§ 10 para 1 sentence 1 No. 7 sentence 2 of the Law on Compensation under the Law on the Settlement of Open Property Issues is compatible with the Basic Law, unless co-heirs may be searchable by their rights with respect to formerly state-managed assets will be excluded, if at least one other co-heir is known and discovered. This, the Stuttgart lawyer specializing in inheritance law Michael Henn, vice president and executive director of the German lawyers, notaries and tax advisers Association for Succession and Family Law Association (DANSEF), based in Stuttgart, the Federal Constitutional Court (FCC) in the 05. August 2010 published decision of 21.07.2010 - 1 BvL held 8 / 07.
stood in East Germany many assets - particularly land - which had not been expropriated, under special administration, which limited the parties in formal preservation of his property rights in its use and disposition powers over the he owns an asset and thus largely in their economic effects of expropriation was to be equated. With the amendment of the Property Act of 14 July 1992 newly inserted § 11a Property Act to repeal the state administration of all affected assets directly to the 31st of law Arranged in December 1992. After that, however many of the formerly state-managed land "in fact abandoned" are because of the respective owners or whose whereabouts are still not known. After 1 December 1994 which entered into force compensation law are those in fact abandoned property the owner can not be ascertained and also after carrying out an array of not proceeding reported to lead to the Compensation Fund, administered by the Federal Office for Central Services and Unresolved Property Issues.
From the Settlement Fund will include compensation under the Compensation Act and the Victims of Nazi Persecution Compensation Act as well as compensation for services not rendered irreversible expropriation. By the amending law of 10 December 2003, in § 10 para 1 sentence 1 sentence 2 No. 7 EntschG finally determines that such property rights are subject to transfer to the Compensation Fund which is not known or not locatable entitled to co-owners or co-heirs. In consequence, the Compensation Fund Member of the owners or heirs in respect of the formerly state-managed asset. Claims not to a refund of the compensation fund out of co-ownership or Miterbenanteils in the event that the excluded holder or his successors would later report yet, knows the law.
the applicant of the case, the complained a nurse's absence, was a third co-heiress to her father, the owner of land in Brandenburg. Her two sisters have made their inheritance rights in time. Once the location of in 1965 to Great Britain spoiled applicant, despite intensive searches could not be determined, concluded from the Federal Office for the Settlement of Open Property Questions, the applicant of their Miterbenanteil to the property and found that this to the Federal Republic of Germany - Compensation Fund - to go. The absence of nurses While the subsequent action resulted in submission of § 10 para 1 sentence 1 sentence 2 No. 7 EntschG by the Federal Administrative Court, which considers the provision was incompatible with article 14 paragraph 1 GG as far as it concerns the rights of co-heirs undiscoverable .
The First Division of the Federal Constitutional Court has ruled that § 10 Abs 1 sentence 1 sentence 2 No. 7 EntschG is compatible with the Basic Law, when such a non-searchable co-heir of his rights with respect to formerly state-managed assets may be excluded if at least one other co-heir is known and discovered, so Henn.
• The decision is essentially based on the following considerations:
A former East German law on the basis of acquired Miterbenstellung entitled to the protection of the fundamental right to property (Article 14 GG). The intervention in this legal position by the provision under § 10 para 1 sentence 1 sentence 2 No. 7 EntschG withdrawal of the legal position of joint heirs undiscoverable sufficient However, the requirements that must be submitted to a content and limits the determination of ownership of an equitable balance of interests. The requirement serves the legitimate public interest objective of creating a de facto being deserted by the elimination of the formerly state-managed assets in the new Lander final ownership structure and thus improve the marketability of land. It thus contributes to a higher law and economic development in the new countries. The legislature was entitled under his start in promoting economic development in the new countries are entitled discretion fact that it is the untraceable and a joint heirs Act restricts the heirs. This can take without the co-heirs undiscoverable only measures the proper administration or Notgeschäftsführung. Also, by appointment of a representative or nurse for only certain measures, such obstacles can not be eliminated with the same speed as by a transfer of the shares in estates to the Compensation Fund, which is regularly engaged in selling the asset.
§ 10 para 1 sentence 1 sentence 2 No. 7 EntschG leads to the excluded co-owners untraceable and not to a disproportionate and unreasonable Load. It should be noted in particular that only those assets are concerned, for some time by the claimant, who has remained untraceable despite exhausting all reasonable investigative means, has not been claimed, although this has passed the opportunity. The elusive heir had here for 13 years the opportunity to seek his heritage. In addition, the initiation of an array procedure is allowed only when the Office has fulfilled his duty to examine the claimant with the means at their disposal. Against this background and in view of the particular situation after the restoration of German unity outweighs the Public interest in the revival of the land transport and economic development. It is not objectionable that the withdrawal is the legal position of joint heirs undiscoverable kompensationslos. After serving on the compensation fund value is not dissipated general taxation purposes, but is beneficial to other individuals associated with the original owners as victims irreparable damage to property in the same camp.
The restriction of property rights is equality of justice (Article 3 para 1 GG) is configured. It is true that in the conduct of redress under the Property Act by restitution (restitution) confiscated assets also arise with untraceable co-heirs who inherit their shares in estates, however, are not subject to levy procedures. That difference in treatment is constitutionally given the wide discretion of the legislature permitted. It is objectively justified and therefore not arbitrary. The legislature could take into account the fact that the actual Herrenlosigkeith for the lifting of the state administration by law 31st December 1992 approached entirely different meaning than usual for reparations under the Property Act.
Neither from Article 14 paragraph 1 GG resulting basic legal position of the other, still-present co-owners of the the decedent is injured. As far as the other co-owners of the Fund will be imposed as a member of the undivided joint ownership, which is not in itself constitute intervention in a legal position assets, especially as the heirs is not in anyway intended to be permanent. The fundamental right of the testator, is not affected because the bequeath at issue in intervention is not his testamentary freedom or his right to his property according to legal rules of family succession is concerned, but solely to the status of the person who has become on this basis, co-heir.
Henn recommended to note this and take in cases of doubt legal advice on claims and referred inter alia to DANSEF the German lawyers, notaries and tax advisers Association for Succession and Family Law Association, http://www.dansef.de/
Photo: Attorney Michael Henn lawyer specializing in inheritance law, labor law specialist
Photo: Attorney Michael Henn lawyer specializing in inheritance law, labor law specialist
The author of this article is available for inquiries please contact:
Michael Henn
lawyer
lawyer specializing in inheritance law
labor law specialist
DANSEF - Vice President and
executive director
Lawyers Dr. Gaupp & Coll.
Theodor-Heuss-Str. 11 70174 Stuttgart
Tel: 0711/30 58 93-0
Fax: 0711/30 58 93-11
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