OLG Braunschweig, September 1, 2025, 2 W 808/25: Ground rent adjustment can also be entered in the land register for clarification purposes
A decision of the Higher Regional Court (OLG) of Braunschweig dated September 1, 2025 (case no. 2 W 808/25) deals with the (very relevant in practice) question of whether the merely clarifying entry of a change in ground rent (by virtue of a value protection clause) can be entered in the land register as a change in content.
The main facts of the case can be summarized as follows:
- Initial situation: A property was encumbered with a heritable building right for which a ground rent of originally €1,201.75 per year had been agreed.
- Value protection clause: The leasehold contract (section 14 no. 3) provided for an automatic adjustment of the interest rate as soon as the consumer price index changes by more than 5 %. This clause ensures that the real value of the payment is maintained over time.
- Adjustment and application: The property owner and the hereditary building owners agreed the adjustment to € 1,783.40 per year in a notarial deed, approved and the owner applied for execution in the land register.
The competent land registry office responded to this application with an interim order dated 5 June 2025, in which it classified the requested entry as „permissible in principle“, but nevertheless rejected it as it was an „unnecessary or superfluous entry“. The legal change had already become effective through the contractual clause and did not require confirmation in the land register.
The applicant lodged an appeal against this decision on 07.07.2025. She argued that, in view of the extremely long remaining term of the heritable building right (until 31.12.2103), the entry would lead to a considerable increase in legal certainty for all parties involved. After the land registry did not uphold the appeal, it referred the matter to the Braunschweig Higher Regional Court for a decision, which issued the following landmark ruling.
3. the reasons for the decision of the OLG Braunschweig
3.1 Formal merits of the complaint
In a first step, the court revoked the interim order of the land registry on formal grounds. It found that the legal requirements for such an order pursuant to Section 18 (1) sentence 1 of the Land Register Code (GBO) were not met.
The central legal point here is that an interim injunction is a remediable presupposes an obstacle to registration. Its purpose is to give the applicant the opportunity to remedy a defect in order to make the entry possible after all. In the present case, however, the land registry had created an irresolvable logical contradiction: it rejected the content of the application because it considered the entry to be superfluous, but at the same time set a deadline for the removal of an obstacle that it neither named nor classified as remediable. As the court rightly found, no removable obstacle was identified and consequently no way to remove it was indicated. The interim order was therefore already formally incorrect.
3.2 Substantive merits: The admissibility of the declaratory registration
At the heart of the decision, however, is the substantive examination in which the OLG affirmed the admissibility of the application. To this end, the court carefully weighed up two fundamental principles of land register law.
First of all, it established the legal distinction between more constitutive (right-generating) and declaratory (legally attesting) effect of a land register entry. The adjustment of the ground rent occurs automatically in the case of an effective value adjustment clause pursuant to section 1105 (1) sentence 2 BGB in conjunction with section 9 (1) sentence 1 ErbbauRG as soon as the contractual requirements are met. As the court puts it, this happens „without any action on the part of the creditor“. Entry in the land register is therefore not required for the adjustment to be effective; it would merely have a clarifying, declaratory function.
Strictly speaking, therefore, there is no change in the content of the ground rent reallast because the value-secured payment amount arises without further ado from the agreement. The court nevertheless affirmed the possibility of a clarifying entry. The decisive factor for this was that a) there is a particular need for legal certainty in the case of heritable building rights and b) such entries are not made all too frequently.
I think the decision is the right one. The purpose of the land register entry is also to make the greatest possible encumbrance recognizable. This objective is diminished in any case in the case of value-secured real encumbrances; however, if the true extent of the encumbrance is updated from time to time, the purpose of the land register in registering encumbrances is achieved to a greater extent than if it is left at the ancient ground rent. Whether an update would also be possible if (as is permissible) the amount of the original ground rent was not even recognizable from the grant remains open.