OLG Munich, decision of 10 February 2020 - 34 Wx 357/17
Central standardsSections 22, 53 GBO; Art. 1, 23, 62 EuErbVO; Sections 531 et seq. of the Austrian General Civil Code (ABGB)
(Priority of substantive law over the presumption of correctness of the European Certificate of Succession)
Official guiding principle:
The co-ownership share in real property located in Germany of a German national who had his habitual residence in Austria and died there is not acquired as sole ownership, even if the European Certificate of Succession expressly assigns the real property to a co-heir, since universal succession occurs under the applicable Austrian substantive law of succession, Austrian law does not recognise a division order in rem and therefore the presumption of correctness of the European Certificate of Succession has no effect.
For the reasons:
II The appeal, which is to be interpreted as a limited appeal, is admissible, but is not successful on the merits.
1. (...)
2 However, the complaint is unfounded.
Since the entry of a community of heirs as co-owners is not inadmissible in terms of its content (Section 53 (1) sentence 2 GBO), the only option in the present case is the entry of an objection pursuant to Section 53 (1) sentence 1 GBO. Such an objection must be entered in the land register if the land registry has made an entry in breach of statutory provisions, as a result of which the land register has become incorrect (Hügel/Holzer, GBO, Section 53 para. 15 f. and 24) and the entry can be followed by acquisition in good faith (OLG Frankfurt of 15 November 2018 - 20 W 213/17, FGPrax 2019, 104; OLG Munich of 16 January 2007 - 32 Wx 163/06, FGPrax 2007, 63). The violation of the law must be established and the inaccuracy of the land register must be credible (Demharter, GBO, 31st edition, Section 53 marginal no. 28).
Whether the land registry violated statutory provisions when making the entry by making the entry on the basis of the inheritance order of the District Court of Josefstadt of 13 March 2017 and not on the basis of the ENZ of 10 March 2017 can be left open. Josefstadt of 13 March 2017 and not on the basis of the ENZ of 10 March 2017, because the land register did not become incorrect as a result of the entry of the registered parties „in community of heirs“.
The inaccuracy of the land register pursuant to section 53 (1) sentence 1 GBO covers the material inaccuracy within the meaning of section 894 BGB (Holzer section 53 GBO marginal no. 25). This means that the land register is incorrect if the legal situation represented by the content of the land register does not correspond to the legal situation (Palandt/Herrler, BGB, 79th edition, section 894 marginal no. 2). Only those entries are affected which - as in the present case - are subject to public faith (Senate FGPrax 2007, 63).
The land register would only be incorrect if B had directly acquired sole ownership of the co-ownership share as a result of the inheritance. In the present case, however, the entry of the community of heirs, consisting of B and K, as co-owners corresponds to the substantive legal situation.
Both the succession and the way in which rights in rem are acquired are governed by Austrian law, which provides for universal succession and does not recognise any division orders in rem.
a) The question of which law is applicable is to be determined in accordance with the EU Succession Regulation.
aa) The territorial, material and temporal scope of application of this Regulation is open. Pursuant to Article 83(1) of the Regulation, the EU Succession Regulation applies to the present succession case, as E died in Austria after 16 August 2015 and inherited, among other things, a property located in Germany. There are no overriding international treaties in relation to Austria in the area of applicable substantive inheritance law (Wilsch in Gierl/Köhler/Kroiß/Wilsch, Erbrecht, 3rd ed., Part 5 para. 1 and 2). Since a choice of law pursuant to Art. 22 para. 1 of the EU Succession Regulation was not made, the last habitual residence of E at the time of his death is decisive for the determination of succession pursuant to Art. 21 para. 1 of the EU Succession Regulation. E had this residence in Austria, a member state of the EU Succession Regulation (Döbereiner in Firsching/Graf, Nachlassrecht, 11th ed., § 48 para. 59). According to Art. 23 para. 1 of the EU Succession Regulation, the entire legal succession by reason of death is subject to Austrian law because, as can be seen from Recital 37 p. 4, the EU Succession Regulation pursues the principle of unity of succession and aims to avoid the division of estates as far as possible. To this end, Art. 21 of the EU Succession Regulation subjects the entire succession to the law of the state in which the deceased had their habitual residence (Osterholzer JA 2019, 382).
bb) According to the list in Art. 23 para. 2 lit. e EU Succession Regulation, this also includes the legal provisions concerning the transfer of assets belonging to the estate to the heirs (Döbereiner loc. cit. § 47 para. 22; Sonnentag in jurisPK-BGB, vol. 6, 8th ed., Art. 23 para. 12). Nothing to the contrary arises from Art. 1 para. 2 letters k and l EuErbVO. Due to the numerus clausus of property rights, the provisions on the nature of rights in rem, Art. 1 para. 2 lit. k of the Regulation, and the entry of rights in movable and immovable property in a register, Art. 1 para. 2 lit. l of the Regulation, are not covered by the Regulation. These must continue to be linked autonomously. However, the scope of these exclusions is disputed. In some cases, Article 1(2)(k) of the EU Succession Regulation is understood broadly, particularly in conjunction with Article 1(2)(l) of the EU Succession Regulation, so that not only the nature but also the acquisition of rights in rem are subject to the property law statute (Pawlytta/Pfeiffer in Scherer, MAH Erbrecht, 5th ed., Art. 1 para. 105 with further references). This is particularly relevant in connection with legacies in rem (legacies by vindication), which are provided for in various countries. The decision of the ECJ of 12 October 2017 - C-218/16 (ZEV 2018, 41 - Kubicka; see also Weber DNotZ 2018, 16; Dorth ZEV 2018, 11; Wilsch ZfIR 2018, 253; Leitzen ZEV 2018, 311) has now established that the EU Succession Regulation must be understood to mean that the legacy by vindication is also fully effective under the law of succession in those legal systems that only recognise a legacy in rem. The ECJ justifies this with Art. 23 para. 1 of the EU Succession Regulation, with the uniformity of the law applicable to the succession and with Recital 37 of the EU Succession Regulation. The aim is to prevent a division of the estate, whereby the law of succession takes precedence over the law of property. It can therefore be assumed that the scope of application of Art. 1 para. 2 letter k of the Regulation is limited to the existence and number of rights in rem. However, transitional arrangements are not covered by Art. 1 para. 2 lit. k EU Succession Regulation (Higher Regional Court Saarbrücken of 23 May 2019 - 5 W 25/19, ZEV 2019, 640 mAnm Leitzen; Pawlytta/Pfeiffer Art. 1 EU Succession Regulation para. 108). This is also supported by the fact that Art. 1 para. 2 lit. k EU Succession Regulation only mentions the „nature of the rights in rem“, i.e. their type, and not the manner in which they are acquired (Schmidt in Dutta/Weber, Internat. Erbrecht, Art. 1 EU Succession Regulation para. 127). Even in conjunction with the exception provided for in Article 1(2)(l) of the Regulation in favour of the status of the register, nothing to the contrary emerges. The ECJ specified this in the Kubicka decision (ZEV 2018, 41) to the effect that the conditions under which rights are acquired do not belong to the areas excluded from the scope of application of this regulation according to this provision (Burandt/Schmuck in Burandt/Rojahn, Erbrecht, 3rd ed., Art. 1 EuErbVO para. 15).
b) This means that Austrian law applies in principle both to the question of who is entitled to inherit what share and to the question of how the inheritance is transferred to the heirs.
aa) However, the ENZ dated 13 March 2017 submitted by B already proves that he has become a co-heir at 1/2. This applies irrespective of the fact that the land registry did not use the ENZ valid at the time of B's entry on 3 July 2017 as the basis for the entry.
Pursuant to Art. 63 para. 1 of the EU Succession Regulation, an ENZ is intended for use by heirs who - as in the present case - invoke their legal status in another member state.
(1) Pursuant to Art. 69 para. 2 of the EU Succession Regulation, it is presumed that the certificate correctly states the facts established in accordance with the law applicable to the succession. In principle, „facts“ refers to all facts and legal relationships established in the ENZ (Schmidt in BeckOGK EuErbVO, status: 2019, Art. 69 para. 9 para. 17). In terms of content, the ENZ establishes the positive presumption that the person concerned actually holds the legal status as heir specified therein and the negative presumption that their rights are not subject to any conditions other than those listed (Kleinschmidt in jurisPK-BGB, Vol. 6, Art. 69 EuErbVO para. 7). It is also possible to issue a partial certificate of succession for individual members of a community of heirs, in which the respective share of the estate (Art. 63 para. 2 letter a EU Succession Regulation), i.e. the inheritance quota, can then also be shown (Kleinschmidt Art. 63 EU Succession Regulation para. 29, 30). It is clear from Annex IV No. 1 to Form V of the ENZ that B is an heir and from No. 8 that he is entitled to „half of the estate“.
(2) The correctness of the ENZ must be assumed, which is why a review by the land registry or the court of appeal replacing it in the appeal proceedings is generally excluded. For this reason, it is also not necessary to review the conditions of issue, in particular whether there is a cross-border reference at all (Wilsch loc. cit. § 27 marginal no. 17; Lange DNotZ 2016, 103 [113]). Whether this also applies to the question of whether the ENZ was issued by the competent authority of the country in question is, as far as can be seen, not discussed. Due to the fact that an official form for the ENZ has been introduced (Art. 67 para. 1 sentence 2, Art. 81 para. 2 in conjunction with Art. 1 para. 5 Implementing Regulation (EU) No. 1329/2014), the presumption of correctness should also apply in this respect if this is used. In the present case, however, this is irrelevant, as the relevant certificate originates from the court commissioner responsible in Austria pursuant to Section 1 (1) (1d) and Section 2 of the Austrian Court Commissioners Act (Süß in Kroiß/Ann/Mayer, BGB/Erbrecht, 5th edition, Austria I. para. 4).
(3) At the time of the registration of B and K as co-heirs on 3 July 2017, the ENZ issued on 13 March 2017 was valid. The validity period of 6 months stipulated in Art. 70 para. 3 EU Succession Regulation does mean that the effects of the ENZ described in Art. 69 EU Succession Regulation cease to apply after the expiry of this period, which is why an expired ENZ loses its ability to function as proof of inaccuracy (Wilsch loc. cit. § 2 para. 24). After registration, however, the legal presumption of § 891 para. 1 BGB is in favour of the registered person, whose legitimacy is not shaken by the expiry of the ENZ (Wilsch loc. cit. § 2 para. 27).
bb) However, B did not acquire sole ownership of the co-ownership share because, according to the relevant Austrian substantive law of succession, universal succession occurs (see (1) below), there is no declaration of division of inheritance exceptionally effecting an individual succession (see (2) below), Austrian inheritance law does not recognise a division order in rem by the heir and therefore the presumption of correctness has no effect in this respect despite the express allocation of the real property in the ENZ (see (3) below).
The relevant legal sources for substantive Austrian inheritance law are Sections 531 to 825 of the Austrian General Civil Code (ABGB). The probate proceedings regulated in Austria for probate proceedings were duly conducted and concluded with a legally binding resolution on the division of the estate.
(1) Under Austrian law, the object of succession is the estate as the entirety of the deceased's rights and liabilities (Solomon in Burandt/Rojahn, Erbrecht, 3rd ed. Austria para. 129). Upon death, the estate as a legal entity continues the legal position of the deceased (§ 546 ABGB). With the inheritance, the heir succeeds to the legal position of the estate. The prerequisite for inheritance is the submission of a declaration of acceptance of inheritance in which the persons concerned prove their right to inherit and the conclusion of the judicial probate proceedings. Acquisition of the inheritance takes place through the distribution of the estate, i.e. the transfer of legal ownership to the heirs (§ 797 ABGB). In the case of real estate, the transfer of ownership pursuant to Section 819 ABGB takes place as soon as the inheritance becomes legally effective, irrespective of any entry in the land register (source: European Judicial Network - Austria). In accordance with § 550 ABGB, several heirs form a community of heirs with regard to their joint inheritance rights, which remains in place with regard to the individual items of the estate until the division of the estate (Solomon loc. cit. para. 143). The legal force of the inheritance then leads to universal succession (Solomon loc. cit. para. 127, 181), the ownership of real estate is generally transferred to the heirs in accordance with the inheritance quotas stated in the certificate of inheritance (Austrian Supreme Court of 8 November 1994 - 5 Ob 127/94). The deceased's assets are inherited as a whole and not individual items. Austrian law does not recognise an original special succession in individual items.
The probate hearing was held. B and K. submitted conditional declarations of acceptance of inheritance, as can be seen from the order of inheritance of 13 March 2017; the order of inheritance bears the note „this copy is legally binding and enforceable“.
(2) A direct acquisition of individual rights by an heir under Austrian law is possible if the heirs have already divided the estate prior to the inheritance and this is evident from the inheritance decision. However, this is ruled out in the present case.
The dissolution of the community of heirs takes place through the division of the estate, which can take place both before and after the inheritance (Cejka in Gierl/Köhler/Kroiß/Wilsch, loc. cit., Part 6 A para. 96; Solomon loc. cit. para. 144). The division of the estate may be based on a division order of the testator or the will of the co-heirs. In the present case, it can be concluded from the minutes of the probate hearing, according to which, in accordance with the last will and testament of B, the hereditary share of the property and the credit balance at a German bank are to be taken over and the other estate assets are to be taken over by the co-heiress, that E has made a division order in the will. If the division of the estate takes place prior to the inheritance, the latter has the effect that each co-heir acquires the property to which he or she is thus entitled as a direct consequence of the acquisition of the estate and therefore as the direct universal successor of the deceased as provided for in the division of the estate (Supreme Court loc. cit.; Solomon loc. cit. para. 144; Süß loc. cit. para. 5). The division of the estate takes effect in rem upon inheritance (Cejka loc. cit. para. 96). There is no argument in favour of a division of the estate prior to inheritance here. Pursuant to § 178 Para. 1 No. 3 Austrian Non-Contentious Proceedings Act, reference would have to be made to a division of the estate in the decision on the inheritance, which, however, does not contain such an agreement. The wording in the supplementary resolution to the resolution on the division of the estate, according to which the incorporation „will“ be carried out on the basis of the probate proceedings, also speaks against an agreement on the division of the estate.
(3) The fact that in No. 9 Annex IV No. 1 to Form V of the ENZ it is noted as the asset assigned to the heir „quarter share in parcel ... in the land register district ...“ does not lead to a different result, even taking into account the correctness and presumption effect of the ENZ.
(a) The inclusion of the real estate share is based on Art. 63 para. 2 lit. b, Art. 68 lit. l Alt. 2 EU Succession Regulation, according to which a list of rights and assets must be included in the ENZ „where applicable“ and the certificate can be used for the allocation of these assets. This can be used to prove that an item of the estate has been allocated to the named person (Kleinschmidt Art. 63 EU Succession Regulation para. 32). An indication of individual estate items to which a specific heir is entitled can only be considered if the items are assigned to this heir with effect in rem („directly“), as is conceivable in the case of division orders with effect in rem or vindication legacies known in some legal systems (OLG Munich v. 12.9.2017 - 31 Wx 275/17, ZEV 2017, 580; OLG Nuremberg of 5.4.2017 - 15 W 299/17, ZEV 2017, 579 mAnm Weinbeck; Nordmeier in Hüßtege/Mansel, BGB, Rom-VO, EuErbVO, HUP, 3rd ed, Art. 68 EuErbVO para. 21; Kleinschmidt Art. 63 EuErbVO para. 33, Art. 28 EuErbVO para. 25). The ECJ confirmed this in the above decision. Insofar as the applicable law recognises legacies of vindication, specific items of the estate must be included in the list and are fully effective within the scope of the EU Succession Regulation in accordance with the law applicable to the succession (Wilsch loc. cit. § 2 para. 30).
(b) However, Austrian inheritance law recognises neither vindication legacies nor division orders with an effect in rem (Leitzen ZEV 2018, 311). The reason for the exact indication of the property in the Austrian ENZ is probably that pursuant to Section 33 para. 1 letter d in conjunction with Section 32 para. 1 letter a) of the Austrian General Land Register Act (Allgemeines GrundbuchG) for the transfer of real estate in Austria, it is required that not only the inheritance share is entered in an ENZ, but also the exact designation of the real estate. In this respect, the inclusion of the property share in the ENZ only has a non-binding informative effect and not the correctness and presumption effect of the EU Succession Regulation (OLG Munich ZEV 2017, 580 [581]; OLG Nuremberg ZEV 2017, 579; Schmid in jurisPR-FamR 8/2018 mwN - in each case on German law).
III.
(...)
The requirements for the admission of an appeal on points of law are not met, Section 78 (2) GBO.