1896de Book3 Chapter02

GERMAN CIVIL CODE OF 1896

• Based on the English Translation by: Wang, Chung Hui (1907). The German Civil Code, translated and annotated with historical introduction and appendices. London: Stevens and Sons. [available on Archive.org]
• Original Version in German.

Book III. Low of Things.

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Chapter II. General Provisions relating to Rights over Land.

Section 873.

• [I] For the transfer of ownership of land, or the creation of any right in another over land, or for the transfer of or the creation of a charge upon such a right, a real agreement between the person entitled and the other party relating to the change of title and registration of the change of title in the land register are necessary, unless the law provides otherwise.
• [II] Before registration the parties are bound by the agreement only if the declarations have been judicially or notarially authenticated, or have been made or filed in the land registry office, or if the person entitled has delivered to the other party an authorisation for registration conformable with the provisions of the Land Registration Act.

Section 874.

• In the registration of a right over land reference may be made to the authorisation for registration for fuller specification of the extent of the right, unless the law provides otherwise.

Section 875.

• [I] For the release of a right over land the declaration of the person entitled that he surrenders the right and the cancellation of the right in the land register are necessary, unless it is otherwise provided by law. The declaration shall be communicated to the land registry office, or to the person in whose favour it is made.
• [II] Before cancellation the person entitled is bound by his declaration only if he has communicated it to the land registry office, or has delivered to the person in whose favour it is made an authorisation for cancellation conformable with the provisions of the Land Registration Act.

Section 876.

• If a right over land is charged with a right of a third party, the consent of such third party is necessary for the release of the charged right. If the right to be released belongs to the owner for the time being of another piece of land, and if such other piece of land is charged with the right of a third party, the consent of such third party is necessary, unless his right is not affected by the release. The consent shall be declared to the land registry office, or to the person in whose favour it is given; it is irrevocable.

Section 877.

• The provisions of 873, 874, 876 apply also to alterations in the substance of a right over land.

Section 878.

• A declaration made under 873, 875, 877 by the person entitled is not invalidated by the fact that the declarant becomes limited in his power of alienation after the declaration has become binding on him, and after the application for registration has been filed in the land registry office.

Section 879.

• [I] The order of priority among several rights to which land is subject is determined, if the rights have been registered in the same division of the land register, by the order of registration. If the rights have been registered in different divisions, the right registered as of earlier date has priority; rights registered as of the same date have equal rank.
• [II] The registration is conclusive for the order of priority, even though the real agreement necessary according to 873 for the acquisition of the right has not been completed until after the registration.
• [III] A different arrangement of the order of priority requires registration in the land register.

Section 880.

• [I] The order of priority may be subsequently altered.
• [II] For an alteration of the order of priority, a real agreement between the person whose right is postponed and the person whose right obtains priority, and registration of the change in the land register are necessary; the provisions of 873, par. 2, and 878 apply. If a hypotheca, a land charge, or an annuity charge is to be postponed, the consent of the owner is also necessary. The consent shall be declared to the land registry office or to one of the parties; it is irrevocable.
• [III] If the right which is postponed is subject to a right of a third party, the provisions of 876 apply mutatis mutandis.
• [IV] The rank accorded 'to the right obtaining priority is not lost by the fact that the right which is postponed is released by juristic act.
• [V] Rights which have rank between the one postponed and the one obtaining priority are not affected by the change of rank.

Section 881.

• [I] In charging land with a right the owner may reserve to himself the authority to have another right, the extent of which is specified, registered with priority to the former right.
• [II] The reservation is required to be entered in the land register; the entry must be annexed to the entry of the right that is to be postponed.
• [III] If the land is alienated, the reserved authority passes to the acquirer.
• [IV] If, before registration of the right for which the priority is reserved, the land has been charged with another right without a similar reservation, the priority is without effect in so far as the right registered with the reservation would be impaired in excess of the reservation in consequence of the intervening right.

Section 882.

• Where land is charged with a right for whose value, according to the provisions applicable to compulsory auction, the person having the right is to be compensated out of the proceeds of a sale whereby his right is extinguished, the maximum amount of the compensation may be specified. The specification requires registration in the land register.

Section 883.

• [I] A caution may be entered in the land register for securing a claim for the concession or release of a right affecting land or affeoting a right over land, or for the alteration of the substance or rank of such a right. The registration of a caution is also permissible for securing a future or conditional claim.
• [II] A disposition which is made affecting the land or the right after the registration of the caution is ineffective, in so far as it would defeat or impair the claim. This applies even where the disposition is made by means of compulsory execution or distraint, or by a trustee in bankruptcy.
• [III] The rank of the right for the concession of which the claim is made is determined by the date of the registration of the caution.

Section 884.

• Where a claim is secured by a caution the heir of the person bound thereby cannot set up any limitation of his liability.

Section 885.

• [I] The registration of a caution is effected by virtue of a provisional decree, or of an authorisation by the person whose land or right is affected by the caution. It is not necessary for the issue of the provisional decree that primd facie evidence be given that the claim to be secured is likely to be endangered.
• [II] In the registration reference may be made to the provisional decree or to the authorisation for registration for fuller specification of the claim to be secured.

Section 886.

• If the person whose land or right is affected by the caution has a defence whereby the enforcement of the claim secured by the caution is permanently barred, he may require the creditor to cancel the caution.

Section 887.

• If the creditor whose claim is secured by the caution is unknown, he may be excluded from his right by means of public summons, if the conditions specified in 1170 for the exclusion of a hypotheca-creditor exist. The effect of the caution is extinguished upon the issue of the decree for exelusion.

Section 888.

• [I] Where the acquisition of a registered right or a right over such a right is ineffective against the person in whose favour the caution is made, the latter may require the acquirer to give his consent to the registration or cancellation which is necessary for the realisation of the claim secured by the caution.
• [II] The same rule applies if the claim is secured by a prohibition against alienation.

Section 889.

• A right over tho land of another is not extinguished by the fact that the owner of the land acquires the right, or the person having the right acquires the ownership of the land.

Section 890.

• [I] Several pieces of land may be united into one piece by the fact that the owner causes them to be registered in the land register as one piece.
• [II] One piece of land may be made a component part of another piece of land by the fact that the owner causes it to be ascribed to the latter in the land register.

Section 891.

• [I] If in the land register a right has been registered in the namo of any person, it is presumed that the right belongs to him.
• [II] If a right registered in the land register has been cancelled, it is presumod that the right does not exist.

Section 892.

• [I] In favour of a person who acquires a right over land or a right over such a right by juristic act, the entries of the land roginter aro deemed to be correct, unless an objection to its correctness is registered, or the incorrectness is known to the acquirer. If a person entitled to a right registered in the land register is limited in his power of alienation over it in favour of a particular person, the limitation is effective against the acquirer only if it appears from the land register itself, or is known to the acquirer.
• [II] If registration is necessary for the acquisition of the right, the question as to the good faith of the acquirer is determined by his state of knowledge at the time of the presentation of the application for registration, or, if the real agreement required by 873 has not been formed until after that time, at the time of the formation of the agreement.

Section 893.

• The provisions of 892 apply mutatis mutandis, if a person in whose name a right has been entered in the land register has received the benefits of an act of performance done by virtue of such right, or if a juristic act, not coming within the provisions of 892 and containing a disposition affecting such right, has been entered into between him and another person.

Section 894.

• If the entry in the land register with regard to a right over land, or a right over such a right, or a limitation of the power of alienation of the kind specified in 892, par. 1 is not in accordance with the actual legal situation, the person whose nght has not, or has not correctly, been registered, or has been impaired by the registration of a non-existent right over the land or of a limitation of the power of alienation, may require the person whose right is affected by the rectification of the land register to give his consent to such rectification.

Section 895.

• If the rectification of the land register cannot be made until after the right of the person who is bound by 894 to consent thereto has been registered, he shall, if required to do so, cause his right to be so registered.

Section 896.

• If the production of a certificate of hypotheca, land charge, or annuity charge is necessary for the rectification of the land register, the person in whose favour the rectification is to be made may require the possessor of the certificate to produce it at the land registry office.

Section 897.

• The costs of the rectification of the land register and of the declarations necessary thereto shall be borne by the person who demands the rectification, unless a contrary intention appears from a juristic relation existing between him and the person bound.

Section 898.

• The claims specified in 894 to 896 are not subject to prescription.

Section 899.

• [I] In the cases provided for by 894 an objection to the correctness of the land register may be registered.
• [II] The registration is made by virtue of a provisional decree or of an authorisation by the person whose right is affected by the rectification of the land register. It is not necessary for the issue of the provisional decree that primd facie evidence be given that the rigbt of the objecting party is likely to be endangered.

Section 900.

• [I] A person who has been registered in the land register as owner of a piece of land without having obtained ownership acquires ownership thereof, if the registration has remained for thirty years and during that time he has proprietary possession of the land. The period of thirty years is reckoned in the same manner as the period for the acquisition of a moveable by usucapion. The running of the period is suspended so long as an objection to the correctness of the registration has been entered in the land register.
• [II] These provisions apply mutatis mutandis, if there has been registered in the land register in the name of any person a right not belonging to him which involves possession of land, or the exercise of which is protected by the provisions applicable to possession. The rank of such a right is determined by the date of its registration.

Section 901.

• If a right over the land of another has been improperly cancelled in the land register, it is extinguished if the claim of the person entitled to it against the owner is barred by prescription. The same rule applies if a right over the land of another created by operation of law has not been entered in the land register.

Section 902.

• [I] Claims arising from registered rights are not subject to prescription. This does not apply to claims for arrears of periodical payments or for compensation.
• [II] A right on account of which an objection to the correctness of the land register has been entered is equivalent to a registered right.