Austria: Correction of an entry in the land register on the basis of a legally binding declaration of responsibility

 

Entries in the land register can be corrected upon application if the subsequently incorrect entry does not correctly reflect the actual legal situation. If the inaccuracy of the entry is obvious or proven by public documents, the correction will be made without the requirements otherwise required for such an entry having to be met.

In the present case, the Supreme Court had to deal with reference number 5Ob155/21 with the question of whether documents or resolutions from probate proceedings have sufficient probative value to prove the incorrectness of an entry in the land register in accordance with § 136 GBG.

Specifically, it was requested, on the basis of a legally binding decision on responsibility, to delete highly personal rights (a right of usufruct and a ban on encumbrance and sale) in favor of the deceased in accordance with § 136 GBG.

These rights expire ex lege with the death of the beneficiary, after which the death of the beneficiary means that the off-book legal situation no longer corresponds to the status of the land register.

The court of first instance dismissed the request for correction, since the legally binding decision of the probate court was a public document, but this was not sufficient to prove the death of the person entitled to register.

The court of second instance did not accept the appeal. It declared the appeal to be admissible, since it was questionable whether the content of the resolution on responsibility was suitable for proving the death of a person. The proof of the death of a natural person is provided by the public certificate of death (death certificate) in accordance with Section 57 of the Civil Status Act - the decisions of the probate court can only indirectly indicate the death of the person entitled to book .

The Supreme Court has considered that an inheritance order constitutes an authentic instrument and constitutes full proof of the court decisions recorded therein that were made as a result of the death of a natural person. He presupposes the death, but does not testify to this fact. The circumstance of the death of the person entitled to book arises only indirectly from the document. Thus, the subsequent legal change is not proven by a public document within the meaning of § 136 GBG.

However, the correction according to § 136 GBG can also be made if the subsequently occurring inaccuracy is obvious.

Any initiation of probate proceedings requires official notification of the death of a person or in any case requires that the death must be unequivocally established.

Thus, with the submission of the decision to register, the subsequent inaccuracy of the land register according to § 136 GBG is obvious and in the present case the highly personal rights of the person entitled to register were to be deleted.

  

For further information, please contact:

Petra Walkner , Lawyer

 Zumtobel Kronberger Rechtsanwälte OG, Salzburg

e: walkner@eulaw.at

 t: +43 662 624500

 

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