Mortgage on a jointly inherited property
May 8, 2013 | 70,00 EUR | answered by Jan Wilking
Three daughters form an inheritance community specified in the will after the father's death (previously undivided inheritance community). In addition to cash assets, the daughters' inheritance includes a property (single-family house). Each heir's share is 1/3 of the total value of the property.
One of the daughters now plans to purchase a condominium and needs a bank loan for this purpose. She wants to use her share of the inheritance in the property as security. The other co-heirs have not been informed of this intention yet, and they have also not been able to exercise their right of first refusal on the sister's share of the property.
What does inheritance law say about this situation? The mortgage would be registered as a partial mortgage in the land register of the inherited property, thereby restricting the property rights of the co-heirs. Additionally, the right of first refusal of the co-heirs would be violated. Am I understanding this correctly?
Dear inquirer,
I am happy to answer your inquiry taking into account the facts you have provided and your input as follows:
You are correct in your assessment: a single daughter cannot dispose of the estate or individual items thereof; therefore, only the community of heirs could place a mortgage on the jointly inherited property, not an individual member of the community of heirs. Although shares in co-ownership of a property can generally be encumbered by fractions (§§ 1008 et seq. BGB) (§ 1114 BGB). However, encumbering joint ownership (as is the case with a community of heirs) is not possible.
The daughter can, however, generally dispose of her share of the inheritance, for example, by selling her share in accordance with §§ 2033 et seq. BGB, although the other members of the community of heirs would have a right of first refusal.
I hope to have provided you with a helpful initial orientation. If you have any uncertainties, please use the free follow-up function.
Please note that without knowledge of all circumstances, I cannot provide a definitive recommendation within the scope of this initial consultation. If you wish for a final assessment of the situation, I recommend contacting a lawyer and discussing the situation with them after reviewing all documents.
Yours sincerely
