Property
November 24, 2009 | 75,00 EUR | answered by Dr. Dr. Danjel-Philippe Newerla
Dear Sir or Madam,
Since 2003, I have been married without a prenuptial agreement. In the marriage, my husband, among other things, built a multi-family house for commercial vacation rental in 2005, and he is the owner of this property. Now I would also like to become the owner of this property, to which my husband agrees. However, for tax reasons, this can only happen after 10 years. My question now is whether there can be a contract, e.g. a preliminary contract, regarding the regulation of this matter, for example, that Mrs. ... will also become the owner in 2015, or similar. Does this need to be notarized? I am particularly interested in how this preliminary contract could affect a divorce or an inheritance matter (my husband has a daughter from a previous relationship), or in the event that my husband could sell the house without consent prior to a divorce, etc. Thank you very much!
Dear advice seeker,
First of all, thank you for your inquiry!
Taking into account the information you provided, I am happy to answer your questions as follows:
Regarding 1.) My question now is whether there can be a contract, for example a preliminary contract, regarding the regulation of this matter, such as Mrs. ... becoming the owner in 2015 or similar. Does this need to be notarized?
A contract regulating the transfer of the property in 2015 is generally possible and not uncommon in practice. Such a contract would indeed need to be notarized. This is because, according to the law (§ 311b BGB), contracts concerning the transfer of real estate require the notarial form, just like in the case of a real estate purchase contract.
My law firm would be happy to assist you in drafting a legally secure contract. If you are interested, please feel free to contact me at the email address provided below so that I can make you a non-binding offer. In the event of engagement, I would credit you the full initial consultation fee.
Regarding 2.) I am also particularly interested in how this preliminary contract could affect a divorce or inheritance matter (my husband has a daughter from a previous relationship), or in the event that my husband could sell the house prior to a divorce without consent, etc.
In this case, you would not have a claim against the purchaser of the property for transfer of ownership. This is because a contract only binds the parties to the contract, that is you and your husband. The contract would generally not have any effect on third parties, such as potential heirs.
However, if your husband were to sell the house prior to a divorce without your consent, and this situation is not addressed in the preliminary contract, he would be liable to you for damages.
To address these issues commonly arising in real estate contracts, the legislature has regulated the so-called "Auflassungsvormerkung" in the German Civil Code (BGB).
To secure this right of first refusal, your husband could have an "Auflassungsvormerkung" entered in the relevant land register. This would mean that in the event of the property being sold, you could generally approach the purchaser and demand a correction of the land register to your name.
A disposition contrary to the entry (by your husband, in this case) would generally be ineffective against the entitled party (you).
I hope that my explanations have been helpful to you. Please feel free to contact me through the follow-up option on this portal or via my email address.
Finally, I would like to point out the following: The legal advice I provide is based solely on the information you have provided. My response is only a preliminary legal assessment and cannot replace a comprehensive examination of the situation. Adding or omitting relevant information can lead to a completely different legal assessment.
I wish you a pleasant Tuesday afternoon!
Kind regards,
Dipl.-Jur. Danjel-Philippe Newerla, Attorney
Heilsbergerstr. 16
27580 Bremerhaven
kanzlei.newerla@web.de
Tel. 0471/3088132
Fax. 0471/57774
