News on bidding proceedings for lost land charge certificates (OLG Cologne, August 13, 2025)

News from the Higher Regional Court of Cologne on the bidding procedure for the loss of land charge certificates (August 13, 2025, 2 W 125/25):

Facts and decision:

In principle, the creditor entered in the land register is entitled to file a petition for the execution of a procedure to set aside a mortgage pursuant to Section 1162 BGB (loss of mortgage certificates, Section 467 (2) FamFG). These are usually cases in which the loan has long since been repaid and the mortgagee has no interest in such proceedings. Mortgagees then usually issue a (possibly duplicate) deletion permit; this is usually sufficient to carry out the proceedings, as the courts see this as an authorization for the owner of the encumbered property to carry out the proceedings. The special feature here was that, with regard to a land charge, it was not the abandonment that was declared („deletion“), but the „waiver“, which leads to the land charge being converted into an owner's right (naturally only with entry in the land register, which could not take place here due to the missing letter, §§ 42, 41 GBO). The Local Court (Bidding Department) considered a declaration of waiver to be insufficient; the Higher Regional Court of Cologne rightly disagreed: just as with a deletion approval, a waiver also expresses that the creditor has no interest in the right and authorizes the owner in this respect.

Classification and evaluation:

The waiver of a mortgage is one of the three forms of restitution (rescission/deletion and assignment are the other two), and the least common form. When entered in the land register, the waiver has the effect of creating an owner's land charge (§§ 1192 Para. 1, 1168 Para. 1 BGB). This form of restitution is probably the least common, and I do not see the advantages over an assignment (an assignment can also be made to the owner). Be that as it may: it is obvious that the creditor expresses that it has no interest in the land charge by carrying out a restitution act. Of course, it would be best if the owner were expressly authorized to conduct the proceedings, but banks and credit institutions cannot be persuaded to do so.

The decision of the Higher Regional Court of Cologne is in line with the case law in other contexts, according to which, for example, there is also no violation of the principle of prior registration pursuant to Section 39 (1) GBO if an assignee approves the deletion on the basis of a declaration of assignment (BGH 15.7.2010, V ZB 107/10).