Bidding procedure; implementation and issuance of an exclusion order
The judicial officer of the locally competent district court shall decide on the conduct of a bidding procedure and the issuance of an exclusion order.
In individual areas of the legal system, the practical need to create clear conditions can take on such weight that it justifies an encroachment on existing legal positions. An example is the case where someone assumes for a long time that the land he uses belongs to him, but then doubts arise about the ownership situation.
In this case, the law offers the possibility of conducting court proceedings to finally clarify the legal situation for everyone. The central element of this procedure is the so-called bid, by which the owner of the legal position concerned is requested to register it with the court by a certain date. If he fails to do so, he will be excluded by court order. In this way, the way is cleared for the creation of new rights. For example, in the above example case, the long-time user of the land can be registered as the owner in the land register.
The cases in which a bidding procedure can be carried out are exhaustively regulated in the law. In this way, it is ensured that the encroachment on existing rights associated with the issuing of an exclusion order is limited to particularly exceptional cases.
The course of the proceedings in matters relating to an exclusion order is regulated in §§ 433 to 484 of the Act on Proceedings in Family Matters and in Matters of Voluntary Jurisdiction (Gesetz über das Verfahren in Familiensachen und in Angelegenheiten der freiwilligen Gerichtsbarkeit - FamFG). Sections 433 to 441 of the Family Proceedings Act contain general provisions for all proceedings for the issuing of a writ of summons, while sections 442 to 484 of the Family Proceedings Act contain special provisions, each of which covers only certain cases.
The question as to whether and, if so, under what preconditions, a bidding procedure can be carried out, on the other hand, is to be taken from the relevant substantive provisions in each case. Finding these provisions is facilitated by the references contained in sections 442 et seq. of the Family Proceedings Act.
The conditions under which a bidding procedure can be carried out vary depending on the scope of application. They depend to a large extent on how worthy of protection the person is who would benefit from an exclusion order. For example, an heir who is regularly unable to assess conclusively the extent to which the estate is encumbered with liabilities can initiate a bidding out of the creditors of the estate. If, on the other hand, the user of a plot of land wishes to ensure clarity with regard to the ownership situation by means of a bidding procedure, a corresponding application is only admissible if he has already owned the plot of land as belonging to him for 30 years.
A mortgage deed (i.e. e.g. a land charge deed) can also be declared null and void by way of bidding proceedings for the declaration of invalidity of deeds (sections 466 to 484 FamFG) if it has been lost or destroyed.
The individual course of the bidding procedure also varies depending on the area of application. In any case, however, an application is required which is first examined by the court as to its admissibility and - if the result of this examination is positive - is then publicly announced. It then waits to see whether applications are received by the court within the time limit for issuing the order. The court then decides whether to issue an exclusion order.
The procedure is carried out by the Rechtspfleger (judicial officer) of the locally competent Amtsgericht (local court). Which local court this is depends on what the bid relates to in the individual case.
Gesetz über das Verfahren in Familiensachen und in Angelegenheiten der freiwilligen Gerichtsbarkeit (FamFG)
§§ 887, 927, 1104, 1112, 1162, 1170, 1171, 1970 bis 1974 Bürgerliches Gesetzbuch (BGB)
§§ 6, 13, 66, 67 Gesetz über Rechte an eingetragenen Schiffen und Schiffsbauwerken (SchRG)
§§ 13, 66, 67 Gesetz über Rechte an Luftfahrzeugen (LuftFzgG)
§ 110 Gesetz betreffend die privatrechtlichen Verhältnisse der Binnenschifffahrt (Binnenschifffahrtsgesetz - BinSchG)
Pursuant to section 58 (1) and section 63 (1) of the Family Proceedings Act, an appeal against an exclusion order may be lodged within a period of one month from its public service. If the appellant is prevented from complying with the time limit through no fault of his or her own, he or she may be granted restitutio in integrum provided that five years have not already passed since the public service of the exclusion order.
Responsible for editing: Bayerisches Staatsministerium der Justiz
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