Out is out – if there is no clear rental agreement!”

BGH strengthens creditors' rights in partition auctions: Only evident ownership rights count

The following scenario frequently arises in partition auction proceedings under inheritance law: A co-heir occupies the property being auctioned and, after the knockdown, attempts to evade the purchaser's access by claiming tenancy rights. The Federal Court of Justice clarified this in its decision of December 18, 2024 (VII ZB 30/23): In the clause granting procedure according to Section 93 Para. 1 ZVG, only those possession rights count which are beyond any reasonable doubt – i.e. evident - are.

The decision effectively puts an end to tactical delays caused by the mere assertion of a tenancy. Simply presenting a tenancy agreement is not sufficient. Rather, the resident must prove that the testator granted them use of the property under a genuine tenancy agreement prior to the award – ideally through rent payments and other reliable documentation.

Practical implications:

• Protection from enforcement only exists in cases of obvious ownership rights. Merely demonstrating this is not sufficient.
• Creditors benefit of accelerated enforcement proceedings without abusive obstructions.
• Third parties with claimed ownership rights must choose to take legal action under Section 771 of the Code of Civil Procedure.

Recommendation for creditors: Check ownership early, secure evidence, and ask specific questions during the hearing. Because: those who are prepared, enforcement is faster.

Conclusion: The Federal Court of Justice (BGH) creates clarity. Only those who evident Anyone who can prove ownership rights will be heard in the clause granting procedure – a strong signal against abuse of rights and for efficient enforcement.