KG Berlin; 2022-09-22; 1 W 348/22
Decision by national courts in the field of European Union law — ECLI:DE:KG:2022:0922.1W348.22.00
Date: 2022-09-22
Subject matter: Judicial cooperation in civil matters
Origin: Germany

82022DE0922(51)_ENG_SUMJURE
JURE summary
JURE summary
The order relates to an appeal against the refusal of registration in the land register, brought before the Kammergericht Berlin (hereinafter ‘the Court of First Instance’).
The alleged owner of a residential property in Berlin (hereinafter ‘the plaintiff’) applied to the Grundbuchamt (hereinafter ‘the land registry office') to be registered as the sole owner of the property. The Land Registry Office refused it.
Following the plaintiff’s appeal, the Court of First Instance held that, pursuant to Article 21(1) of Regulation (EU) No 650/2012 (1), the legal succession was governed by Italian law because the registered owner of the property (hereinafter 'the testator') had his habitual residence in Italy at the time of his death. Under Italian law, upon the death of the testator, the property can be transferred from the testator to the legatee without the need for acceptance. In the case of several heirs, the testator may divide the property into several items with effect in rem. In such a case, the ownership of the individual property passes directly to the persons designated as heirs without a community of heirs having been established beforehand.
The plaintiff submitted a European Certificate of Succession, according to which he inherited the ownership of the property upon the death of the testator. According to the Court of First Instance, the European Certificate of Succession is sufficient evidence that the plaintiff became the sole owner of the property, as confirmed by Article 63 and Article 69(2) of Regulation (EU) No 650/2012.
Although the direct transfer of ownership of an individual item of the estate to one of several heirs without a legal settlement of the community of heirs is unknown under German law, the recognition of the in rem effect of the European Certificate of Succession cannot be refused by the Member States on the ground that the legal system of the State in which the property is located does not recognise the institution of succession with direct in rem effect.
The Court of First Instance annulled the decision of the land registry office and ordered it to record the plaintiff as sole owner in the land register by way of correction pursuant to the GBO (2).
(1) 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.
(2) Grundbuchordnung (Land Register Code).