January 1, 2010 / Harald Wilsch
I. New framework law in the area of jurisdictio voluntaria
On September 1, 2009, a comprehensive reform in the area of jurisdictio voluntaria became effective in Germany. This means the so-called “Gesetz zur Reform des Verfahrens in Familiensachen und in den Angelegenheiten der freiwilligen Gerichtsbarkeit”, shortened to the designation “FamFG” (download at http://www.gesetze-im- internet.de/famfg/index.html). This law took the place of the old “Act on Voluntary Jurisdiction (FGG)” and brings with it not only changes in the area of the family court, probate court, Commercial Registry procedures, but also changes in the area of the Land Registry Procedure.
2. Relationship of framework law (FamFG) and special law (GBO)
According to Article 1 FamFG the new law applies to the procedure in family matters as well as in matters of jurisdictio voluntaria, insofar as they are assigned to the courts through federal law. Since Article 23 a Paragraph 2 Number 8 of the Juridicature Act (GVG) also assigns land register matters to matters of jurisdictio voluntaria, this also signifies the basic applicability of the new FamFG in Land Registry Procedures. However, the application of this is not unlimited, but only under the condition that the German Land Registry Act (= Grundbuchordnung = GBO) contains no deviating regulations. Therefore, the following relationship exists: the new FamFG is the general framework law; the GBO is in contrast the special law.
3. Some examples
This is also the reason why the general appeal provisions (Article 58 ff. FamFG) do not apply, the more so as the German Land Registry Act (GBO) already provides more specific regulations (see Article 71 GBO). The same also applies to the suspension of the procedure, which is basically possible in the area of jurisdictio voluntaria, but not in the specific Land Registry procedure, because in the Land Registry procedure this would lead to significant ranking problems and significant processing delays. It is the same with the inspection of files, which is now regulated in Article 13 FamFG. However, the GBO also provides a specific regulation here, namely Article 12 GBO. In contrast, it is different with the disclosure of documents, which is now regulated in Article 15 FamFG and which also applies to the Land Registry Procedure. The interim provision of the Land Registry can therefore either be delivered formally or simply by post. However, it is the practice of the Land Registries to deliver formally in order to guarantee a secure procedure.
4. Content of the decision and instruction on the right to appeal, Article 38, 39 FamFG
There are other important new regulations contained in Article 38, 39 FamFG. Accordingly the decision (interim provision or refusal) must contain a formula and a justification, Article 38 Paragraph 3 FamFG. From now on, every decision must contain an instruction on the right to appeal. Therefore, the court where the right to appeal can be filed is also to be indicated now. These are the Land Registry and the Supreme Court in the Land Registry procedure. In addition, the location of the competent court, the form of the right to appeal and the term must also be indicated. The legislator sees an expression of legal assistance herein.
5. Change in the stages of appeal
The change in the stages of appeal is also very important. Since September 1, 2009, the regulation in Article 72 of the German Land Registry Act (GBO) provides that the Supreme Court must decide on the appeal. Insofar as the area of the Free State of Bavaria is concerned, these are the Bavarian Supreme Courts in Munich, Nuremberg and Bamberg. The appeal against the decision of the registrar is to be filed at the respective Supreme Court, which means a significant strengthening of the role of the registrar. The regional court (Landgericht) no longer stands over the registrar; it is now the Supreme Court (Oberlandesgericht).
II.Introduction of e- conveyancing in the german land registry procedure: an overview
1. E-conveyancing and electronic file (=electronic Grundakte), Article 135 GBO
On October 1, 2009, the law for introduction of e-conveyancing in the Land Registry Procedure became effective (ERVGBG (Electronic Legal Relations Land Registry Act), BGBl (Federal Law Gazette) I, Volume 2009, page 2713 ff.). According to Article 135 Paragraph 1 of the German Land Registry Act (GBO) applications can be conveyed as electronic documents, in accordance with the following provisions. The individual state governments are authorised to meet the particular provisions through regulation, Article 135 Paragraph 1 Clause 2 GBO. This is not only due to the federal character of the Federal Republic of Germany, but also due to the different financial points of departure of the federal states.
Therefore it is necessary to design the electronic infrastructure first. Within the scope of such a regulation definite and directly addressable Land Registry facilities can also be named, which are responsible for the receipt of the documents, Article 135 Paragraph 1 Clause 2 Number 3 GBO. This may be a separate Land Registry EGVP post office box (for additional information on the electronic court post office box, see http://www.egvp.de/). The notaries must then send certain data in structured form, in XML format, Article 135 Paragraph 1 Clause 2 No. 4b GBO. The XML data record is then the basis for the generation of a registration proposal, which the Land Registry must check comprehensively and independently (cf. also http://www.xjustiz.de/). According to Article 135 Paragraph 2 of the GBO, it is now also possible to carry on the files in electronic form (in German terms: elektronische Grundakte). The individual countries can once again define the point in time from which the files must be carried on electronically.
2. Receipt of electronic documents, Article 136 GBO
According to Article 136 Paragraph 1 of the GBO, an electronic document is then received at the Land Registry, as soon as the facility meant for receipt has recorded it. The facility is to be installed as a directly addressable facility and/or as a separate Land Registry EGVP post office box. The opening times of the Land Registry no longer matter; the applications and the deeds can be conveyed at any time. The exact point in time of the receipt is to be noted with the aid of an electronic time stamp, Article 136 Paragraph 1 Clause 2 GBO. The receipt is to be confirmed to the applicant immediately with the specification of the point in time of the receipt, Article 136 Paragraph 3 Clause 2 GBO. This confirmation is to be provided with a corresponding electronic signature, Article 136 Paragraph 3 Clause 3 GBO.
3. Form of electronic documents, Article 137 GBO
The regulation according to Article 137 GBO regulates the form of the electronic documents and their equivalence with regard to the paper documents. This means not only the electronically certified copies of documents prepared by the notary, but also the request from other authorities, Article 137 Paragraph 1 and Paragraph 2 GBO.
4. Transfer of documents, Article 138 GBO
The provision in Article 138 GBO regulates to carry on the electronic files (in German terms: elektronische Grundakte) and the conversion of incoming document and/or documents that have already been completed. According to Article 138 Paragraph 1 GBO, the Land Registries can transfer those documents, which come in paper form, into the form of an electronic document. The file formats, which may be used in electronic legal relations with the Land Registries, are defined by regulation, Article 138 Paragraph 2 GBO. If the e- conveyancing has already been introduced, but the file (Grundakte) is still in paper form, the electronic documents submitted are to be printed out and taken to the file, Article 138 Paragraph 3 GBO. These regulations will become important in the transfer phase.
5. Inspection of the files and data recall, Article 139 GBO
According to Article 139 Paragraph 1 GBO, inspection of the electronic file (elektronische Grundakte) can also take place at another Land Registry. The Land Registry at which the inspection is requested decides on the permission of the inspection, Article 139 Paragraph 2 GBO. It is the ratio legis to spare citizens from the inconvenience of long distance.
6. Electronic decisions, Article 140 GBO
If the file (Grundakte) is managed electronically, the decisions (interim provision or refusal) can also be issued in electronic form, Article 140 Paragraph 1 GBO. These decisions are then to be provided with a qualified advanced signature, Article 140 Paragraph 1 Clause 2 GBO.
III. Changes with regard to legal fees
Since October 1, 2009, new fees apply to the recall of data from the land register. The prior regulation of these fees in Article 133 Paragraph 8 GBO was cancelled. The new fees are now in the Administration of Justice Court Fee Rules (JVKostO) (download http://www.gesetze-im- internet.de/jvkosto/art_iianlage_29.html). The numbers 700, 701 and 702 of the tariff of fees are relevant to the JVKostO. The fee for the establishment of the procedure was completely cancelled and/or only 50 Euros for certain participants (No. 700 JVKostO). This fee also only occurs in the federal state in which the initial establishment takes place. The monthly base fee has also now been dispensed with. The recall of data from the land register now costs 8 Euros in every case; see No. 701 JVKostO, whereby the prior privilege of subsequent recall (2.50 Euros) was cancelled. The recall of data from the electronic file (elektronische Grundakte) costs 1.50 Euros, cf. No. 702 JVKostO.