence deliberately intended by the legislature in an impermissible manner, since a lease agreement, even if the written form is not observed, should not – as provided by the legislature – be subject to ordinary termination. The BGH considers this to constitute an impermissible violation of mandatory law with the consequence of the invalidity of the written form healing clause.

Although the BGH identified a written form defect in the case now decided (the parties had agreed on an adjustment of the contractually agreed indexation clause without adequate reference to the lease agreement), the landlord was unable to validly terminate in the present case. Rather, the judges found that the landlord’s conduct was contrary to good faith (§ 242 BGB), since they had benefited solely from the subsequently concluded agreement and now merely wished to use the lack of written form to “extricate themselves from a long-term lease agreement that had become burdensome.”

Risk of ordinary terminability

As a result of the BGH’s judgment, there is now a risk of ordinary terminability at any time in relation to every tenancy in which the statutory written form is not observed. Only the objection of § 242 BGB (good faith) stands in the way of a termination on grounds of non-compliance with the written form. However, this provision is likely to be invoked only where the strict application of existing law would lead to unjust results.

Our recommended course of action for practice

It is therefore strongly advisable to ensure both when concluding a lease agreement and during the term of the tenancy that all (material) agreements of the tenancy are recorded in compliance with the written form.

Reference: BGH, Judgment of 27.09.2017 – XII ZR 114/16

More on the topic:

• Written form goodbye – or maybe not?
• Abolition of the written form, introduction of the text form for long-term commercial lease agreements
• Written form also satisfied with unilaterally signed lease agreements

Do you have questions on the written form in tenancy law?