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WHAT DOES A REAL BURDEN REGISTERED IN THE LAND REGISTER MEAN?
The term real burden (Reallast) is, along with many other technical terms, part of the common vocabulary of the property trade. In a property sale it can become an important pillar of the purchase contract for both sellers and buyers.
THE MEANING OF A REAL BURDEN FOR PROPERTIES
In practice it is often used for agricultural plots or properties. A real burden describes the right of a person to receive recurring performances under certain circumstances. Unlike a land charge or a mortgage, these performances need not be financial; on the contrary, in most cases they consist of goods and services.
EXAMPLES OF A REAL BURDEN
An example of a real burden could be a property sale in which a piece of woodland is acquired in addition to buildings. The burden itself could then be a monthly or annual delivery of wood. Instead of wood, other examples could involve a delivery of grain, potatoes or similar things.
THE LEGAL BASIS
The legal basis for the real burden can be found in the German Civil Code (BGB) and is defined in more detail in Sections 1105 to 1112. Under German law it falls under property law (Sachenrecht), the area of law governing legal relationships concerning physical objects. In addition to physical objects, property law also covers movable things, plots of land and rights equivalent to land.
CREATING A REAL BURDEN
A real burden can only become effective in a property sale if the owner and the beneficiary agree to it. It then becomes part of the written purchase contract and is also recorded in the land register. Both entries require the services of a notary. It can be agreed that the real burden is transferable or heritable under certain circumstances. As a rule, unless otherwise agreed, the owner of the plot is personally liable for the real burden.
In the event of non-performance, the beneficiary can also enforce his claims by compulsory enforcement. If such enforcement does not sufficiently satisfy the outstanding claim, expropriation and a foreclosure auction of the plot may ultimately follow. The beneficiary therefore has a very strong position to enforce his claims.
A REAL BURDEN CAN BE CHANGED
Under Sections 877 and 873 BGB, the content of a real burden can be changed. This means that the beneficiary's claims can be both reduced and increased. In most cases the real burden lasts until the death of the beneficiary.
However, a real burden can also be cancelled completely. This can only be done by a unilateral declaration of the beneficiary. The legal basis for cancellation is set out in Section 875 BGB. For a cancellation to take legal effect, deletion from the land register is mandatory.
THE REAL BURDEN IN PRACTICE
In earlier times, real burdens were very often agreed in connection with the retirement right of farmers (Altenteilsrecht) and with the handing over, inheritance or sale of agricultural businesses. The Altenteilsrecht is the transfer of an owner's, usually built-on, plot during his lifetime. As a kind of consideration for receiving the farm and land, the new user guarantees the former owner that he may continue to live in the property and will be cared for. In other cases, however, the real burden can also apply to privately used properties.
DISCUSS THE EXACT TERMS WITH AN EXPERT BEFORE A PROPERTY SALE
Anyone about to sell or buy a property where a real burden is to become part of the purchase contract – whether as seller or buyer – is well advised to discuss the terms with a lawyer and notary and to have them write down the exact content. Even small mistakes or incorrect wording in a purchase contract could lead to unwanted consequences that cannot be reversed afterwards. An expert should be consulted especially when an agricultural property is being sold.