Property law

Real Rights - A real right is an absolute right that grants direct legal control over a thing and is enforceable against anyone. In real estate law, rights in rem are of central importance: Ownership (Section 903 BGB) is the most comprehensive right in rem; in addition, there are limited rights in rem such as land charges, mortgages, easements, and hereditary building rights. Rights in rem in real property are entered in the land registry and are therefore accessible to everyone.

Types of Real Rights in Real Estate

Real rights in real estate can be divided into three categories:

• Ownership (Sections 903 et seq. BGB): The most comprehensive real right-the owner may dispose of the property as they see fit, provided that this does not conflict with the law or the rights of third parties
• Rights of use: easement (§ 1018 BGB, e.g., right of way), limited personal servitude (§ 1090 BGB, e.g., right of residence), usufruct (§ 1030 BGB), hereditary building right (ErbbauRG)
• Rights of realization: Land charge (§ 1191 BGB), mortgage (§ 1113 BGB), annuity charge (§ 1199 BGB) - serve to secure credit and enable the creditor to enforce collection
• Right of first refusal (Section 1094 BGB): A right secured in rem to step in as the buyer in the event of a sale of the property

Creation of rights in rem

The acquisition of rights in rem to real property follows the so-called principle of separation and abstraction: The contractual obligation (e.g., purchase agreement) and the real-property transaction (transfer of title + land registry entry) are legally independent of one another. Even if the purchase agreement is invalid for any reason, the land registry entry remains valid for the time being-the former owner must then pursue a claim for correction (Section 894 BGB).

The same logic applies to limited rights in rem: A land charge only comes into existence upon agreement, registration, and transfer of the deed (in the case of a registered land charge) or upon agreement and registration (in the case of a book land charge). The land register thereby offers the purchaser public faith (Section 892 BGB)-anyone who acquires in good faith relying on the accuracy of the land register is protected.

Significance of the Land Register

Rights in rem to real property-unlike those in movable property-come into existence only upon registration in the land register (Section 873 BGB). The land register is divided into three sections:

• Section I: Ownership (who is the owner?)
• Section II: Encumbrances and restrictions (easements, preliminary notices, objections, restrictions on disposal)
• Section III: Real property liens (land charges, mortgages)

The priority of rights in rem is determined by the date of registration-older rights take precedence over newer ones. This priority is decisive for the distribution of proceeds in the event of a foreclosure auction. Land charges in Section III take precedence over subordinated creditors-those registered as first-ranking creditors are satisfied first from the auction proceeds.

Practical Tip for Property Owners in Nuremberg and Franconia

Before purchasing any real estate in the Nuremberg metropolitan area, you should obtain and carefully review a current land registry extract. Especially in the older districts of Nuremberg (Old Town, St. Johannis, Gostenhof), historical encumbrances are frequently found: Easements, utility rights, or real encumbrances that have been registered for decades and may restrict the use of the property. In the surrounding Franconian communities-such as the historically developed town centers of Hersbruck, Lauf an der Pegnitz, or Zirndorf-old rights from the 19th century occasionally surface that have been forgotten and are actually long since obsolete. We recommend having Sections II and III of the land register reviewed by a notary or attorney before purchasing-this will help you avoid unpleasant surprises after the transfer of ownership.

Frequently Asked Questions

What is the difference between a right in rem and a right in personam?

A right in rem has absolute effect-it applies to everyone and is attached to the property, regardless of a change in ownership. A right in personam (e.g., a lease agreement) has only relative effect between the contracting parties. If a property is sold, a registered easement remains in effect; a lease agreement remains in effect only due to the special rule “Purchase does not terminate the lease” (Section 566 BGB). In the event of a conflict between a right in rem and a contractual right, the right in rem generally prevails-for example, when a registered land charge takes precedence over a subsequent rent claim. For buyers, this means: The land register is the most important document they must fully understand before the purchase.

Can I have a right in rem deleted from the land register?

A deletion requires the authorization of the entitled party (Section 19 GBO) in a notarized form and an application to the land registry office. Land charges can be deleted after loan repayment with a deletion authorization from the bank. Legacy rights (e.g., rights of way that are no longer needed) can be deleted if the entitled party consents-or through a public notice procedure at the local court if the entitled party can no longer be located. In the Nuremberg metropolitan region, the Nuremberg Local Court is responsible for public notice procedures; based on experience, such a procedure takes six to twelve months. The costs depend on the value of the right to be cancelled.

Which real rights reduce the value of my property?

In particular, rights of residence and usufruct reduce value (since they restrict free use and make sale more difficult), right of way and utility easements (restrictions on development potential on the affected portion of the property), as well as first-priority mortgages in favor of third parties (risk in the event of foreclosure, as the purchaser must assume the right). The exact reduction in value depends on the scope of the right, the remaining term, and the property’s location. In the case of a life-long usufruct on a condominium in Nuremberg, the reduction in value can amount to 20-40% of the market value-an individual appraisal by an expert is therefore essential.

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