The back completion of a scrap iron real estate financing after iurisdiction of the BGH

(openPR) - the Federal High Court issued some fundamental decisions in the past year for the back completion free-hold flat purchases credit-financed from credit-financed Beitritten to closed real estate funds and, which contain quite positive beginnings in substantial fundamentals. In the opinion the judge form the acquisition of a real estate fund portion and the loan, which serve for the financing of this acquisition and are not dependent by a mortgage lien not on the safety device, a connected business, as far as between both contracts an economical unit exists. This is irrefutably assumed, if the credit agreement does not come due to own initiative of the applicant for the credit, but by the sales representative of the plant driver. If a connected business is present, the investor can hold out its against the fund to which is entitled right because of bad-cunning deception upon the fund entry also the bank and defend itself so in particular against a demand of the bank from the loan agreement. If the proof of a bad-cunning deception should not be able to be led by the mediator, a claim for damages of the bank comes concretely from its own clearing-up being to blame for because of one knowledge projection/lead recognizable for it into consideration with a evident bad-cunning deception of the investors by the fund initiators or establishment partners. The principles laid down there apply also with a connected business, if the fund initiators or establishment partner standing outside of the group committed the bad-cunning deception and the bank with them in institutionalized way cooperated.

Beyond that the investor can contest the loan agreement connected with the plant contract, even if the deception were causal for its conclusion. The borrower can likewise make the requirement from being to blame for with contract conclusion against the mediator, existing beside it, valid against the credit-giving bank. Because this must be able to be added with a connected business the deceptive behavior of the mediator.

The investor does not have to pay the credit back, but only its fund portion in these cases or after its notice its requirement for compensation to the credit-giving bank transfer, which for its part owes the Rückerstattung of interest and repayment achievements to the applicant for the credit. In cases of institutionalized cooperating of the credit-giving bank with the salesman or Vertreiber of the financed object the investor under relieved conditions with success can appoint to a concrete knowledge projection/lead of the financing bank releasing the obligation to explanation in connection with a bad-cunning deception of the investor by incorrect data of the mediators, salesmen or fund initiators and/or the fund folder concerning the plant object. The knowledge of the bank of such a bad-cunning deception is widerleglich assumed, if also the financing of the investment were offered to salesmen or fund initiators, who assigned mediators and the financing bank in institutionalized way from them cooperate, by the salesman or mediator and the incorrectness of the data of the salesman, fund initiator is evident or the mediator active for it and/or the sales or fund folder after the circumstances of the case. These principles over a claim for damages of the Erwerbers of a credit-financed real estate investment from their own clearing-up being to blame for of the financing bank because of a knowledge projection/lead apply also with a connected business, if the fund initiators or establishment partner standing outside of the group committed the bad-cunning deception and the bank with them in institutionalized way cooperated.

The bank has in such a way to place the investors in such cases after the principle of the restitution in kind, as these would have confessed without the culpable obligation to explanation injury. Is after the life experience, which is incumbent on the bank in the concrete case to disprove to assume the investor would have acquired the plant with a clearing-up over the incorrectness of the data and/or would not have contested the sales contract because of bad-cunning deception and would not have made therefore the relevant declarations. This claim for damages the investors of their demand from the notarial enforcement deed of submission can hold because of from them for taken over personal adhesion against.

Investors, with whom similar circumstances are present, should let their case examine for the legal possibilities of a back completion.

Thieler attorney company ltd.
Attorney Stefan A. Seitz
At the Perl oh mountain 3
86150 Augsburg
Tel.: 0821/34999100
Fax.: 0821/34999101
E-Mail: seitz@rechtsanwalt-thieler.de
Internet: www.rechtsanwalt-thieler.de

The Kanzlei is active for decades in the emphasis in the investment right. In the locations Munich, Augsburg, because home, wolf advice living and Passau find competent consultation in the different right areas to investor. A special emphasis lies in the treatment of participation in closed real estate funds in the legal form of the GbR and kg.

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