inherited property

Possession of an estate - Possession of an estate refers to the actual possession of an estate or estate assets by a person who is not a lawful heir. The term describes the situation where someone takes possession of estate assets-often including real estate-without being entitled to do so. In this case, the true heir is entitled to a claim for restitution under § 2018 BGB (inheritance claim). In common usage, “inheritance possession” is also used to refer to the heir’s title to inherited real estate.

Inheritance Claim and Its Prerequisites

The statutory inheritance claim (Section 2018 of the German Civil Code) protects the lawful heir:

Prerequisites for the claim:

• The plaintiff is the lawful heir (by will, inheritance contract, or statutory succession)
• The defendant is a possessor of inherited property-i.e., they possess an item of the estate without legal title
• The possessor of inherited property need not act in bad faith; the claim exists regardless of fault

What the claim to inheritance encompasses:

• Surrender of all items of the estate acquired (§ 2018 BGB)
• Return of surrogates (items the possessor of the estate has acquired through the sale of estate assets)
• Return of benefits derived (e.g., rental income from an inherited property, § 2020 BGB)
• Damages for culpable damage to or destruction of estate assets

Statute of limitations: The inheritance claim is subject to a 30-year statute of limitations (Section 197 BGB); for a possessor of the estate acting in bad faith, the statute of limitations is 3 years from the date of knowledge.

Possession of Inherited Property in Real Estate

In the real estate sector, possession of inherited property typically arises in the following scenarios:

• Apparent Heirs: A person believes they are an heir based on an invalid or contested will and takes possession of the property
• Omitted heir: In intestate succession, an heir is forgotten or intentionally omitted; another relative exercises the right of possession
• Disputed community of heirs: A co-heir possesses and uses the inherited property alone, without the consent of the other co-heirs (de facto sole possession)

In practice, inheritance possession of real estate often leads to protracted legal disputes. As long as the land register has not been corrected, the legal situation remains unclear for third parties (e.g., potential buyers).

Inheritance Possession Scenarios and Legal Consequences

Scenario	Inheritance Possessor	Heir’s Claim	Risk to Third Parties
Invalid will	Apparent heir	Surrender pursuant to § 2018 BGB	Acquisition in good faith possible (§ 892 BGB)
Deceased co-heir	Other relative	Surrender + rental income (§ 2020 BGB)	Low (land registry shows correct status)
Dispute within the community of heirs	Sole co-heir	Surrender for partition (Section 2041 BGB)	Land registry shows all co-heirs
Apparent owner in bad faith	Unauthorized third party	Immediate surrender + damages	Acquisition in good faith not possible
Apparent heir in good faith	Person with contested appointment	Restitution (mitigated liability)	No damages without fault

Protection through the Land Register and Risk for Third Parties

The Land Register enjoys public faith (Section 892 BGB): Anyone registered as the owner in the Land Register is deemed entitled vis-à-vis third parties acting in good faith. This means: If a possessor of inherited property is erroneously registered as the owner in the land register-for example, because they had themselves registered based on a forged or void will-a buyer acting in good faith can validly acquire ownership.

This situation is particularly unfortunate for the true heir, as they can then only assert their claim for restitution as a claim for damages against the possessor of the estate. The title acquired by the third party acting in good faith, however, cannot be reversed. This clearly underscores how important it is for the true heir to promptly correct the land register.

Practical Tip for Property Owners in Nuremberg and Franconia

Anyone who takes over a property from an estate-whether as sole heir or co-heir-should arrange for the land registry to be corrected as soon as possible. This protects against situations of possession by the possessor and publicly clarifies ownership status. In Nuremberg, the Land Registry Office at the Nuremberg Local Court is responsible.

We recommend submitting a certificate of inheritance or a notarized copy of the will for this purpose. The two-year grace period for free title transfer following the opening of the estate should definitely be utilized. In the event of disputes among heirs regarding inherited real estate in Nuremberg, we are happy to mediate between the parties or facilitate contact with specialized estate planning attorneys.

Frequently Asked Questions

What is the difference between possession of an inheritance and a claim to an inheritance?

Possession of an inheritance refers to the factual situation-someone has the estate or estate assets in their possession without being an heir. A claim to inheritance (Section 2018 of the German Civil Code) is the right of the true heir to demand the return of these assets. A claim to inheritance presupposes possession of the estate.

Can a possessor of an estate sell a property?

No-it is not legally valid, as they are not the owner. However, under certain conditions, a third party acting in good faith may acquire real estate in good faith from an unauthorized person if the land register lists the possessor of the estate as the owner (Sections 892, 893 BGB - public faith in the land register). This underscores how important it is for the true heir to correct the land register promptly.

Do I have to surrender rental income if it turns out that I am not an heir?

Yes. As a possessor of an estate, you are obligated under § 2020 BGB to surrender to the true heir the benefits derived from the estate-including rental income from an inherited property. Holders of inherited property acting in good faith are subject to less strict liability than those acting in bad faith.

How can I tell if there is an issue with ownership of inherited property when buying real estate?

A red flag is when the seller and the land registry owner are not the same person, or when the line of succession cannot be clearly documented. Always request a current land registry extract and-for inherited properties-proof of succession (certificate of inheritance or a notarized copy of the will). We review these documents for our clients prior to purchase to identify any potential risks.

Back to the Real Estate Glossary.