KG Berlin, decision of 3 September 2019 - 1 W 161/19
Central standardsSections 873, 875, 899 BGB, Sections 13, 18 GBO, Article 62 et seq. EuErbVO
(Recognition of a European Certificate of Succession in German land register proceedings)
Remark:
Proof of an heir's power of disposal can only be provided by a European Certificate of Succession by submitting a certified copy of the certificate issued by the issuing authority, the validity period of which has not yet expired at the time of entry in the land register. This also applies if the period of validity expires after the application has been submitted to the land registry.
For the reasons:
2 The complaint is not well-founded.
a) If there is an obstacle to the registration applied for, the JCC must either reject the application, stating the reasons, or set the applicant a reasonable period of time to remove the obstacle, § 18 Para. 1 Sentence 1 GBO. Such an obstacle to registration exists here, meaning that the interim orders were issued correctly. The GBA must take into account every obstacle occurring up to the completion of the application; the decisive factor is therefore not the time at which the application is submitted, but the time at which the entry is completed (BayObLGZ 1948, 360, 365; Demharter, GBO, 31st ed., § 18 para. 4; Böttcher in Meikel, GBO, 11th ed., § 18 para. 8; Volmer in KEHE, Grundbuchrecht 8th ed., § 18 para. 15).
b) The cancellation of a priority notice is carried out upon application, Section 13 (1) sentence 1 GBO, if the person entitled to the priority notice authorises it, Section 19 GBO. If it is not the person entitled to the priority notice who has authorised the cancellation but their legal successor, the legal succession must be proven. In the case of succession, proof can only be provided by means of a certificate of inheritance or - if the deceased died after 17 August 2015, as is the case here - a European Certificate of Succession, Section 35 (1) sentence 1 GBO.
aa) The European Certificate of Succession is intended for use by heirs who need to invoke their legal status in another Member State of the European Union, Art. 63 para. 1 Regulation (EU) No. 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession (EU Succession Regulation). The European Certificate of Succession must be submitted to the JCC as a certified copy because the issuing authority only issues certified copies to the applicant and any other person who can prove a legitimate interest, Art. 70 para. 1 European Succession Regulation (Schaub in Bauer/Schaub, GBO, 4th edition, § 35 para. 117). The certified copies are generally only valid for a limited period of six months, Art. 70 para. 3 sentence 1 EU Succession Regulation. After this period has expired, any person in possession of a certified copy must apply to the issuing authority for an extension of the period of validity of the certified copy or for a new certified copy in order to be able to use the certificate for the purposes specified in Art. 63 of the Succession Regulation, Art. 70 para. 3 sentence 3 of the Succession Regulation.
bb) The certified copies of the European Certificate of Succession dated 8 June 2017 submitted by the parties 1) and 2) with the application dated 9 November 2018 were valid until 14 November 2018 and 29 December 2018 respectively, i.e. they were still valid when the application was received by the JCC on 13 November 2018, Section 13 para. 2 sentence 2 GBO. They are no longer valid.
However, it is argued in this respect that the expiry of the validity period - of the certified copy - of a European Certificate of Succession after the application has been submitted to the JCC should not be prejudicial. The applicant has no influence on the processing times of the JCC and, moreover, the legal interpretation of Section 878 BGB is in favour of the applicant (Wilsch in Hügel, BeckOK-GBO, 2019, Section 35 para. 39; ders. in Gierl/Köhler/Kroiß/ Wilsch, Internationales Erbrecht, 2nd ed, Part 3, Section 5, para. 28; Volmer, loc. cit., Section 35, para. 79; ders., notar 2016, 323, 325; Schaub, loc. cit., para. 119; Dutta in MünchKommBGB, 7th ed., Art. 69 EuErbVO, para. 4).
According to another opinion, the time of entry in the land register should be decisive (Schmitz, RNotZ 2017, 269, 286; Lange, DNotZ 2016, 103, 112; Böhringer, NotBZ 2015, 281, 284).
The Senate agrees with the latter view. In land register proceedings, a certificate of inheritance establishes full probative force for the existence of the inheritance right attested in it over and above the substantive legal presumption effect of Section 2365 BGB, Section 35 Para. 1 Sentence 1 Alt. 1 GBO (OLG Frankfurt, FGPrax 2019, 58, 59; OLG Munich, FamRZ 2016, 939, 940; Demharter, loc. cit., Section 35 para. 27). In addition, the European Certificate of Succession is an effective document for the entry of the succession assets in the relevant register of a Member State, Art. 69 para. 5 EU Succession Regulation. In particular, the certificate can be used as proof of the legal status and/or rights of each heir, Art. 63 para. 2 lit. a of the European Succession Regulation. Accordingly, the - national - legislator has - by way of clarification (see Lange, loc. cit.) - added the European Certificate of Succession to Section 35 (1) sentence 1 GBO as a means of proof in land register proceedings equivalent to the certificate of inheritance, Art. 6 Act on International Succession Law and on the Amendment of Regulations on the Certificate of Succession and on the Amendment of Other Regulations of 29 June 2015 (Federal Law Gazette I, p. 1042).
However, the probative value of the European Certificate of Succession in land register proceedings does not go beyond the effects determined by the European legislator. Accordingly, it is presumed that the person named as heir in the certificate has the legal status and/or the rights or powers specified in the certificate and that these rights or powers are not subject to any conditions and/or restrictions other than those specified in the certificate, Art. 69 para. 2 sentence 2 of the European Succession Regulation. In legal transactions, the original of the Certificate to be retained by the issuing authority is replaced by the certified copies to be issued to the authorised persons, Art. 70 para. 1 of the Succession Regulation. These certified copies are copies within the meaning of the German legal system (BT-Drucks. 18/4201, p. 81; Fornasier in Dutta/Weber, Internationales Erbrecht, Art. 70 EuErbVO para. 2; Wagner/Fenner, FamRZ 2015, 1668, 1673; Volmer, Rpfleger 2013, 421, 430).
In contrast to the - German - certificate of inheritance, there is no provision for the European Certificate of Succession to be withdrawn. Rather, the regular validity period of six months is intended, among other things, to protect legal transactions, Section 70 (3) sentence 1 of the EU Succession Regulation (Dutta, loc. cit., Art. 70 EU Succession Regulation, para. 1; Fornasier, loc. cit., para. 6; Dorsel in Geimer/Schütze, Internationaler Rechtsverkehr in Zivil- und Handelssachen, 2019, Art. 70 EU Succession Regulation, para. 6). After the expiry of the validity period, the certified copy loses the evidentiary effects to which it is entitled under Article 69(2) and (5) of the EU Succession Regulation (Austrian Supreme Court, FamRZ 2018, 635, 637; Dutta, loc. cit., Art. 69 EU Succession Regulation, para. 2; Fornasier, loc. cit., para. 7).
If the deadline expires before the application is submitted to the JCC, it is not disputed that such a European Certificate of Succession is unsuitable as proof of succession (Wilsch in Hügel, loc. cit.; ibid. in Gierl/Köhler/Kroiß/Wilsch, Internationales Erbrecht, loc. cit., para. 25; ibid., ZEV 2012, 530, 532; Schaub, loc. cit.). However, the situation is no different if the deadline expires after the application has been filed. Such a certificate also lacks the probative value required for entry in the land register. This is not affected by the fact that the applicants generally have no influence on the duration of the registration procedure. The period stipulated in Art. 70 para. 3 sentence 1 of the EU Succession Regulation has been deliberately set at a short time (Wagner/Fenner, loc. cit.). The issuing authority should thus always retain control over the certified copies of the certificate of succession issued by it (Dutta, loc. cit., Art. 70 EU Succession Regulation para. 1). If the time at which the application is made is sufficient for the probate certificate to have evidential effect, this control function could be rendered ineffective if the entry in the land register was only made a long time later.
The Senate does not fail to recognise the assessments made in section 878 BGB (and section 130 para. 2 BGB, see Volmer, notar 2016, 323, 325). This is intended to protect those who are dependent on the cooperation of the JCC due to the obligation to register, sections 873, 875, 899 BGB, and who therefore cannot immediately realise their legally protected intention to create, section 903 BGB or Art. 14 GG (BGH, DNotZ 2017, 119, 122). Therefore, a restriction on the disposition that occurs after the application has been filed should no longer affect the validity of the declaration of disposition (Palandt/Herrler, BGB, 78th edition, Section 878 para. 1). The otherwise existing requirement of the power of disposal at the time of registration is thus overcome.
However, there is no reason to generalise these (exceptional) regulations on substantive law and they have no equivalent in procedural law. In terms of procedural law, it is a matter of proving the authority to authorise the requested entry, § 19 GBO. In this respect, too, the time of registration is decisive (Senate, decision of 21 November 2011 - 1 W 652/11, FGPrax 2012, 8; Demharter, loc. cit., Section 19 para. 60). According to the above, the required evidence cannot be provided with a European Certificate of Succession that has become invalid. In particular, such a certificate does not prove the right of disposal at an earlier point in time, such as when the application was filed. Ultimately, the situation for the applicant is no different than if a certificate of inheritance submitted when the application was filed had been withdrawn or declared invalid in the course of the registration procedure. If the GBA has positive knowledge of this, the application submitted must be rejected or the submission of another certificate of inheritance must be ordered by interim order (Krause in Meikel, § 35 para. 87; Volmer in KEHE, loc. cit., § 35 para. 61; Schaub, loc. cit., § 35 para. 98).
Nothing else follows from the case law on proof of the insolvency administrator's power of disposal, which is also supported by the Senate (Senate, loc. cit.). It can also be provided by submitting a certified copy of the deed of appointment if a notary confirms promptly after an application for entry in the land register that the original was available when the declaration required for entry in the land register was submitted. The possibility of the expiry of the office of the insolvency administrator can be disregarded if it appears unlikely in the circumstances of the individual case (Senate, loc. cit., 9). However, this case is fundamentally different from the facts of the present case. While the insolvency administrator's power of disposal is proven at least at the time of his declaration and its continued existence can be inferred from life experience if it is entered in the land register promptly, the necessary proof is lacking in the case of a European Certificate of Succession that has become invalid. After the expiry of the period of validity, the right of succession of the heir identified in the certified copy is not certain and it is up to the issuing authority to check whether this period can be extended on request. (...)