OLG Brandenburg: Interpretation of a debit authorization (lack of mention of § 800 ZPO harmless)

OLG Brandenburg facilitates practice with debit powers (§ 800 ZPO)

The Higher Regional Court of Brandenburg by resolution of September 23, 2025 (Ref. 5 W 120/24) a practical decision on the Interpretation of debit authorizations taken. The court provides clarity for the Creation of enforceable mortgages and thus creates more legal certainty in the Land register proceedings.

Starting point: Power of attorney to create mortgages

In a Purchase contract was the following Power of attorney to debit included:

„The seller authorizes the purchaser to create mortgages in any amount and with any ancillary services, including in enforceable form, to the detriment of the subject matter of the contract and to issue declarations of purpose and land register declarations.“

The purchaser then ordered a Land charge, which enforceable pursuant to § 800 ZPO should be. The Land Registry (GBA) considered the power of attorney to be not sufficient. Reasoning: The scope of the power of attorney should be interpreted narrowly and „enforceable“ does not necessarily mean „enforceable in accordance with Section 800 ZPO“.

The decision of the OLG Brandenburg

The OLG Brandenburg disagreed with this narrow interpretation. In his opinion, the wording „enforceable against the subject matter of the contract“ also includes the Enforceability according to § 800 ZPO. The court expressly distinguishes between the Subjection to all assets and the Subjection to land ownership. It also takes into account the Interests of the contracting parties and the practical meaning of the formulation.

Significance for practice

The result of the decision is practical and welcome, although not entirely beyond doubt. Due to the complex Dogmatics of § 800 ZPO there can theoretically be cases in which a Submission only due to the claim in rem (Section 794 (1) No. 5 ZPO) without an express submission in accordance with § 800 ZPO.
In the Contract design should therefore continue clear and explicit it should be noted that Mortgages enforceable in accordance with § 800 ZPO should be.

Note for notarial practice

The land registry based its decision on an older Case law, according to which a power of attorney for the sale of a property does not automatically Encumbrance with enforceable mortgages justified. However, this view is no longer up to date: It contradicts today's notarial practice and the current understanding of the term.
Nevertheless, it remains in practice to note, as long as there is no uniform case law.