OLG Naumburg: Restrictive interpretation of the MoPeG transitional provision in the event of a GbR sale (Art. 229 § 21 EGBGB)

Pre-entry of the GbR in the company register: When does the exception apply?

The Higher Regional Court (OLG) of Naumburg issued a ruling on February 28, 2025 (Ref.: 12 Wx 52/24) an important decision on the Transitional provision of the MoPeG (Act on the Modernization of Partnership Law). The decision clarifies the restrictive scope of application of Art. 229 § 21 para. 4 EGBGB and thus tightens the requirements for the Transfer of ownership of GbR property after the reporting date.

The core of the problem: Prior notice vs. prior registration obligation

After the MoPeG comes into force (on January 1, 2024), the following applies in principle Pre-registration principle for the Land register correction in accordance with § 47 Para. 2 GBO. This means: Before a right of a registered GbR (eGbR) can be entered in the land register, the company itself must be entered in the Company register be registered.

Art. 229 § 21 para. 4 EGBGB contains an exception to this principle. The OLG Naumburg had to answer the question of whether this exception applies in the case of a selling GbR is applied if a tax liability has already been recognized in favor of the acquirer before the reporting date. Prior notice of conveyance was registered.

Facts: GbR sale before MoPeG, transfer of ownership afterwards

1. Sale and reservation (before 01.01.2024): One GbR, whose shareholders were still entered in the land register (no eGbR), sold real estate. On October 13, 2023 was made in favor of the purchaser. Prior notice of conveyance registered.
2. Application for re-registration (after 01.01.2024): After the MoPeG came into force on January 1, 2024, the application for Transfer of ownership placed.

The purchaser argued that the Exceptional provision (para. 4) must apply, as the priority notice had already been issued before the Deadline was registered.

Restrictive OLG interpretation: The exception is narrowly defined

The OLG Naumburg rejected this broad interpretation and clarified that the exception of Art. 229 § 21 para. 4 EGBGB not generally comply with para. 1 overrides.

The legal text of para. 4 merely assigns the Continued validity of the old version of Section 899a BGB and Section 47 (2) GBO to. The court argued:

1. Wording and systematics: The formulation limits the exceptions explicitly to the aforementioned regulations.
2. Selling vs. acquiring GbR: § Section 47 (2) GBO (old version) regulated the entry of a acquiring GbR. The regulation was not tailored to the selling GbR, whose shareholders are already registered.
3. Purpose of the law: The explanatory memorandum to the law aimed to Acquisition of properties by GbRs, but not necessarily to facilitate the sale of existing properties, as the registration requirement is intended to clean up the land register.

Therefore, in the opinion of the OLG Naumburg, the exception for the selling GbR in this context not applicable. The GbR must therefore Pre-registration in the company register before the transfer of ownership can take place.

Rating

The decision of the OLG Naumburg of 28.02.2025 confirms a Strict application of the MoPeG pre-registration principle on the sale of GbR real estate, even if a priority notice was entered before January 1, 2024.