OLG Bremen, decision of 16 April 2020 - 3 W 9/20
Central standards: Art. 20, 21, 34 EU Succession Regulation
(Validity of German inheritance law for an estate of a British national located in Germany)
Author's note:
If the deceased was a British national, the succession to the estate property located in Germany is subject to the reversionary provisions of Art. 34 of the EU Succession Regulation.
For the reasons:
I.
The applicants have applied for the registration of a land charge and - applicants 1-5) - the registration of a priority notice of conveyance. By notarised purchase agreement dated 25 October 2019 (UR no. ..... of notary Y), the applicants 1-4) acquired a property located in Bremerhaven. Applicant 5) had died on 14 March 2019, i.e. she was no longer alive at the time the purchase agreement was notarised. She was a British national (England and Wales). During the notarisation, one of the other part owners submitted the declarations of sale as an unauthorised representative for the applicant (5). On 1 August 2019, Mr Z was appointed administrator of the estate of the applicant 5) by deed of the High Court of Justice of England and Wales (Oxford). By notarised declaration dated 24.01.2020, he approved the declaration of the representative without power of attorney recorded in the deed dated 25.10.2019 (deed no. of notary Y). The land registry rejected the entry in an interim order dated 17 February 2020. It stated that, in view of the principle of estate division applicable in England, German law applied to the immovable assets located in Germany. The administrator could not act in this case. The consent of Mrs X's heirs was therefore required, together with the submission of a certificate of inheritance with a limited scope. The applicants lodged an appeal against this interim order on 27 February 2020. They point out that, pursuant to Art. 3 No. 1 lit. e. EGBGB, the applicable law is to be determined exclusively in accordance with 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 (hereinafter: EU Succession Regulation). In the absence of a choice of law by the testator, the applicable law pursuant to Art. 21 para. 1 of the EU Succession Regulation is determined by the last habitual residence of the deceased. As she had lived in England, English law was to be applied. According to Art. 23 para. 2 lit. f. EU Succession Regulation, the determined law was also to be applied to the rights of the estate administrators, in particular with regard to the disposal of assets. Pursuant to Art. 34 para. 1 EU Succession Regulation, there is only a referral back if the applicable law refers to the law of a third country. As the United Kingdom is still a member of the European Union, it must still be treated as an EU member state. There was therefore no referral back to German law. The Land Registry did not remedy the complaint and submitted it to the Hanseatic Higher Regional Court for a decision. It stated that the provisions of the EU Succession Regulation did not apply because the United Kingdom had not been a member state within the meaning of the EU Succession Regulation during its EU membership.
II.
The appeal is admissible. The Senate understands the appeal lodged by the notary to have been lodged not in his name but in the name of the applicants, i.e. the sellers and, for the land charge, also for the creditor (who has also submitted the application for registration). However, the appeal is inadmissible insofar as it is also alleged to have been lodged on behalf of applicant 5). Applicant no. 5) (hereinafter: vendor no. 5) has already been deceased since 14 March 2019 and is therefore not a party to the proceedings. The appeal is otherwise admissible. However, it is not well-founded. As a result, the land registry was right to refuse the entry. In the opinion of the Senate, there is already no effective authorisation for registration pursuant to Section 19 GBO for both applications. The purchase agreement - despite the involvement of foreign - English - sellers - is subject to German law pursuant to Art. 4 para. 1 lit c. Rome I Regulation, German law is applicable. The transfer of ownership is also governed by German law pursuant to Art. 3, 43 (1) EGBGB, as the property is located in Germany. However, in accordance with Section 104 BGB, only a person with legal capacity can make a declaration of intent. The legal capacity of the seller under 5) is governed by English law in accordance with Art. 7 EGBGB. She was already deceased at the time the contract was notarised and was therefore unable to make any declarations. According to all legal systems, legal capacity ends with the death of a person (Ludwig in: Herberger/Martinek/Rüßmann/Weth/Würdinger, jurisPK-BGB, 9th edition, Art. 7 EGBGB Rdnr. 14, as of 01.03.2020); accordingly, they can no longer make any declarations of intent. Even a representative without power of attorney cannot act on behalf of a person who is already deceased at the time the declaration is made, i.e. who no longer exists, with the result that the heirs of the deceased could authorise the declaration. § Section 177 BGB is not applicable to such a constellation, not even by analogy. However, it is occasionally argued that the provision should also apply when acting on behalf of a non-existent person. However, this is regularly understood to mean a legal entity that does not (yet) exist (e.g. OLG Hamm judgement of 12 September 1997 -29 U 191/96 para. 16, LG Berlin, judgement of 25 June 2019 - 22 O 50/18 para. 27-, juris, Palandt/Ellenberger 79th ed. 2020 Section 177 BGB para. 3, Ulrici in BeckOGK Section 177 BGB para. 70 et seq.). In the case of representation of a non-existent person, the application of Section 179 BGB is regularly of decisive importance, i.e. the question of whether the (unauthorised) representative acting on behalf of a non-existent person is liable for the declaration made by him (see BGH, decision of 5 February 2013 - VIII ZR 276/12 Rdnr.1 - beck-online, Palandt-Ellenberger loc. cit. para. 72). However, the liability of the representative without power of representation is not at issue in the decision to be made here regarding a land register entry.
There is also no need for an analogous application of Section 177 BGB to a natural person who has already died; in particular, there is no regulatory gap. The assets are transferred to the heirs at the time of death (Section 1922 (1) BGB), meaning that they are authorised to dispose of the assets in the estate. If the heirs are unknown, there is the possibility of guardianship of the estate in accordance with Section 1960 (2) BGB, so that the guardian of the estate (for the unknown heirs) has the power of disposal. In the case to be decided, the property share of the seller under 5) was already part of the estate of the deceased at the time of notarisation. Her - obviously also known - heirs are authorised. Finally, it is also not apparent - especially not from the notarised deed - that the seller (5) would have granted the other part owner a power of attorney during her lifetime that would have been valid beyond her death. Such a power of attorney would - according to German law - have had to be taken into account, but even then the heirs would have had to be represented (see Palandt/Weidlich 79th ed. 2020 Einf. vor § 2197 BGB Rdnr. 10).
Whether in this case the „administrator“ may have been authorised to make declarations for the estate can be left open in this respect, as he did not make any declarations of his own for the estate, but authorised declarations by third parties. In view of the unambiguous notarised or notarially certified declarations, the declaration of approval cannot be reinterpreted as a declaration of disposal or approval of his own, irrespective of whether the „administrator“ was entitled to do so. For this reason, both the declaration of sale under the law of obligations for the share of the deceased and - which is more important in the context of the proceedings for entry in the land register - the corresponding authorisation for entry are invalid, so that neither the land charge nor the priority notice of conveyance can be entered in the absence of the consent of the previous registrants. As a precautionary measure, the Senate draws attention to the following circumstances for the further proceedings:
According to Art. 21 EU Succession Regulation, English law is to be applied to the legal succession after the death of the part owner with the last habitual residence in England. Art. 21 EU Succession Regulation is also to be applied in accordance with Art. 20 EU Succession Regulation if it is not the law of a member state. This also applies to the law of the United Kingdom because it has not signed the EU Succession Regulation and is therefore - even during its membership of the European Union or in the transitional period after its withdrawal - deemed to be a third country (see BeckOGK/J. Schmidt, 1 February 2020, EU Succession Regulation Art. 20 para. 20, Geimer/Schütze Int. Rechtsverkehr/Schall/Simon, 58th ed. October 2019, EU Succession Regulation Art. 1 para. 3 - beck-online). For this reason, Art. 34 EU Succession Regulation must also be applied, with the result that the reversion to the lex rei sitae applicable in England due to the division of the estate with regard to movable and immovable assets must be applied. (see Kroiß/Ann/Mayer- Odersky Great Britain 5th ed. 2018 para. 3.4 - beck-online) Please note. Germany is a member state pursuant to Art. 34 para. 1 lit. a) EU Succession Regulation, so that it is a pure reference to a substantive standard (see: BeckOGK/J. Schmidt, 1.2.2020, EuErbVO Art. 34 para. 5).
Accordingly, German law applies to the immovable assets of the seller under 5) concerned here. As a result, German law must also apply to the Settlement of the immovable estate German law (see Kroiß/Ann/Mayer-Odersky loc. cit. para. 16), so that the administrator appointed in England cannot make any declarations for the estate. A corresponding function is unknown under German law, as this is not an execution of the will - ordered by the testator (see Firsching/Graf, Nachlassrecht, 11th edition 2019 §48 para. 51 - beck-online). Only the designated heirs are therefore authorised to dispose of the immovable estate located in Germany. As the comments on the further proceedings are of no relevance to the decision, the appeal on points of law was not admissible.
Apart from that, the matter is not of fundamental importance and the further development of the law or the safeguarding of uniform case law do not require a decision by the court of appeal.
The value of the complaint for the application for the creation of a land charge results from § 53 para. 1 sentence 1 GNotKG and for the application for the entry of a priority notice from § 45 para. 3 GNotKG.