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Description

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. One 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 legal 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 affected legal position is requested to register it with the court by a certain date. If he fails to do so, he is excluded by court order. In this way, the way is cleared for the establishment of new rights. For example, in the above-mentioned example case, the long-term user of the land can be entered in the land register as the owner.

The cases in which a bidding procedure can be carried out are conclusively regulated in the law. In this way, it is ensured that the encroachment on existing rights associated with the issuance of an exclusion order is limited to particularly exceptional cases.

The course of the proceedings in matters relating to an exclusion order is governed by sections 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 FamFG contain general provisions applicable to all bidding proceedings, while sections 442 to 484 of the FamFG contain special provisions, each of which applies only to specific cases.

Prerequisites

The conditions under which a bidding procedure can be carried out vary depending on the area 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 conclusively assess the extent to which the estate is burdened with liabilities can initiate a bidding procedure for the creditors of the estate. If, on the other hand, the user of a plot of land wants 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 (e.g. a land charge deed) can also be declared invalid by way of the bidding procedure for the declaration of invalidity of deeds (sections 466 to 484 FamFG) if it has been lost or destroyed.

Deadlines

The details of the bidding procedure also vary depending on the area of application. In any case, however, an application is required which is first examined by the court for admissibility and - if the result of this examination is positive - is then published. 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 proceedings are conducted by the Rechtspfleger (judicial officer) of the locally competent Amtsgericht (local court). Which local court this is depends on what the order relates to in the individual case.

Legal bases

• 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)

Remedy

An appeal against an exclusion order may be lodged in accordance with section 58 (1) and section 63 (1) FamFG 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.