No registration of a land charge in favour of a legal entity which has ceased to exist as a result of a merger – OLG Düsseldorf I-3 Wx 125/20


In a recent decision(OLG Düsseldorf, decision v. 12.08.2020, ref.: 3 Wx 125/20), the OLG Düsseldorf had to deal with the question whether a land charge in favour of a legal entity that no longer exists (due to the merger process) is registrable.
The judgment was based on the following facts:
On 27 May 2020, the contracting parties concluded a notarised real estate purchase contract, which also contained a financing power of attorney. Furthermore, the contracting parties created a land charge in favour of the financing bank on the same day. The beneficiaries thereupon apply for the registration of the land charge and, following in rank, a resolutive conditional priority notice of conveyance. However, the creditor of the land charge had already been merged with Deutsche Bank AG as the acquiring legal entity on 10 May 2020. This conversion was also entered in the commercial register. The land registry then registered the priority notice of conveyance, but rejected the application for registration of the land charge.
The court indisputably found that the company designated as creditor of the land charge had already ceased to exist pursuant to § 20 para. 1 no. 2 sentence 1 no. 1 UmwG as a result of the merger. However, it was unclear whether the application for registration could not be interpreted to the effect that the creditor of the land charge was now the acquiring legal entity, i.e. Deutsche Bank AG. For this, an interpretation of the land register declaration would have to lead to a doubtless and unambiguous result. However, the court denied this in the present case. The acquiring legal entity also has three other branches that can also conclude financing transactions. In this respect, it was unclear whether the contracting parties would have concluded the contract with the acquiring legal entity or one of the three branches if they had been aware of the legal situation.
According to the court, a reinterpretation according to §140 BGB was also not appropriate, since the legal transaction was not indefinite in content, but only the designation of the creditor of the security right over real property was incorrect. Finally, the court ruled out a derivation from a universal succession directly as well as indirectly.

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