Dingliches Vorkaufsrecht in vier Rechtsordnungen : Rechtshistorische und Rechtsdogmatische Fallstudie zur Gegenwärtigkeit alten Lokalrechts

german

2016

volume 71, issue 7/8

Narodna in univerzitetna knjižnica
(Obvezni izvod spletne publikacije)

The article links recent German legal history and legal doctrine concerning German real estate law by considering the exemplary case of a pre-emption right in real estate established in a former Prussian province in the former GDR before the introduction of the German Civil Code (Bürgerliches Gesetzbuch - BGB) in the year 1900. Taking legal history as its starting point for exploring the legal status quo, the article discusses the development, sustainability and present-day content of such a pre-emption right by tracing its modes of legal transition, first under the aegis of the German Civil Code (Bürgerliches Gesetzbuch - BGB), then into the legal system of the GDR and its Civil Code (Zivilgesetzbuch - ZGB), and finally into the German legal system of the post- -reunification era. Special attention is given to legal issues arising in the case of a pre-emption right to real estate in which three legal complications coincide: (1) The person entered in the land register as the holder of the pre-emption right may in fact not be the true holder of that right; (2) in addition, uncertainty as to the number of sales affected by the pre-emption right; (3) and finally, a first sale had taken place shortly after German reunification, with the person registered as the holder of the pre-emption right declaring his abstention from exercising the right to pre-empt on that occasion while wanting to exercise that right at the time of a second sale more than a decade later. While these factors must be evaluated from the perspective of objective law as it develops in the course of history and changes in legal doctrine first, they must eventually be complemented by (4) considering the necessity and legal means to protect the bona fide real estate owner whose property appears to be subject to a pre-emption right while he is in good faith as regards the termination of that right. In this respect, the article provides new insight into the relevant rules of current German real estate law (par. 893 BGB), thus widening the significance of the exemplary case presented in the article by indicating the legal opportunity to apply the current German real estate law to the benefit of bona fide owners of real estate who are subject to pre-emption rights more broadly than has been realized to date.

29.05.2017