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termination of a partnership interest in a GbR

December 7, 2009 | 100,00 EUR | answered by Andreas Scholz

Dear Sir or Madam,

Several years ago, I founded a partnership with other individuals to acquire and rent out a multi-family residential building.

Due to various disputes within our company, I terminated my shareholding on December 31, 2008. The termination was based on the annual financial statement prepared and approved by the company as of December 31, 2007. Based on this statement, my share value after deducting liabilities is approximately €50,000.

According to the provisions of the partnership agreement, a balance sheet must be prepared by the company at the time of a partner's exit, and the partner must be settled based on this balance sheet. Today, the company, represented by its managing director, orally informed me that they intend to use the annual financial statement prepared by them as of December 31, 2008 as the balance sheet for settlement. However, this approved statement, which the company approved a few days ago despite my objection, now shows a nearly halved property value compared to 2007 (approximately €1,440,000 to €765,000), resulting in a payment obligation of approximately €11,000 from my termination. The reduction in the reported property value is justified by the company with a revaluation, even though there have been no negative changes in substance, rental, or other areas in 2008. In my opinion, the reduction was solely made to minimize my payout claim or convert it into a liability.

I believe that the actual property value lies somewhere between the 2007 and 2008 valuations.

I now have the following questions for you to answer, including a justification of your legal opinion:

1. Does the company have the right to settle me based on the property value reported in the 2008 financial statement, or do I have the right to demand payment of the share value based on the 2007 property value (adjusted for the actual depreciation compared to 2008)?
2. Can I effectively revoke my termination to avoid a legal dispute over the amount of the settlement, without requiring the company's approval?

Yours sincerely,

Andreas Scholz

Dear inquirer,

Regarding your questions:

1. Does the company have the right to pay me based on the real estate value indicated in the 2008 annual financial statements, or do I have the right to demand payment from the company based on the real estate value in 2007 (adjusted for the actual depreciation that occurred compared to 2008)?

You are not required to accept specific values. If you disagree with the values set and can provide reasons why the values you represent should be used, you can sue the other shareholders for approval of the balance sheet you have presented, and then for payment of the amount due to you, OLG Hamburg case no. 3 U 30/07. Such action may be appropriate if the values underlying the balance sheet are economically unreasonable. In this regard, case law generally - and in any case where nothing else is contractually agreed - sets the liquidation value as the minimum for the compensation claim, BGH case no. II ZR 295/04.

2. Can I effectively withdraw my termination, for example, to avoid a legal dispute regarding the amount of compensation, without requiring the approval of the company?

No, you cannot, unless the Articles of Association provide for a deadline after which a received termination shall only become effective. In that case, the legal provisions apply. According to these, termination is a unilateral and revocable declaration of intent. It becomes effective upon receipt. Therefore, withdrawal is excluded unless it is accepted by the other shareholders.

I hope this helps. Please feel free to use the follow-up function if needed.

Best regards,

Andreas Scholz, Attorney