Property law: Proprietary pre-emption right can be established without formal requirements

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)