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Bidding procedure; implementation and issuance of an exclusion order
The judicial officer of the locally competent district court shall decide on the conduct of the procedure and the issuance of an exclusion order.
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Amtsgericht Nördlingen
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Tändelmarkt 5
86720 Nördlingen
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Postfach 1111
86711 Nördlingen
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Electronic legal transactions
Sie können mit dem Gericht sicher elektronisch kommunizieren und z. B. Anfragen, Anträge und Unterlagen einreichen.
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Procedure details
Description
In certain areas of the legal system, the practical need to create clear conditions can be so important that it justifies an encroachment on existing legal positions. One example is the case where someone assumes for a long time that the property they are using belongs to them, but then doubts arise about the ownership situation.
In this case, the law offers the possibility of conducting court proceedings to clarify the legal situation conclusively for everyone. The central element of this procedure is the so-called summons, by which the holder of the legal position in question is requested to register it with the court by a certain date. If he fails to do so, he is excluded by court order. This clears the way for the establishment of new rights. For example, in the case mentioned above, the long-term user of the property can be entered in the land register as the owner.
The cases in which a procedure for the imposition of a compulsory purchase order can be carried out are regulated conclusively in the law. This ensures that the interference with existing rights associated with the issuing of an exclusion order is limited to exceptional cases.
The course of the proceedings in matters relating to a court order is regulated in sections 433 to 484 of the Act on Proceedings in Family Matters and in Matters of Non-Contentious Jurisdiction (FamFG). Sections 433 to 441 of the FamFG contain general provisions for all proceedings relating to the issue of bailment, while sections 442 to 484 of the FamFG contain special provisions that only apply to certain cases.
In contrast, the question of whether and, if so, under what conditions a procedure to issue a writ of prohibition can be carried out can be found in the relevant substantive provisions. Finding these provisions is made easier by the references contained in sections 442 et seq. of the FamFG.
Requirements
The prerequisites under which a request for exclusion procedure can be carried out vary depending on the area of application. They largely depend on how worthy of protection the person who would benefit from an exclusion order is. For example, an heir who is regularly unable to conclusively assess the extent to which the estate is encumbered with liabilities can initiate a summons of the creditors of the estate. If, on the other hand, the user of a property wishes to ensure clarity with regard to the ownership structure by means of a summons procedure, a corresponding application is only admissible if he has already owned the property for 30 years.
A mortgage certificate (e.g. a land charge certificate) can also be declared null and void by way of a declaration of invalidity procedure (Sections 466 to 484 FamFG) if it has been lost or destroyed.
Deadlines
The details of the bidding procedure also vary depending on the area of application. In all cases, however, an application is required, which is first examined by the court for admissibility and - if the result of this examination is positive - then published. It then waits to see whether applications are received by the court within the period of notice. The court then decides whether to issue an exclusion order.
The proceedings are conducted by the judicial officer of the locally competent district court. Which local court this is depends on what the summons relates to in the individual case.
Legal bases
Appeal
An appeal may be lodged against an exclusion order within a period of one month of its public notification in accordance with Section 58 (1) and Section 63 (1) FamFG. If the appellant is unable to meet the deadline through no fault of his own, he may be granted restitutio in integrum, provided that five years have not already passed since the public notification of the exclusion order.
Status: 13.08.2024
Editorially responsible for prodecure description: Bayerisches Staatsministerium der Justiz
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