Changed Legal Situation from May due to EnEV 2014 (Energy Savings-Regulation 2014)
The new Energy SavingsRegulation (EnEV) comes into force as of May 1, 2014, which should primarily implement further European legal requirements for new buildings. However, the new version also has significant implications for the sale and ongoing management of existing buildings. Here, reference should be made to the obligation to present and hand over the energy perfor mance certificate upon sale or lease, the mandatory disclosure of data from energy performance certifi cates when marketing in commercial media, and the tightening of mod ernization obligations. Infringement of any of these obligations may con stitute an administrative offence. In contrast, the revision of the energy performance certificate itself has no impact on existing energy per formance certificates. These remain valid for ten years from the date of issuance, unless a recalculation as if for a new building is required by material constructional changes. obligAtion to pRESEnt And hAnd oVER upon SAlE oR lEASE Until now, an obligation to present existed only if the purchaser or pros pective tenant requested the presen tation of the energy performance certificate. If the seller or landlord did not present the certificate, it could be punished as an administrative offence. Upon the sale of an existing building, it was also customary to include in the purchase agreement an express waiver of the presentation obligation and thus do away with the risk of an adminis trative offence. This waiver option no longer exists. Due to the revision of Section 16 Para. 2 of the EnEV, the energy performance certificate, or a copy, must now be handed over or be notified by being displayed or laid out at the pro perty. Even without an inspection, the original or a copy must be presented promptly, at least upon the buyer’s request. Upon the conclusion of a purchase contract, the energy performance certificate (or a copy) must be provided immediately to the buyer. These provisions apply equally where the property is rented. Both the deliberate or reckless breach of the obligation to present the certificate in case of an inspection or upon request, as well as the deliberate or reckless breach of the duty to transfer, are con sidered administrative offences. Each may be pun ished with a fine of up to EUR 15,000.00. The EnEV provides specific exceptions to this rule only for small buildings (i.e. those with less than 50 square meters of usable space) and monuments. No obligation exists in respect of demolition proper ties either as long as they are no longer being heated. mAndAtoRy diScloSuRE FoR REAl EStAtE AdS Another new introduction is the obligation of the seller, under Section 16a EnEV, to ensure that certain information about the energy performance certificate is disclosed in real estate ads in commercial media (printed or electronic). However, this applies only if an energy performance certificate exists at the time. For energy performance certificates issued after Sep tember 30, 2007, the required information includes that information which can be found on the certifi cate, depending on the type of certificate. Accordingly, new energy performance certificates do not need to be specially applied for in the case of advertisements. Here again, deliberate or reckless breaches are con sidered administrative offences, which may incur a fine of up to EUR 15,000.00. tightEning oF thE obligAtion to modERnizE The retrofit requirements listed in Section 10 EnEV for existing buildings have been tightened even fur ther. On the one hand, from 2015, boilers installed before January 1, 1985, or as soon as they are older than thirty years, may no longer be used and must be replaced. Previously, the cutoff date for installa tion was October 1, 1978. The exceptions for certain installations remain unchanged (low temperature and condensing boilers and heating plants with a nominal capacity of less than four or more than 400kilowatts).In addition, it has been clarified that the insula tion requirement for accessible ceilings of heated rooms applies only to on the top floor ceiling to the attic. For the technical requirements to be met, reference is made to specific DIN standards. The cutoff date for proper insulation is December 31, 2015. Both breaches of either of these two retrofit obligations or of the existing insulation require ments for pipes and heating fittings in unheated rooms have in general been redesignated as misdemeanors, punishable by a fine of up to EUR 50,000.00. outlook This was certainly not the last change or tighte ningup of the EnEV. But the obligations intro duced with this amendment are already enough to keep existing property owners in suspense and cause considerable expenseThe issuance of an additional enforceable copy by notaries The Law on Transfer of Tasks in the Field of Voluntary Jurisdiction to Notaries of June 26, 2013 (Federal Law Gazette I 2013, p. 1800) has re vised Section 797 Para. 3 ZPO (Code of Civil Procedure) with effect from September 1, 2013 to the effect that the decision on issuing an additional enforceable copy of a notarial deed is made by the notary holding the document in custody. contEnt oF thE REgulAtion Firstly, it should be clarified what is meant by issuance of an additional enforceable copy of a deed within the meaning of Section 733 ZPO. Specifically, this occurs only when several copies of one and the same title, and hence in relation to the same procedural claim, exist or can be used simultaneously in legal relations. However, an additional enforceable copy does not exist if the copy which was issued first is retur ned or if there are several titles to the same claim. As a result of the new regulation, after examining the existence of the condi tions for the issuance of an enforceable copy, the competent notary no longer needs a court decision. In that regard, the creditor is spared a detour through the courts. The decision of the competent no tary is subject to the requirements of Section 733 ZPO, as in the past. Thus, the creditor has to show a right to the issuance of the enforceable copy, and also an interest in a reissued enforceable copy. Thus, a validly exi sting, enforceable title with enforcea ble content is required. gelena yufa Associate, Frankfurt T +49 69 7941 1027 gyufa@mayerbrown.com6 Real Estate | Recent Developments and Decisions | Spring 2014 The creditor’s interest in the issuance of an add itional copy must also outweigh the debtor’s in terest in protection against a duplicate claim. That is the case, for example, if the creditor has lost the enforceable copy or if it is not clear that the creditor received the enforceable copy at all. A creditor’s in terest is further deemed to exist if the creditor wishes to enforce against various assets of the debtor at the same time, or if a majority of creditors or debtors exists. Under Section 733 Para. 1 ZPO, a debtor’s hearing shall always be offered by the notary, unless the situation is beyond doubt or the hearing appears impracticable in case of particular urgency. In the latter case, the creditor’s urgent interest shall be set out separately. The issuance of an additional enforceable copy by notaries should be covered by previously applicable Section 133 KostO (Fee Regulation) according to the substantiation of the law. However, the respective fee provision is missing in the recently modernized cost law, so that no additional fee is incurred due to the concluding enumeration character of German Rules on Court and Notary Fees (Gerichts und Notar kostengesetz). While Nr. 18001 cost index of German Rules on Court and Notary Fees imposes 20.00 EUR fee for the courts carrying out this activity, notaries receive 0,5 fee only for issuance of the enforceable copy when reviewing legal succession or occurrence of a fact. The issuance of an additional enforceable copy of the deed is not mentioned under this provision. Where no additional enforceable copy is issued by a notary, the creditor has available the legal remedy of an appeal under Sections 54 BeurkG (Law on Notarial Acts), 58 ff. FamFG (Family Proceedings Act). The debtor may, on the other hand, present his objections as to the admissibility of the enforcement clause by means of the clause reminder under Section 732 ZPO. outlook The Law on the Transfer of Tasks in the Field of Voluntary Jurisdiction to Notaries ultimately led only to a selective easing of the strain on the courts. There is consensus in the literature that this has not caused a revolution in the distribution of responsibilities. The regulation on issuing an additional enforceable copy by notaries, is at the same time to be welcomed on principle, because there is no doubt that this task can be performed by notaries just as well as it has been by regionally competent district courts in the past. It remains to be seen whether in the future newer efforts are made by the legislature to delegate further judicial duties to the notaries.Written form and change of legal form for the tenant BGH (German Federal Court of Justice), ruling dated December 11, 2013 – XII ZR 137/12 On the written form for a contractual change of tenant during the term of a lease agreement FActS The defendant rented a commer cial property in L. to the tenant, N. GmbH, on August 25, 1995 to operate a transport company. According to Item 2 No. 1 of the lease agreement, a fixed term of 15 years was agreed for the lease agreement, with a fiveyear extension option. In January 1998, N. GmbH changed its name to J. GmbH. Later, J. GmbH concluded a „purchase and transfer agreement for an equity interest“ with the plaintiff’s legal predecessor. In this agreement, the contractual parties agreed that the purchaser would enter in seller’s stead into all of the rights and obligations from the contracts listed in the annex attached to the contract, which inclu ded a table listing the rented proper ties, the locations, landlords and in formation on the rent to be paid. This included the following information: „Location: L.; landlord: G GbR; rent 163,608... accumulated 1,963,296“. The plaintiff requests that the court find that the rental relationship is for an indefinite period due to the written form not being upheld. contEnt And SubjEct oF thE dEciSion The courts upheld the claim in all instances. The German Supreme Court noted that the plaintiff did not become a party to the lease agreement on grounds of universal succession. There is neither a merger agreement nor a transfer of assets nor a transfer of dr. jörg michael lang Partner, Frankfurt T +49 69 7941 1761 jlang@mayerbrown.com mayer brown 9 contract according to Section 25 of the HGB (Com mercial Code). However, the plaintiff acquired all of the individual assets via the purchase and transfer agreement. It also entered into the lease agreement. However, the German Supreme Court is of the opinion that this did not uphold the requirement for the written form for the lease agreement. The lease agreement is deemed concluded for an indefinite period. If the contractual parties subsequently reach an agreement in which material components of the contract are to be changed, according to current legislation by the German Supreme Court, this must refer to the original agreement in a sufficiently clear manner to uphold the requirement for the written form in Section 550 Sentence 1 of the BGB (Civil Code), list the changed regulations, and show that the remainder of the provisions of the original con tract are to remain in force. The German Supreme Court has now also confirmed these principles for the event that an agreement is reached on the change of parties to a lease agreement, as this information is a material contractual condition which is covered by the requirement for the written form. In the German Supreme Court’s view, this was not the case here. The table attached to the purchase and transfer agreement for the contractual relationships to be taken over did not allow the property affected to be clearly determined due to the lack of a con crete place name. In addition, the German Supreme Court admonishes that the original tenant N. GmbH was not named. The fact that J. GmbH, which con cluded the purchase and transfer agreement could be seen to be its legal successor in the commercial register does not rectify this defect. The date of the lease agreement also could not be derived from the annex. Finally, there was also a difference in the rent included in the list to the rent stated in the lease agreement. impAct on dAy-to-dAy pRActicE The decision shows the importance of the require ment for the written form for commercial lease agreements in connection with a change of parties to the lease agreement. This is possible in various ways. The most frequent and simplest form in practice is that either the landlord or the tenant is replaced by a third party. If the parties to the lease agreement subsequently reach an agreement which changes material components of the contract, in order to uphold the requirement for the written form in Section 550 Sentence 1 of the BGB, this must sufficiently clearly refer to the original agree ment, list the changed regulations and show that the other provisions of the original contract are to remain in force. This also applies to an agreement on a change to the contractual parties, as stating the parties to the lease agreement is one of the mate rial contractual conditions that are covered by the requirement for the written form set out in Section 550 Sentence 1 of the BGB. Contractually changing a tenant in a lease agreement, which requires the written form set out in Section 550 of the BGB as a result of its term, thus also requires that the written form is upheld if the term is to remain the same. In order to uphold the written form, the change of tenant must be documented in such a way that the contractual position of the new tenant results in connection with the lease agreement concluded between the previous tenant and the landlord. This contract transfer can be concluded as a threeparty contract or as a contract between two participants that is approved by a third participant. If a change of tenant is performed by way of an agreement between the previous tenant and the new tenant, this requires approval from the landlord, which can also take place via a contract implied in fact. This approval and this is a key exception to the require ment for written form can also be concludent, i.e. without a requirement for a specific form, for example via the receipt of rental payments, receipt of a rent guarantee, and addressing invoices for in cidental costs and requests for rent increases to the new tenant. As a result, the German Supreme Court has decided that, in the case of a change of landlord between the former and new landlord, the requi site approval from the tenant does not require the written form according to Section 550 of the BGB (Ruling BGHZ 154, 171 = NZM 2003, 476,478). The German Supreme Court also held that a change of tenant agreed between the landlord and the former tenant does not require a specific form of consent from the new tenant to be effective (Ruling dated April 20, 2005 XII ZR 29/02 NZM 2005, 584, 585). However, these decisions only concerned the requirement for a specific form for the requisite ap proval by a third party to a contract transfer agreed between just two parties. We must differentiate this from the issue of whether the subsequent agree ment on the change of landlord or tenant requires the written form. Even if approval by a third party is possible without requiring a specific form, the subsequent agreement on a change of landlord or tenant must sufficiently clearly refer to the original lease agreement in order to uphold the written form. A change of tenant can also result in the event that a company is purchased. This is possible via an acquisition of all of the individual assets of a company or part of a company (socalled asset deal; see Palandt/Putzo BGB, 73rd Edition 2014, Section 453, margin number 7). The acquiring party does not then become the universal successor for the selling party. Rather, managing the purchase of a company requires a separate act of transfer for each individual asset that is to be transferred to the acquiring party. This act must be geared to the relevant material provisions. This is why, in an asset deal, the acquiring party does not enter by way of universal succession into contractual relationships in which the selling party is authorised and obliged, and which are cove red by the purchase of the company. Instead, these agreements must first be transferred to the acquiring party in the requisite form in order for said party to become a contracting party. Then the above princip les apply. In the case of the purchase of a company by acquiring an equity interest (socalled share deal; see Palandt/ Putzo, loc. cit.), in contrast the acquiring party enters into the existing contractual relationships including lease agreements. In this case no separate transfer of the lease agreements is required. Restructurings under the Restructuring Act constitute an important case in practice. This allows a farreaching transfer of assets via universal succession without approval by the affected creditors. Compliance with written form in case of undefined but determinable begin of lease BGH (German Federal Court of Justice), ruling dated July 24, 2013 – XII ZR 104/12 With its July 24, 2013 decision, the Federal Court of Justice has con firmed its rulings of recent years for a practical interpretation of the written form requirement. With reference to rental start dates it has, based on a new configuration of its rulings, determined that it is suffi cient if the start and end dates of the lease term are noted in a sufficiently clear way in the contract document at the time the contract is entered into (Ruling of February 24, 2010 IX ZR 120/06, NJW 2010, 1516 margin no.11 with further notes). FActS At issue was a lease with the following provisions: “The tenancy, and therefore the obligation to pay the rent, begins with the handover/takeover of the leased property. If the handover/takeover is delayed due to changes requested by the tenant (...) or by failure promptly to submit the plans or documents required for the upgrading of the rental space (...) or through the late payment of the security (...), then the tenancy begins on the day on which the property would have been handed over in the absence of these alteration requests or had the documents or plans, and/or the bank guarantee been made available promptly. If the rent falls into arrears upon the takeover of the rental pro perty, then the tenancy begins with the occurrence of a delay in accepting the property.” Wahrung der Schriftform bei unbestimmtem, aber bestimmbarem Mietbeginn BGH, Urteil vom 24. Juli 2013 – XII ZR 104/12 Mit seinem Urteil vom 24. Juli 2013 hat der Bundesgerichtshof seine Rechtsprechung der letzten Jahre zur praktikablen Auslegung des Schriftformerfordernisses bestätigt. In Bezug auf den Mietbeginn hat er in einer neuen Fallkonstellation an seiner Rechtsprechung, dass es aus reichend sei, wenn sich Beginn und Ende der Mietzeit zum Zeitpunkt des Vertragsschlusses in hinreichend bestimmter Weise aus der Vertrags urkunde ergibt (Urt. v. 24. Februar 2010 IX ZR 120/06, NJW 2010, 1516 Rz. 11 m. w. N), festgehalten. SAchVERhAlt Streitgegenständlich war ein Miet vertrag mit folgenden Bestimmungen: „Das Mietverhältnis und damit die Pflicht zur Zahlung des Mietzinses beginnt mit der Übergabe/Übernahme der Mietsache. Verzögert sich die Übergabe/Über nahme durch Änderungswünsche des Mieters (….) oder durch nicht recht zeitige Vorlage der für den Mietausbau erforderlichen Pläne und Unterlagen (….) oder durch nicht rechtzeitige Leistung der Sicherheit (….), beginnt das Mietverhältnis mit dem Tag, an dem das Objekt ohne diese Änderungs wünsche bzw. bei rechtzeitigem Vor liegen der Unterlagen und Pläne bzw. der Bankbürgschaft übergeben worden wäre. Gerät der Mietzins mit der Über nahme des Mietobjektes in Verzug, so beginnt das Mietverhältnis mit Eintritt des Annahmeverzuges.“ dr. jürgen Streng Partner, Düsseldorf T +49 211 86224 216 jstreng@mayerbrown.commayer brown 13 The lower court (Higher Regional Court of Hamm) had taken the view that the requirement for written form under Sections 550 and 578 BGB [“German Civil Code”] was infringed, as the tenancy may have begun to run from the time of a fictitious transfer. This additional agreement would have allowed the start of the lease to appear unascertainable. In par ticular, a purchaser bound, under Section 566 BGB, by the provisions of the lease, could be faced with considerable practical difficulties in trying to deter mine the date of the start of the lease. It followed that, due to the impossibility of determining the start of the lease the written form requirement had not been met. contEnt And SubjEct oF thE dEciSion In contrast, the Federal Court of Justice explains that the appeal court had placed excessively high demands on the concept of determinability. An abstract description, which makes it possible to determine the rental period, was sufficient. It is sufficient if the facts to which the contracting parties tie the beginning of the contract were determined sufficiently precisely for there to be no remaining doubt about the start of the contract once the contract is implemented. This is the case here. This sufficient certainty of the start of the tenancy was also not called into question by the provisions in the second paragraph concerning the beginning of the rental period. These provisions also made it pos sible for a potential purchaser of the leased property to ascertain when the contract began. The purchaser is able to discern from the contract document in which cases the lease should begin before the actual handover, and it would be apparent to him which point in time should be used for the beginning of the contract instead of actual takeover. This is sufficient to satisfy the requirement for written form. The written form was, in particular, not subject to question simply as a result of the agreement on the contract start date containing terms of interpretation or the finding of whether the circumstances to which the parties had linked the start of the contract had actually occurred. Die Vorinstanz (Oberlandesgericht Hamm) hatte die Ansicht vertreten, dass das Schriftformerfordernis gem. §§ 550, 578 BGB verletzt sei, da das Mietver hältnis möglicherweise ab einem Zeitpunkt einer fiktiven Übergabe zu laufen beginne. Diese zusätzliche Vereinbarung lasse den Beginn des Mietverhältnisses nicht mehr als bestimmbar er scheinen. Insbesondere werde ein Erwerber, der gem. § 566 BGB an die Bestimmungen des Mietvertrages gebunden sei, bei dem Versuch, den Tag des Miet vertragsbeginns festzustellen, möglicherweise vor er hebliche tatsächliche Schwierigkeiten gestellt. Dem entsprechend sei das Schriftformerfordernis mangels Bestimmbarkeit des Vertragsbeginns nicht gewahrt. inhAlt und gEgEnStAnd dER EntSchEidung Demgegenüber führt der Bundesgerichtshof aus, dass das Berufungsgericht zu hohe Anforderungen an den Begriff der Bestimmbarkeit stelle. Eine ab strakte Beschreibung, die es ermögliche, den Miet beginn zu ermitteln, sei ausreichend. Hinreichend sei, dass der Sachverhalt, an den die Vertragspar teien den Vertragsbeginn knüpfen, so genau be stimmt werde, dass bei seiner Verwirklichung kein Zweifel am Vertragsbeginn verbleibe. Dies sei vorlie gend der Fall. Diese hinreichende Bestimmtheit des Mietbeginns werde auch nicht durch Regelungen zum Miet beginn im zweiten Absatz in Frage gestellt. Der Vertragsbeginn sei auch durch diese Regelungen für einen möglichen Erwerber der Mietsache bestimm bar. Der Erwerber kann aus der Vertragsurkunde erkennen, in welchen Fällen der Mietvertrag bereits vor der tatsächlichen Übergabe beginnen sollte, und es sei für ihn ersichtlich, welcher Zeitpunkt für den Vertragsbeginn an die Stelle der tatsächlichen Übergabe treten solle. Dies Genüge, um dem Schrift formerfordernis Genüge zu tun. Die Schriftform sei insbesondere nicht dadurch in Frage gestellt, dass die Vereinbarung über den Vertragsbeginn aus legungsbedürftige Begriffe enthalte oder die Fest stellung, ob die Umstände, an die die Parteien den Vertragsbeginn geknüpft haben, tatsächlich auch eingetreten seien.14 Real Estate | Recent Developments and Decisions | Spring 2014 impAct on dAy-to-dAy pRActicE This ruling by the BGH deserves approval, in parti cular because for reasons of the legal certainty, prac ticality and manageability of leases, no excessively high demands should be linked to the written form requirement. This is because infringements of the written form requirement in practice do not usually concern the protection of a potential purchaser, but rather relate to the desire by one of the parties to the contract to be released early from the tenancy. Accordingly, the lease should contain no impractical requirements or requirements that bypass the legal reality concerning the determination of the start and end of the lease. Thus, for example, when the lease document provides for a renewal option in favor of a party, it is not clear from the document itself whether the option was exercised. The same applies to a longerterm lease, which provides that it becomes effective only upon the occurrence of a future condi tion. Should it be necessary to lay down all these facts in the lease document, this would result in high costs in relation to the addenda as well as a high degree of legal uncertainty with regard to compliance with the requirement for written form. For that reason, the BGH should be concurred with that it did not set the requirements too high, and thus ensured that the conclusion of longterm leases is legally secure. Liability of a bank that finances a property fund for deliberate unethical damage to investors by fund managers BGH (German Federal Court of Justice), ruling dated December 3, 2013 – XI ZR 295/12 In recent years, the Federal Court of Justice (BGH) has repeatedly dealt with various issues related to the liability of banks that finance property funds. The case decided in December 2013 concerned, in particular, the question of the in volvement of a financing bank in deliberate unethical prejudice, under Section 826 BGB (German Civil Code), to investors in the fund by a founding shareholder (BGH, judgment of December 3, 2013, case reference XI ZR 295/12), which was denied in this particular case. Facts A bank brought claims against the investors as shareholders in a closed real estate fund in the form of a com pany incorporated under civil law, for the proportional repayment of a loan to the fund. The loan, which was taken out by the fund before the investors joined the fund, served to finance the purchase of property. Due to a fund deficit which had arisen, the bank had terminated the loan for cause. The fund prospectus did not disclose an in terim profit, which had been achieved when the fund acquired the fund’s real estate from a company whose share holders were also the fund’s managers, for a price around 28% higher than the latter had paid to a third party only three days previously. It subsequently transpired that the fund initiators had adopted this approach in several cases and systematically deceived investors. Anja giesen Associate, Düsseldorf T +49 211 86224 240 agiesen@mayerbrown.com Haftung einer das Fondsobjekt finanzierenden Bank bei vorsätzlicher sittenwidrigen Schädigung der Anleger durch Fondsinitiatoren BGH, Urteil vom 3. Dezember 2013 – XI ZR 295/12 In den letzten Jahren hatte sich der Bundesgerichtshof (BGH) wiederholt mit verschiedenen Fragestellungen zur Haftung einer ein Fondsobjekt finanzierenden Bank zu beschäftigen. In dem im Dezember 2013 entschie denen Fall ging es insbesondere um die Frage der Mitwirkung der finan zierenden Bank an einer vorsätzlichen sittenwidrigen Schädigung gemäß § 826 BGB von Fondsanlegern durch einen Gründungsgesellschafter (BGH, Urteil vom 3. Dezember 2013, Akten zeichen XI ZR 295/12), welche im konkreten Fall verneint wurde. SAchVERhAlt Eine Bank nahm die Anleger als Ge sellschafter eines in Form einer Gesell schaft bürgerlichen Rechts betriebenen geschlossenen Immobilienfonds quotal auf Rückzahlung eines dem Fonds ge währten Darlehens in Anspruch. Das Darlehen, welches von dem Fonds aufge nommen wurde, bevor die Anleger dem Fonds beitraten, diente der Finanzierung des Objektankaufs. Aufgrund einer auf getretenen Unterdeckung des Fonds hatte die Bank das Darlehen aus wich tigem Grund gekündigt. Im Fondspro spekt war ein Zwischengewinn nicht aus gewiesen, der dadurch erzielt wurde, dass der Fonds die Fondsimmobilie für einen rund 28 Prozent höheren Kaufpreis von einer Gesellschaft erworben hatte, deren Gesellschafter ebenfalls die Fondsini tiatioren waren, als diese ihrerseits nur drei Tage zuvor von einem Dritten. Es stellte sich im Nachhinein heraus, dass die Fondsinitiatoren in mehreren Fällen nach diesem Muster vorgingen und Anle ger planmäßig täuschten.16 Real Estate | Recent Developments and Decisions | Spring 2014 contEnt And SubjEct oF thE dEciSion The BGH largely upheld the decision of the Zweibru ecken OLG (Higher Regional Court, Zweibruecken), (decision of January 27, 2011 – 7 U 20/11). Initially, the bank was granted a claim against the share holders as being jointly and severally liable for the proportional repayment of the outstanding indebted ness under the loan, pursuant to Sections 128 and 130 HGB (German Commercial Code), by analogy with the principles of flawed accession by share holders. To be examined next were any counterclaims by investors submitted in course of the proceedings. In the absence of any direct contractual relationship, the BGH denied a claim by the bank for damages for breach of duty to inform. The substance of the deci sion lies in the discussion of the question of involve ment in unethical damage and hence a counterclaim under Sections 826 and 830 Para. 1 Sentence 1 and Para. 2 BGB. The concealment of the interim profit in the fund’s prospectus was classed as an erroneous statement and thus as unethical prejudice by the fund managers to investors. One might also regard the granting of real estate financing by the bank as objective assistance, but it was said that the bank lacked the subjective element of intent to do harm. Although it had known the acquisition and disposal prices, so that it must have noticed the discrepancy in the amounts, the bank could not be accused of knowledge of systematic behaviour on the part of the managers nor of concealing the interim profit in the prospectus as it was unaware of the prospectus. Thus the bank was not liable for involvement in the unethical prejudice to the investors. At first glance, the decision seems to contradict a 2009 decision of the BHG (BGH, decision of September 29, 2009 – XI ZR 179/07) in which the Senate concluded that a financing bank was at least involved in unethical prejudice to investors. In principle, the case was similar in nature: share holders in a real estate company incorporated under civil law (investors), the fund manager and the financing bank were arguing over reciprocal claims. In a fund prospectus, investors were led to believe that a subsidiary liability existed, which had not in fact been agreed with the bank. The court found that this constituted a misrepresentation which was crucial to the investors’ decision to par ticipate in the fund, which in principle led to the manager’s obligation to pay compensation due to deliberate unethical prejudice in which the bank had participated. The key difference compared with the decision of 2013 is that because, in the latter case, the financing bank knew of the representation in the fund prospectus – and this representation contradicted its own loan agreements and it had ex pressly pointed this out to the manager – the bank could not agree a subsidiary liability provision to repay the real estate finance loans as represented in the fund prospectus with respect to the per sonal liability of the investors (shareholders in the fund). The bank had, therefore, systematically and knowingly participated in the deception of investors in that, aware of the manager’s inten ded actions, it had gone ahead with funding the real estate, and thereby allowed and intended the deception. The bank’s actions were also not justi fied by its pursuit of its own legitimate interests. Admittedly, the bank was permitted to insist on a direct personal liability but it could not thereby participate in a deception of investors. This means that the bank should either have refused the real estate financing or insisted on an amend ment of the fund’s prospectus. However, the extent to which the bank is affected by a supervisory duty re mains open. In light of the recent decision, the bank is not liable as long as it did not know of the fund’s prospectus or was unaware of a misrepresentation as to the extent of the liability of the investors in the fund. However, where it becomes aware of a state ment in the fund prospectus that contradicts its own contractual documentation, it shall, in light of the 2009 decision by the BGH, in its own interest, have an increased duty to insist on a corresponding correc tion of the prospectus, as otherwise, it shall, where re levant, be liable for corresponding damage or may be subject to such a counterclaim as may oppose its own claim to repayment of the loan. It may seem strange that in a comparison of the decisions a bank which conscientiously keeps itself informed and discusses its customer’s fund prospectus bears a higher risk of liability than a bank which finances a property fund without carrying out any more indepth examination. This is due to the fact that a subjective element is always an intrinsic part of unethical damage, i.e., the knowledge of and intent in relation to – or at least an acceptance of – damage to the investor. impAct on dAy-to-dAy pRActicE If a bank does not finance the investors’ investment, then the bank has no obligation to inform investors, because there is no contractual relationship with the investors. According to the BGH, even in a loan agreement with the fund, no duty to inform investors is incurred. When examining a fund prospectus, if a bank notices misinformation that is likely to influence investors in their decision, it should, in order to avoid liability for involvement in deliberate unethical prejudice, go ahead with the financing only upon presentation of a corrected prospectus (for example, by agreeing a corresponding con dition precedent to drawdown). The case law concerning the liability of a bank financing a property fund for deliberate unethical prejudice to investors shows that it often depends on the individual situation and should in general be treated with caution. Overview Real Estate Transfer Tax Rates The following table provides an over view of the current status of the real estate transfer tax rates in the indivi dual federal states (March 24, 2014). To the extent that specific information and indications regarding a change of the real estate transfer tax rate exist in a state, this was noted accordingly. Changes since the last issue in autumn 2013 are marked in bold.
baden-württemberg 5.0% bavaria 3.5% berlin 6.0% brandenburg 5.0% bremen 5.0% hamburg 4.5% hesse 5.0% (increase to 6.0% planned as from January 1, 2015)* mecklenburg-western pomerania 5.0% lower Saxony 5.0% north Rhine-westphalia 5.0% Rhineland-palatinate 5.0% Saarland 5.5% Saxony 3.5% Saxony-Anhalt 5.0% Schleswig-holstein 6.5% thuringia 5.0%
