Hanseatisches Oberlandesgericht in Bremen; 2020-04-16; 3 W 9/20
Decision by national courts in the field of European Union law — ECLI:DE:OLGHB:2020:1604.3W09.20.00
Date: 2020-04-16
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82020DE0416(51)_ENG_SUMJURE
JURE summary
JURE summary
The Hanseatisches Oberlandesgericht in Bremen (hereinafter ‘the Court of Appeal’) decided a case concerning the applicable law regarding the disposition of a plot of land situated in Germany which was co-owned by the deceased having her habitual residence in the United Kingdom.
Participants 1–4) acquired a plot of land situated in Germany based on a notarial purchase agreement from 25 October 2019. Participant 5), a British citizen, died on 14 March 2019, i.e. she was not alive upon making the purchase agreement in the form of a notary deed. For the purposes of making the deed, one of the co-owners made representations for participant 5) as her representative without having a power-of-attorney.
The High Court of Justice of England and Wales appointed Mr Z. to be the official ‘administrator’ of the deceased’s estate. Subsequently, Mr Z. made a declaration, which was certified by a notary, approving the representations made by the representative without the power-of-attorney on 25 October.
Participants 1–5) (hereinafter the ‘participants’) applied for the registration of the respective plot of land with the Cadastre Registry at the Amtsgericht Bremerhaven (hereinafter ‘the Court of First Instance’). The Court of First Instance refused to make the entry. The participants lodged an appeal against the decision. The Court of First Instance referred the appeal to the Court of Appeal for a decision.
Article 104 of the German Civil Code BGB (1) provides that only a person having legal capacity and personality may make declarations of will. As participant 5) was no longer alive upon the notarial certification of the agreement, the deceased could not make any representations.
Under German law, the assets of a deceased pass over to the heirs upon his/her death, and only the heirs may deal with the estate but not an ‘administrator’ appointed in England. According to Article 21 of the Succession Regulation, the applicable law for succession regarding a co-owner with her last habitual residence in England was English law. However, English law, in accordance with Article 34 of the Succession Regulation, refers back to German law to be the applicable law under the principle of lex rei sitae.
According to the Court of Appeal, based on the respective cross-reference, the applicable law for the succession proceedings regarding a plot of land situated in Germany co-owned by a British citizen was German law, having the effect that disposition rights could be held solely by heirs established under the German inheritance law and not by an ‘administrator’ appointed in England, as this capacity is unknown in German law.
Having regard to the above reasons, the Court of Appeal dismissed the appeal of the participants.
(1)   Bürgerliches Gesetzbuch (German Civil Code).
(2)   Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession.