Last Updated on May 31, 2021 by LawEuro
The Fiscal Code of Germany
4th Subchapter
Enforcement against immovable assets
Section 322
Procedure
(1) Apart from real properties, enforcement against immovable assets shall also apply to the entitlements for which the provisions relating to real properties apply, to the ships registered in the ship register, to the ships under construction and floating docks registered in the ship register or which can be registered in this register, as well as to aircraft registered in the aircraft register or, following deletion in the aircraft register, are still registered in the register for liens on aircraft. The provisions in force for compulsory judicial execution, namely sections 864 to 871 of the Code of Civil Procedure and the Act on Compulsory Sale by Public Auction and Compulsory Receivership, shall apply with respect to the enforcement. In the case of deferral or suspension of implementation, a debt-securing mortgage registered by means of enforcement shall however only then pass to the owner pursuant to section 868 of the Code of Civil Procedure, and a ship’s mortgage or a registered lien on an aircraft shall however only then expire pursuant to section 870a(3) of the Code of Civil Procedure as well as section 99(1) of the Act Governing Rights in Aircraft, where the cancellation of enforcement measures is ordered at the same time.
(2) Section 171 of the Act on Compulsory Sale by Public Auction and Compulsory Receivership shall apply to enforcement against foreign ships; section 106(1) and (2) of the Act Governing Rights in Aircraft as well as sections 171h to 171n of the Act on Compulsory Sale by Public Auction and Compulsory Receivership shall apply to enforcement against foreign aircraft.
(3) The enforcement authority shall submit the creditor’s applications necessary for enforcement against the immovable assets. The enforcement authorities shall confirm in the process that the legal prerequisites for enforcement exist. These matters shall not be subject to the judgement of the enforcement court or the Land registry office. Applications to register a debt-securing mortgage, a ship’s mortgage or a registered lien on an aircraft shall be requests within the meaning of section 38 of the Land Register Code and section 45 of the Code of the Register of Ships.
(4) The enforcement authority should only apply for compulsory sale by public auction or compulsory receivership where it is determined that the monetary amount cannot be recovered through enforcement against the movable assets.
(5) Insofar as the claim to be enforced, in accordance with 10(1) number 3 of the Act on Compulsory Sale by Public Auction and Compulsory Receivership, takes priority over the rights to the real property, a debt-securing mortgage may be registered in the Land Register under the condition precedent that the preferential right ceases.
Section 323
Enforcement against the legal successor
Where a debt-securing mortgage, a ship’s mortgage or a registered lien on an aircraft has been registered pursuant to section 322, a notice of compulsory tolerance shall only then be required for the purposes of a compulsory sale by public auction on the basis of this right if, following registration of this right, there has been a change of ownership. The first sentence shall apply mutatis mutandis to the compulsory receivership of a debt-securing mortgage registered pursuant to section 322.
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