OGH on the justification of the reservation right of ownership

Nov 3, 2021 Benn-Ibler Rechtsanwälte

In the present case, the Supreme Court (Oberster Gerichtshof, OGH) dealt with the question of whether, in proceedings for justification (Sections 40 et sqq. of the Land Register Act - Grundbuchsgesetz, GBG), a missing declaration of registration or a missing examination of aspects relating to the land transfer authority may be retrospectively taken up by the court.

In the case at hand, the applicants sought the reservation of their ownership rights to a property. This was granted. The declaration of registration in the purchase contract stated that "on the basis of this contract, the reservation of the incorporation of the ownership right [...] can be registered on the property [...]". Later they applied for the annotation of the justification and the incorporation of their property right. The required certificates from the land transfer authorities were only submitted at the same time as the application for justification.

The court of first instance approved the incorporation of the property right. The insolvency administrator of the original owner finally appealed against this. The OGH now had to examine whether the incorporation was admissible:

The OGH noted that the applicants had originally only explicitly requested the registration of their property right, but not its incorporation.

Therefore, the subject of the examination is limited to the necessary prerequisites for the registration of the reservation. The court of first instance was therefore only able to deal with the general requirements for entry in the land register (Secs. 26, 27 GBG), but not with the specific requirements. The decision thus only acquired formal and substantive legal force with regard to the prerequisites for the reservation (prenotation). Furthermore, the Land Registry Court was not bound by its earlier decision.

The special requirement of the declaration of registration for the unconditional acquisition of rights can and must therefore be examined for justification in the proceedings. In the present case, it was not clearly recognisable to which type of entry (reservation or incorporation) the declaration of registration referred. Therefore, there was no suitable justification in the meaning of Sec. 41 GBG, which is why the applicants' request for justification of the reservation had to be rejected.

OGH 5 Ob 78/21p (12.07.2021)