Under German law, a partnership under civil law has legal capacity, even though it is not registered in the commercial register and even though it is not a legal entity. The civil law partnership also does not allow any limitation of liability. It can be founded without a written contract. Regardless of this, it can be registered in the land register as the owner of a property.
Change of partners
Cases can be problematic in which, after the conclusion of a notarial deed of sale for a property, the composition of the shareholders changes somewhat. A not uncommon case is the death of a partner.
Dissolution upon the death of a partner
Unless the statutes provide otherwise, the company is dissolved by the death of one of the partners. This therefore applies even if several other shareholders remain after the death of one of them. Upon dissolution, the company is transformed into a liquidating company. As a rule, contracts already concluded are still being executed.
The succession clauses
Most company agreements contain so-called succession clauses or entry clauses in order to avoid dissolution. The difference is only gradual: in the case of succession clauses, at the moment of death there is automatically a succession regulated in the clause, whereas in the case of entry clauses the company is initially continued among the other shareholders and the heirs only have a right of entry which can only be exercised subsequently.
The role of the certificate of inheritance
a certificate of inheritance identifies someone as the heir. A certificate of inheritance does not always have to be correct, especially if a further will only appears after the probate court has issued the certificate of inheritance, the certificate of inheritance already issued subsequently proves to be incorrect. In such constellations, it is possible that the so-called putative heir has already made use of a right of entry into the partnership under civil law by means of the certificate of inheritance.
The putative heir with or without the certificate of inheritance
Legal transactions of the presumed heir and entered partner are in principle effective due to the trust protection effect of the certificate of inheritance. The true heir then takes over the share in the company in the condition it was in when the error was discovered, see Munich Commentary on the Civil Code, § 727 BGB marginal no. 64. If the right of entry was exercised without a certificate of inheritance, the true heir generally takes over the share in the company in the condition it was in at the time before the incorrect entry of the heir apparent. Any dispositions and legal transactions in the meantime are generally ineffective and must be settled internally between the company and the heir apparent. The true heir does not have to accept these dispositions and legal transactions, see Münchener Kommentar, loc. cit. para. 65. The same will apply to the conclusion of real estate purchase agreements with the participation of the presumed heir.
Legal advice on the purchase of property in Germany
I offer you affordable legal advice in English language in connection with the purchase of a property in Germany. I check the notarial draft of the purchase contract for you. You will find further details and useful links on the page Advice on German Real Estate Law .