Registrability – Definition, legal basis, and areas of application
Die Registrability is a central concept in German law and refers to the existence of statutory and actual requirements that make it possible to enter a specific right or fact in an official register. Registrability plays a particularly important role in connection with the land register, commercial register, register of associations, partnership register, as well as patent, trademark, and other intellectual property registers. This article provides a comprehensive explanation of the term ‘registrability,’ examines the legal foundations, and distinguishes the prerequisites and consequences of registrability in various areas of law.
Basic concepts and legal classification
Definition of registrability
Registrability refers to the characteristic of a legal situation, according to the relevant legal provisions, to be included in a public register. The requirement of registrability ensures that only those legal relationships that meet certain substantive and formal requirements can be entered into a register and thereby produce legal effects.
Significance within the legal system
Facts eligible for registration often acquire public notice, protective effect, legitimizing effect, and sometimes even constitutive effect with their entry. Registrability thus serves both legal certainty and the protection of legitimate expectations in legal transactions.
Registrability in the most important registers
Registrability in the land register (§ 873 BGB et seq.)
In the land register, rights to real estate (for example, acquisition of ownership, land charge, mortgage, easements) can only be entered if these rights are registrable. This mainly means that the relevant right can be recorded in the land register according to substantive law and that the right is sufficiently definite (definiteness) and provided with the statutory content. Principle of definiteness: Registrability requires that the right to be registered is defined so concretely in terms of type, scope, and subject that there is no doubt for third parties as to the content and extent of the right. Prohibition of registration of inadmissible rights: Rights that are not provided for under German property law or that violate statutory prohibitions (§ 134 BGB) are not registrable.
Registrability in the commercial register (§§ 8, 9 HGB)
The commercial register records information regarding merchants and companies. Only those facts provided for by the German Commercial Code (HGB) and other relevant laws are registrable. This includes, for example, the company name, registered office, representation rules, changes in partners, and changes of legal form. Statutory basis: Registrability follows from the obligation or eligibility to register under the HGB and other commercial law statutes. Substantive and formal requirements: The fact to be registered must comply with the law and meet the formal requirements (e.g., public certification).
Registrability in the register of associations (§ 55 BGB et seq.)
The register of associations only records certain facts and legal relationships specifically provided for by law (e.g., foundation, amendments to the articles of association, board elections). Only those association data that are expressly designated as relevant to the register by the Civil Code are registrable.
Registrability in IP registers (patent, trademark, design register)
The principle that only certain, legally defined rights can be entered in the relevant register also applies in the field of industrial property protection. Registrability is linked to the substantive requirements for entry, such as novelty, protectability, and the submission of correct application documents.
General prerequisites for registrability
Legal bases
Registrability is generally composed of substantive and formal prerequisites: Substantive registrability: The right or fact must be provided for by law and comply with the requirements of the relevant register law. Formal registrability: The registration must be applied for in the prescribed form, for example via a public or publicly certified document, and the registration authority must have formal jurisdiction.
Exclusion of registrability
Facts that violate mandatory legal provisions, are not sufficiently certain, or are not understandable in content are considered not registrable and will be rejected by the registration authorities.
Legal effects of registrability and its implementation
Constitutive and declaratory effect of registration
Not every registrable situation has the same legal effect. For some rights, the registration itself is a prerequisite for their creation (constitutive effect, e.g., for most real estate rights under § 873 BGB). In other cases, registration is merely declaratory, i.e., it simply affirms a legal status (e.g., registration of the managing director in the commercial register).
Publicity and presumption of trust
The registration of registrable rights creates legal certainty for third parties (‘public faith of the land register’ under § 892 BGB, publicity effect of commercial register entries under § 15 HGB).
Distinction from related terms
Worthiness of registration
Registrability must be distinguished from worthiness of registration, which describes the expediency or the interest in the registration – for example, in the sense of a public interest. Registrability, on the other hand, refers exclusively to the objective admissibility of the registration.
Registrability and necessity of registration
While registrability describes ob that a fact can be registered, necessity of registration refers to ob that a fact must be registered (mandatory registration provision). (mandatory registration provision).
Significance in practice and legal consequences of inadmissible registrations
Legal remedies in registration procedures
If an application for registration is rejected, an appeal procedure can be initiated in many areas of law (e.g., correction of the land register under § 71 GBO, commercial register registration under § 382 FamFG).
Consequences of inadmissible registrations
If a non-registrable fact is nevertheless entered, such registration is unlawful and must generally be deleted or corrected. The legal effects of the registration do not arise or only arise to a limited extent in such cases.
Summary
Registrability is a fundamental legal institution that controls the admission of rights and facts into public registers, thereby ensuring legal certainty, trust in legal transactions, and order. It presupposes that the relevant legal relationship is provided for by law, sufficiently determined, and compatible with the formal registration requirements. Registrability thus constitutes a central criterion in the German register system and ensures the integrity, reliability, and legal clarity of public registers.
Frequently asked questions
Under what circumstances is a right registrable?
For a right to be entered in the land register, various legal requirements must be met. It is especially important that the relevant right is registrable under the applicable law. This includes, for example, ownership, limited real rights such as easements, usufruct, or mortgages. Furthermore, the right must be sufficiently determined, or at least determinable, in its substance and content, as the purpose of entry in the land register is to protect legal transactions, requiring clarity about the registered right (principle of definiteness, § 28 GBO). In addition, an effective consent to registration (§ 19 GBO) of the property owner concerned is generally required. This consent must be publicly certified to be effective in registration proceedings. Depending on the type of right, further formalities or approvals, such as under the Condominium Act or for heritable building rights, may be necessary. It is also essential that the registration does not conflict with statutory prohibitions on disposal or other legal obstacles. In summary, it must always be checked whether the right to be registered is based on statutory provisions and whether the formal as well as substantive requirements for registration are fulfilled.
What role does the definiteness of the right to be registered play?
The definiteness of the right to be registered is a key criterion for registrability. According to case law and § 28 GBO, in particular the subject, content, and scope of the right must be stated clearly and unambiguously. This serves the clarity and safety of legal transactions: only in this way can third parties, such as purchasers or creditors, instantly recognize the registered right and its scope. Unclear, ambiguous, or incomplete legal entries are therefore not registrable, as they would lead to legal uncertainty and disputes in land register dealings. For easements, for example, it must be clearly determined at whose expense and for what purposes they exist. Even so-called global or blanket land charges are only accepted by the land registry office if their content and scope are clear.
Which kinds of rights can generally be registered, and are there any restrictions?
In principle, only those rights may be entered in the land register which the law expressly designates as registrable or permits. These especially include ownership, heritable building rights, limited personal easements, easements, real burdens, mortgages, land charges, and annuity charges. Rights that are merely contractual in nature — that is, that do not establish a real right enforceable against everyone, such as lease agreements or options — are generally not registrable. Purely factual situations or internal arrangements between parties are also not registrable. However, there are statutory exceptions, for example for priority notices (§ 883 BGB) or for objections (§§ 899, 892 BGB), if the legislator provides for special protection in the land register.
Why might a right, despite being legally admissible, not be registrable in a specific case?
Even if a right is principally registrable under the law, registrability may be lacking in a particular case if the necessary requirements — for example, definiteness, effective consent, or required approvals — are not met. Public or private dispositions such as the requirement for consent under § 1821 BGB for real estate transactions by a legal guardian, or an official prohibition on sale, may also preclude registrability. Frequently, there is also a lack of a verifiable legal ground (such as a notarized creation of a land charge), which the land registry must examine for the registration. In such cases, the land registry may refuse the requested registration.
What formal requirements must be met for registrability?
For registrability, a specific form of documentation and proof of the right to be registered in favor of the applicant is usually required. In most cases, a notarized or officially certified statement (consent or application) according to §§ 19, 29 GBO is necessary. In addition, the required documents — such as authorities’ consents, permits, or clearance certificates for the transfer of ownership — must be presented to the required extent. Only when all formal proofs are submitted and the statutory provisions are complied with can proper entry in the land register take place.
What role does the land registry office play in examining registrability?
The land registry office is required to carefully examine every requested registration to ensure that the right is registrable according to the legal provisions, that all formal and substantive requirements are met, and that no obstacles exist. This includes checking the admissibility of a registration according to the Land Register Code (GBO) and the relevant provisions of the BGB. The office can request additional documents or statements and is entitled to refuse a registration if there are doubts about the registrability or the correctness of the process. The examination obligation of the land registry office is a key safeguard in registry management and serves to prevent unlawful or erroneous registrations.
Are there situations in which a previously registered right is subsequently recognized as not registrable?
Yes, it may happen that a previously registered right is later recognized as not registrable, either because a procedural error occurred during registration or it is established afterwards that the substantive requirements were never fulfilled. In such cases, the right may be deleted by the authorities or upon application, provided no objection has been registered and a bona fide third party cannot claim protection. The land register enjoys public trust (§ 892 BGB), so retroactive corrections are only possible to a limited extent and in accordance with the provisions governing the land register. Registrability is therefore of central importance not only for the initial registration but also for the subsequent validity of the entry.
