OLG Dresden: Exchange of co-ownership shares permissible under civil law in any case

OLG Dresden, 7.7.2025, 17 W 428/25: Exchange of co-ownership shares of spouses permissible.

An interesting decision by the Higher Regional Court of Dresden on July 17 deserves attention: Two spouses were registered as equal owners of a property. Now each spouse transferred their half to the other. What is striking about this is that, in the end, the ownership structure does not change. The land registry denied the possibility of such a transfer as there was no „interest in legal protection“ - the legal relationships would not be changed. The OLG, on the other hand, confirmed the spouses' freedom of organization and also pointed out that a change did indeed occur - because the spouses had reserved the right to reclaim the respective transfer in the event that the respective purchaser died before the respective seller. In addition, the land registry does not have to question the meaningfulness of an arrangement desired by the parties involved outside of statutory provisions (§§ 134, 138 BGB, not relevant here).
But the question remains: Why? The answers are gift-related considerations, especially when it comes to the transfer of co-ownership shares in the family home (Section 13 (1) no. 4a ErbStG is more advantageous for transfers during lifetime compared to the provision for death under 4b). This is because the transfer inter vivos is not subject to a ten-year time limit for own use, unlike under 4b. If the spouses had not carried out a transfer, the other spouse would have acquired the co-ownership share of the deceased spouse by way of succession (assuming corresponding dispositions upon death or statutory succession). He or she would only have received the tax exemption for this property share in accordance with Section 13 para. 1 no. 4b ErbStG if he or she complied with the ten-year period of use for his or her own residential purposes stipulated therein. Assuming that this agreement is recognized for tax purposes, there would be no such time limit in the case decided by the Dresden Higher Regional Court: the surviving spouse received a share of the property by way of a gift, so that Section 13(1)(4A) applies; he regains the other share by revoking the gift in accordance with Section 29 ErbStG, so that this share is treated as if it had always belonged to him (reversal of a gift). However, I can imagine that the tax authorities will raise accusations of an abuse of structuring in accordance with Section 42 of the German Fiscal Code and that a judicial clarification before the tax courts will be necessary. Naturally, the decision of the Higher Regional Court of Dresden does not make any statements on tax recognition.