Real Property Law in the Unification Treaty – Merging Two Opposite Legal Systems

Abstract

This essay outlines how the German Unification Treaty comprehends real property merely as a problem of transition provisions and of restitution. The Treaty therefore does provide for a small set of transition provisions similar to those provided for in 1900 for the introduction of the German Civil Code and for a restitution Act. More by instinct than by reflection or knowledge the Treaty also comprises a clause reserving later legislation on reorganizing property law. Soon after Unification having come into force this clause proved to be essential. Literally day by day, the gap between the written German Democratic Republic (GDR)-law and the real practice became more and more apparent. The difference between rights in rem and contractual rights had vanished in the GDR-law to an extent that, in the end, in hundreds of thousands of cases people did not provide at all for the necessary legal fundament for building small houses, big housing blocs, factories or public highways. Nearly every day people wrote letters to the Federal Ministry of Justice describing cases that could not or at least not satisfactorily be resolved with the instruments of the existing law. Therefore, the German parliament had to close these gaps and reorganize the rights and obligations of the people and enterprises using other persons' real property.

It accomplished this by enacting in a quick sequence a series of statutes reorganizing property law. Then it was up to the public notaries and the courts, especially the civil senate of the German Federal Court of Justice and the 7th and 3rd revision senate of the Federal Administrative Court to make these laws in practicable. Although the more difficult cases on reorganizing real property relations come up for decision recently, the vast majority of cases have been finalized. This has also been a challenge for law libraries. First, they had to withstand the general trend to throw away their old stocks, which at a second glance could be very useful, both for creating the necessary reorganizing provisions and for assisting the decisions of the courts on these new rules. Then they had to decide how to provide to their Courts, lawyers or professors the necessary periodicals, commentaries and monographs. Now these transient stocks continue to be necessary for the decisions of the courts in the actual cases – and the preparatory work on writing the legal history.