Fair acquisition of the objection to the mortgage when changing the…

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A defense against the mortgage protects the owner against a creditor’s access to the property to be secured. An objection is of particular importance if the owner is a different person from the debtor.

If there is a change of mortgagee, the rules of honest acquisition apply: a new mortgagee must accept an objection entered in the land register, while an unregistered objection is lost through honest acquisition of the mortgage.

While this constellation has found a clear regulation in the law, there is no such in the event that the owner of the mortgage does not change, but the property owner: What happens to an objection entered in the land register that actually does not exist or no longer exists? Can it be acquired by an honest buyer of the property?

The author discusses whether the legislature deliberately did not regulate these questions, so that it can be assumed that a fair acquisition of a defense by a property purchaser would be excluded, or whether he assumes as a matter of course that such an acquisition of the defense must be possible: finally does the law protect the acquirer of a mortgage; traffic protection could require that the purchaser of a property be protected in the same way.

To get to the bottom of these questions, the author delves into legal history and the fundamental questions of what a defense to a mortgage is and how it passes to an owner. In addition to literature and case law, the author also analyzes legislative decisions in other areas of law in which honest acquisition is possible. The book represents a contribution to the enlightenment of a legal question that has hitherto hardly been dealt with.

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