Tenancy and property law: Caution with resolutory conditional easements – OLG Munich confirms high evidential hurdles

Background: Land register correction and evidential obligations

Pursuant to § 29 GBO, the proof of the inaccuracy of the land register for a land register correction claim pursuant to § 22 GBO must be provided by public or publicly certified documents.

The land register can also become inaccurate when the registered right was granted subject to a condition and has extinguished as a result of the occurrence of the condition.

If a correction consent (§ 19 GBO) is not available, only proof of inaccuracy (§ 29 GBO) comes into consideration. High requirements are to be placed on this proof, as the OLG Munich once again confirmed in its decision. No official investigation takes place and all possibilities that could argue against the accuracy of the existing entry must be comprehensively eliminated by public or publicly certified documents.

Decision of the OLG Munich: Strict requirements for proof

Such public or publicly certified documents are, however, not available in most cases.

Practical case: Resolutory conditional right of way on foot and by vehicle

In the case decided by the OLG Munich involving a resolutory conditional right of way on foot and by vehicle, the property owner also failed to prove by public documents that the dominant property had in the meantime its own access via a public road, even though this was actually the case.

Significance for tenant easements

This decision is also of relevance for the tenant easements frequently encountered in tenancy law.

There too, proof of the occurrence of a resolutory condition (e.g. payment default, termination of the tenancy) provided for in accordance with the model of the Association of German Pfandbrief Banks would in most cases hardly be possible by means of public documents. In connection with tenant easements, it is therefore advisable from the landlord’s perspective to already obligate the tenant at the time of granting the easement to deposit a cancellation consent in trust, in order to avoid the proof of the occurrence of a resolutory condition that would otherwise not be achievable by public or publicly certified documents at a later stage.

Proof of payment default, the termination or cancellation of the lease agreement or the occurrence of any other resolutory condition will hardly be possible by public documents.

Recommendation for landlords

The cooperation of the tenant is therefore absolutely necessary and should be anticipated through the deposit of the cancellation consent. This is moreover increasingly being required by lending banks as land charge creditors and is therefore already advisable from a financing perspective.

Reference: OLG Munich, Decision of 07.10.2016 – 34 Wx 256/16