Definition of the term: Real in Law
The term Real has a variety of meanings in the legal context and is used in different settings. Key aspects include property law, tax law issues, as well as the role of real rights. The following analysis examines all facets of the term, with special attention to legal systems and terminology.
Real in Property Law
Definition and Distinction
In the field of property law, Real it is often used to differentiate rights that directly relate to an object (real rights, also known as rights in rem), in contrast to mere rights to receive performance (obligations). The term “real” here derives from the Latin “res” (thing).
Areas of Application
- Ownership: Ownership is the classic real right, which includes comprehensive legal control over a thing (§ 903 BGB).
- Real estate liens: Mortgage and land charge are considered real security rights over land (§§ 1113 et seq. BGB).
- Easements: These include land-related rights of use, especially servitudes (§ 1018 BGB) and limited personal easements (§ 1090 BGB).
- Usufruct: As a comprehensive right to use another’s property, usufruct is also a real right in the sense of property law (§§ 1030 et seq. BGB).
Distinction from the Law of Obligations
In contrast to rights arising from an obligation (e.g., contract), real rights have effect erga omnes against everyone. They grant the holder certain powers over a thing that must be respected by any third party.
Real in Tax Law
Term in the context of real taxes
In tax law, “real” denotes taxes that are linked to an object or a factual situation. Real taxes cover objective tax sources, independent of the personal capacity of the taxpayer.
Significance of the types of real taxes
- Property tax: According to § 3 para. 2 AO, property tax is classified as a real tax because it taxes ownership of real estate.
- Business tax: As a real tax under Art. 106 para. 6 GG, the taxation refers to the business as a whole.
Distinction
Personal taxes (individual taxes) such as income tax, on the other hand, take into account the personal circumstances and characteristics of the taxpayer.
Real rights in international legal systems
Terminology in the European legal area
In German-speaking countries, the term “real” or “real right” corresponds to German property law, in French law as “droits réels”, in English “real rights”. Everywhere, the term refers to rights that have direct effect upon objects.
Content and scope
Real rights are characterized by:
- Publicity (e.g., registration in the land register)
- Absoluteness (effect against everyone)
- Object-related nature
Typical real rights in a European legal comparison are ownership, liens, easements, and usufruct.
Real as the subject of legal transactions
Transfer of real rights
The transfer of real rights to movable property generally occurs through delivery (§ 929 BGB), for real estate through agreement and registration (§ 873 BGB). Real rights can be encumbered or transferred, for example, by the creation of real estate liens, conveyance of property, or granting of easements.
Real in enforcement law and with securities
Attachable object
In enforcement proceedings, the term “real” may refer to direct enforcement against tangible objects or real estate (foreclosure on real property, attachment of movable property).
Real obligations
These are obligations directly connected with the ownership of a thing. Upon acquisition of the thing, these obligations automatically come into effect, as with a building encumbrance or a right to water connection.
Real in inheritance and family law
Physical division
In inheritance law, “physical division” (Realteilung) refers to the division of the estate by physically assigning estate items to the heirs (§ 2042 BGB). In matrimonial property law (family law), a “physical division” can become relevant in the context of equalization of accrued gains if assets are actually divided.
Real in commercial and corporate law
Act of fact
“Acts of fact” (Realakte) refer to actual acts with legal consequences, without a declaration of intent (e.g., delivery of an object as an act of fact).
Real capital and real contribution
In corporate law, the term may be used in connection with real contribution for instance by contributing assets to the company’s assets (contribution in kind, § 5 para. 4 GmbHG).
Distinction and further uses of the term
Real and personal
In law, there is often a distinction between “real” (object-related) and “personal” (person/individual-related), for instance when distinguishing between real and personal obligations.
Terms outside the legal field
Outside the legal field, the term “real” may have further meanings, such as in philosophy as the opposite of “ideal”. For the purposes of the legal dictionary, however, only its object-related use is relevant.
Literature and further references
- Civil Code (BGB)
- Fiscal Code (AO)
- Basic Law (GG)
- Palandt, Civil Code, Commentary
- Tipke/Lang, Tax Law
Summary
The term Real is multifaceted in law and is primarily used to designate object-related rights, taxes, and actions. Its central significance lies in distinguishing it from purely personal or contractual relationships, as well as in constituting rights that, independent of contractual relationships, exist and have effect directly in relation to the object itself. Across numerous legal fields—from property law to tax law to inheritance law—the term plays a structuring role and contributes to the systematics and differentiation of the various institutions.
Frequently Asked Questions
What legal framework applies to real estate purchases in Germany?
The purchase of real estate in Germany is subject to strict legal requirements, especially regarding form, procedure, and the involvement of third parties. As a rule, transfer of ownership of real estate requires a notarially certified purchase contract (§ 311b BGB). Without this certification, the contract is void. The notary acts in a neutral advisory capacity and ensures that both parties understand the contract and all legal requirements are met. After signing the contract, the new owner is entered in the land register. Only with this entry does the buyer become the legal owner of the property (§ 873 BGB). Moreover, rules regarding financing, such as land charges or mortgages, are legally regulated in the land register as well. Specific regulations apply in cases of pre-emption rights, such as those held by municipalities, and for properties abroad, foreign legal systems may have to be considered. Additionally, buyers are obliged by the Money Laundering Act (GwG) to clearly identify themselves.
What legal obligations does a seller have when selling real estate?
The seller of a property is legally obliged to inform the buyer of all essential characteristics and any defects of the property. If the seller omits this intentionally or fraudulently, the buyer may withdraw from the contract or claim damages under § 123 BGB for fraudulent misrepresentation. In the purchase agreement, warranty claims for used properties may be largely excluded, but not in the case of intentional or fraudulent concealment. The seller is likewise required by the Money Laundering Act to verify the buyer’s identity with the help of the notary. Tax considerations, such as capital gains tax if sold within ten years of purchase (exception: personal use), are also relevant. In owner associations (e.g., partition declaration or community rules), additional disclosure obligations must be observed.
What is the role of the land register and how is the process regulated from a legal perspective?
The land register is the central record of legal relationships concerning real estate and property in Germany. Without an entry in the land register, neither acquisition nor encumbrance (e.g., mortgage, land charge) is effective. The land registry office reviews applications in strict accordance with legal regulations. Changes are only possible with certified documents and after an entry authorization has been granted (§§ 19, 20 GBO). The registration of the new owner is normally completed after submission of the clearance certificate from the tax office, which is issued after payment of transfer tax. Access to the land register is granted under § 12 GBO only to authorized persons. The land register enjoys public faith (§ 892 BGB), which means that trust in the accuracy of entries is protected—incorrect entries may give rise to claims for damages.
What are the legal particularities relevant to the acquisition of condominium ownership (WEG)?
The acquisition of condominium ownership is governed by the Condominium Act (WEG). When purchasing a condominium, in addition to exclusive ownership (the apartment), purchasers acquire a co-ownership share of the communal property (e.g., roof, staircase). Buyers thus have rights and obligations within the owners’ association, such as payment of homeowner fees, reserves for maintenance, and participation in owners’ meetings. Agreements and arrangements within the community (partition declaration, community rules) are legally binding. Upon sale, the buyer is bound by existing agreements; resolutions made by the owners’ meeting may also affect future owners. Disputes are handled by the district court responsible for condominium cases.
What is the legal significance of building encumbrances and easements?
Building encumbrances and easements are legal burdens on a property, entered in public or land register-based records. Building encumbrances (according to state building codes) are kept separately at the building authority and involve obligations to the building supervisory authority, such as parking or boundary encumbrances. Unlike easements, they are not listed in the land register, but in the register of building encumbrances. Easements (e.g., rights of way, utility rights) are entered in the land register and grant third parties specific usage rights over the property. Both can significantly influence the value and usability of a property and must be carefully reviewed during the purchase process. Access to the register of building encumbrances must be requested separately and is legally relevant for both sellers and buyers.
What property transfer tax regulations must be observed when acquiring real estate?
When purchasing land or real estate in Germany, property transfer tax becomes due (§ 1 GrEStG). The assessment basis is the purchase price; the rate varies by federal state (between 3.5% and 6.5%). The notary is required to report the transfer of property to the tax office. Only after payment of the property transfer tax does the purchaser receive the clearance certificate, which is required for entry into the land register. Exemptions from tax liability exist for certain types of acquisitions, for example, in transfers between spouses or close relatives. Share deals may also trigger property transfer tax under certain conditions. Incorrect or omitted disclosures can result in subsequent tax claims.
What data protection aspects must be considered when trading real estate?
The real estate trade requires the processing of numerous personal data by agents, notaries, banks, and land registry offices. Under the General Data Protection Regulation (GDPR), it must be ensured that the collection, storage, and transfer of such data is based on an appropriate legal basis, for example for contract fulfilment or compliance with statutory obligations (e.g., Money Laundering Act). Controllers must inform data subjects about the nature, scope, and purpose of data processing, and implement safeguards to protect the data. Significant fines may be imposed for unauthorized data access. In general, data may only be stored as long as needed for the respective statutory retention and documentation obligations.
