Can a German GbR acquire real estate in Spain?

The decision of the Directorate General for Legal Certainty and Public Faith (DGSJFP) of 27 September 2022, published in the Spanish Official Gazette on 27 October 2022, deals with the question of whether and how a German civil law partnership (GbR) can effectively acquire real estate in Spain and be registered as the owner of the real estate in the Spanish land register.

Facts

A German GbR acquired a property located in Spain by means of a notarized purchase deed. When the purchase contract was notarized before a Spanish notary, the GbR was represented by an authorized representative who acted on the basis of a power of attorney notarized by a German notary, which was validly granted in Germany by one of the managing directors of the GbR. In the German power of attorney deed, the German notary stated that the German GbR existed and was validly established in accordance with German formalities.

In the Spanish deed of sale of the property, in addition to the data of the GbR, its Spanish tax identification number (NIF), as well as the personal data of the authorized representative and the data of the German power of attorney deed were recorded. The Spanish notary pointed out in the deed that the German power of attorney complies with the principle of equivalence, i.e. it is equivalent to a Spanish deed.

Rejection by the land register

After submitting the deed of sale to the competent land registry for its registration, the land registrar rejected the application for registration. According to the land registrar, registration requires that all partners of the German GbR are identified in the land register and, if they are foreigners, have a Spanish foreigner identification number (NIE), which must also be stated. Here the Spanish land registrar essentially relies on German law. In his opinion, the legal personality as well as the legal capacity of German GbRs, in particular to perform legal acts in relation to real estate, are highly controversial according to German case law and doctrine. In his decision, the land registrar cites the judgement of the Federal Supreme Court of 4 December 2008, according to which it is recognized that a GbR has partial legal capacity and in this respect can acquire ownership of real estate, but the partners must be mentioned by name in the land register. As this was not the case here, the land register refused the entry.

The GbR filed an appeal against the refusal decision. According to the complainant, only Spanish law applies with regard to the conditions and procedure for registration in the Spanish land register. The registration in the Spanish land register should not be refused because under German law the registration of a GbR as owner is subject to further conditions.

Decision

The DGSJFP followed the complainant's argumentation. With regard to the requirements for entries in the Spanish land register, only the law of the place where the property is located ("lex rei sitae") applies, i.e. in the present case, Spanish law. Whether the entry is disputed under German law and further requirements have to be fulfilled is irrelevant in this respect. An analogous application of German law is excluded.

Die The German GbR corresponds to the Spanish civil society (sociedad civil). According to the Spanish law applicable here, a sociedad civil can acquire real estate in Spain without further ado and be registered in the Spanish land register as owner, without the partners having to be entered or their personal details given. It is therefore sufficient that the Spanish tax identification number of the GbR and the identification number of the representative are stated in the deed. It cannot be required that each foreign partner of the GbR must also state an NIE.

The DGSFP therefore upheld the appeal and overturned the land registry’s rejection decision.

Autor: Axel Roth