01.11.2023 | KPMG Law Insights

The MoPeG is coming – Here’s how GbRs with real estate should act now

On January 1, 2024, the German Act on the Modernization of Partnership Law (MoPeG) will come into force. Then the civil law partnership (GbR) has legal capacity under certain conditions. The MoPeG also introduces a company register. This has significant implications, especially for real estate limited partnerships.

The MoPeG modernizes the law governing partnerships and contains a large number of new rules for OHGs, KGs, GmbH & Co KGs and GbRs. Among other things, it confirms the legal capacity of the GbR. It can therefore be the bearer of rights and obligations itself. The prerequisite is that it participates in legal transactions and does not act as a purely internal company.

The introduction of a company register for GbRs is also new. This has significant implications for companies that own real estate or wish to acquire real estate in the future (real estate civil law partnerships): In future, they will have to be entered in the new company register for this purpose. The same applies if the civil-law partnership wishes to acquire or change further rights that are to be entered in the land register.

In order to continue to be able to dispose of real estate and rights registered in the land register flexibly and at short notice, real estate civil law partnerships should deal with the entry in the company register in good time. They should also be sure to check whether the articles of association need to be adapted to the new legal situation.

When it is necessary to register the real estate civil partnership in the company register

In principle, there will be no legal obligation for the GbR to be entered in the company register. According to § 47 para. 2 GBO n.F., however, land register entries of a GbR will in future only be made if the GbR is entered in the register of companies. This indirectly leads to a compulsory registration.

In the future, GbRs that wish to be newly entered in the land register, for example in the course of acquiring a plot of land, must first be entered in the company register. Even so-called existing companies, which are already entered in the land register as beneficiaries, can apply for changes to their rights entered in the land register only after entry in the company register. This means, for example: The acquisition or sale of a plot of land, the cancellation of a land charge or the creation of a right of way in the form of an easement require the prior registration of the real estate partnership under civil law in the companies register.

The registration has many advantages

The entry in the register brings many advantages, especially in real estate transactions: In the land register, the company is only entered with the register details, the individual shareholders are no longer named there. In the event of a change of shareholders, a land register correction is thus no longer necessary. Changes in the number of shareholders are only recorded in the company register.

In the event of a change of status, for example from a GbR to a KG, it is easier to prove that the newly formed KG is identical to the previous GbR, because in the future the change will be entered in the company register of the source GbR and in the commercial register of the target KG.

There are also advantages for the acquisition of real property-related rights of real property civil partnerships: as soon as the real property civil partnership is registered in the company register and entered in the land register as a registered company, the acquirer enjoys good faith protection. Based on the entries in the register, he can trust that the company exists and that the persons named therein are authorized to represent it.

The new register solution for the GbR thus leads to noticeable simplifications in business and legal transactions as well as to more legal certainty, particularly with regard to the real estate GbR. From the real estate industry’s point of view, this is to be welcomed, even if registration is a little more onerous.

This is how the application for registration in the new company register works

The application for registration of a real estate partnership under civil law (Grundstücks-GbR) must be made electronically by all partners in notarized form. The application must contain the following information:

  • on the company: name, registered office and address in a Member State of the European Union,
  • for each partner in the case of natural persons: Surname, first name, date of birth and place of residence,
  • for each partner in the case of legal entities or partnerships with legal capacity: Company name or name, legal form, registered office and, where provided by law, competent register and register number,
  • Indication of the power of representation of the shareholders, and
  • Assurance that the company is not already registered in the Commercial Register or in the Partnership Register.

The registered GbR bears the name suffix “eGbR”.

Transitional provisions for operations until the end of 2023

It is important to note that the old law remains applicable to such transactions for which a land registration application was filed and the corresponding agreement or grant was declared before January 1, 2024. As of the turn of the year, applications to the company register are possible at the district courts.

Review and adaptation of the articles of association

Before applying for registration, it is essential to check to what extent the articles of association need to be adapted to the new legal situation.

The GbR undergoes a fundamental reform as a result of the MoPeG. It is therefore not unlikely that the existing partnership agreement contains provisions which are now unsuitable for the partnership and its shareholders or even become ineffective. Therefore, it should be determined and evaluated individually for the respective company, taking into account its shareholder structure, its purpose and its range of activities, where adjustments to the articles of association are necessary and reasonable. In our view, important provisions that require careful drafting in the case of a real estate GbR are, in particular:

  • Transferability of shares in the company
  • Approval requirements for amendments to the articles of association
  • Management and emergency management
  • Powers of representation
  • Entry of new shareholders, withdrawal of shareholders

This is how GbRs should act now

In order to remain legally capable of acting, the partners of a real estate partnership should deal with the registration of the company in the company register in good time. Waiting until an entry in the land register is pending is not advisable, as this could delay urgent property transactions.

Before registration, the articles of association should be checked and, if necessary, adapted to the new legal situation. For this purpose, KPMG Law has developed a standardized audit routine, the “KPMG Law MoPeG Audit Center“.

Particular attention should be paid to land transactions at the end of 2023 involving GbRs. Here, the individual execution steps, for example the filing of the land register applications, will have to be precisely timed in order to avoid delays in the execution of the land transaction.

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