Following a legally valid compulsory entry in the land register, the affected owner cannot demand a change to the land register. Such a right arises neither from the regulation implementing the Land Register Ordinance nor from Article 17(1)(a) GDPR, and cannot be derived directly from the Constitution either.
The Federal Court of Justice (BGH) had to decide on the appeal on points of law filed by the owner of several condominium units, who asserted a claim for the re-registration of the land register. The land register contained entries for each unit, including a notice of compulsory auction, a general prohibition on disposal pursuant to Section 21 Paragraph 2 No. 2 of the German Insolvency Code (InsO), a notice of the commencement of insolvency proceedings against her assets, and a lien and a security mortgage. After the compulsory entries were deleted, the owner applied to the land registry office to create new condominium register entries that would no longer contain the deleted entries. She considered the deleted entries to be discriminatory and detrimental to her creditworthiness.
The local court, acting as the land registry office, rejected the application. The owner's appeal to the Higher Regional Court was unsuccessful, as was the subsequent appeal on points of law decided by the Federal Court of Justice.
Court decision
The ruling of the Federal Court of Justice (BGH v. September 21, 2023 – V ZB 17/22Consequently, a deletion of the compulsory entry in the sense of its removal is not possible from the outset, because entries that are no longer valid are not removed from the land register, but merely "redacted" and marked with a deletion note. For this reason, the owner's application is not aimed at a "true" deletion, but at the creation of new apartment land register folios from which the deleted entries are no longer visible.
Such a claim does not arise from Section 28 of the German Land Register Ordinance (GBV), as the apartment land register entries have neither become unwieldy nor would they be significantly simplified by a re-registration. A corresponding right to re-registration cannot be derived from a constitutionally compliant interpretation either. According to its clear wording, the provision contains no obligation to re-register a land register entry after the deletion of a lawfully obtained compulsory entry. The long-standing, unanimous rejection of such a claim in the case law of the Higher Regional Courts has not prompted the legislature to change the legal situation. Accordingly, an analogous application of the provision is also out of the question, as there is no regulatory gap.
Article 17(1)(a) GDPR also does not establish a right to a transfer of ownership. The provision does not apply according to the exclusion clause of Article 17(3)(b) GDPR, as the storage and processing of personal data in the land register is necessary for the performance of a task carried out in the public interest.
Granting third parties access to the land register does constitute an infringement of the right to informational self-determination of those affected by the land register inspection, a right protected by Article 2 Paragraph 1 in conjunction with Article 1 Paragraph 1 of the Basic Law. However, this infringement is constitutionally justified. The principle of proportionality is upheld in the legal regulation. Furthermore, there is a significant public interest in the proper functioning of the land register. It fulfills the function of providing reliable information about the current and past legal relationships concerning the property.
It is impractical to require that a new land register entry be created and the old one closed for every deleted compulsory entry upon request. The associated workload, given the large number of such deletion processes, would severely disrupt the functionality of the land registry offices. This would not be offset by any significant benefit to the affected owner, as they can inspect the closed land register entry upon demonstrating a legitimate interest. Article 14 Paragraph 1 of the Basic Law (GG) and Article 3 Paragraph 1 of the Basic Law (GG) also do not grant a right to the re-registration of land register entries after the deletion of a compulsory entry.
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