A NOTICE: This text does not represent legal advice or can replace it.
If a property is sold and an insolvency proceedings against the seller is then opened, this can lead to complex legal questions. The central question is: If the seller is entitled to open claims from real estate sales, And if so, How are these treated in the bankruptcy proceedings? This article illuminates the relevant legal foundations and possible scenarios.
1. Legal basis
The treatment of claims in connection with real estate sales depends on the provisions of the bankruptcy code (Inso). Above all, crucial are:
- § 38 Inso (Insolvency claims): Any claim is an insolvency claim, which was created before the opening of the insolvency proceedings. Such claims must be registered for the insolvency table.
- 47 Inso (Submit rights): Assets, that do not belong to the bankruptcy estate, can be separated from the creditor.
- §§ 129 ff. Inso (Contestation): The insolvency administrator can contest legal transactions, who took place before the bankruptcy opening and the creditors disadvantage.
The temporal course of transactions and the insolvency proceedings is crucial for the legal classification.
2. Time of sales and the claim
The legal treatment depends significantly on it, when the real estate sale took place and whether the claim from this sale (z. B. Payment of the purchase price) was created before or after the opening of the bankruptcy. The following scenarios result:
up) Sales and complete purchase price payment before the bankruptcy opening
The seller has already received the purchase price completely, Before the bankruptcy proceedings were opened against him, As a rule, there is no longer any claim. The purchase is complete, And the received payments are part of the seller's assets. However, the insolvency administrator can check, whether the payment is contestable, especially if:
- Payment has been made in the last three months before the bankruptcy is opened (§ 130 Inso, Contest for creditor disadvantage).
- The purchase price was inappropriate (§ 134 Inso, Contest for free performance).
b) Sale before the bankruptcy opening, Purchase price partially or not paid at all
In this case, the seller has an open claim against the buyer. This requirement is an insolvency claim according to § 38 Inso, Since it arose before the opening of the bankruptcy proceedings. The seller must:
- Register the claim for the bankruptcy table.
- So calculate, that the claim is only proportionate (According to the bankruptcy rate) is satisfied.
c) Sale after the bankruptcy opening
If the sale takes place after the opening of the insolvency proceedings, the transaction is handled under the supervision of the insolvency administrator. In this case, the purchase price is part of the bankruptcy estate and is not directly available to the seller.
3. Land register and security rights
A key factor is the land registry situation. The seller has agreed security rights, this can strengthen its position in the bankruptcy proceedings:
- Problem: If a resolution was entered, If the property remains legally secured until the purchase price payment. The seller can refuse to transfer the property, Until the purchase price is paid.
- Reservation: Some purchase contracts contain clauses, who grant the seller a right of withdrawal, If the buyer does not pay the purchase price. However, this right can be restricted in bankruptcy proceedings.
Without such security rights, the claim for the purchase price is treated like a simple bankruptcy claim.
4. Special regulations: Support and secretion
up) Separation (§ 47 Inso)
The seller has deposited the purchase price on a trust account or made another security agreement, Can these funds be separated from the bankruptcy mass. In this case, the seller has direct access to the money.
b) Secretion (§ 51 Inso)
If the seller is a basic lien (z. B. A land charge) has granted the property, he can be preserved as a secretion of a secretion. However, this only applies to the secured part of the claim.
5. Contestation according to the bankruptcy regulations
The insolvency administrator has the right, to contest certain transactions, To enlarge the bankruptcy estate. The following contestation of contestation is relevant in connection with real estate sales:
- Deckung congruent (§ 130 Inso): Payments, which have been made in the last three months before the bankruptcy opening, can be challenged, If you disadvantage creditors.
- Free services (§ 134 Inso): The property was sold under the market value, this can be contested.
- Intentional disadvantage (§ 133 Inso): If the sale took place with the destination, To disadvantage creditor, the entire transaction can be contested.
6. Recommendations for sellers
In order to secure claims from a real estate sale in the event of bankruptcy, Should sellers take some precautionary measures:
- Contractual fuses: Security rights such as a release notice or reservations in the purchase contract can protect against default.
- Trust accounts: Paying the purchase price via a trust account can help, to secure the money from the bankruptcy estate.
- Examination of the buyer: The creditworthiness of the buyer should be checked before the sale is completed, To minimize the risk of a loss of claims.
- Timely registration: Open claims should be registered on time for the bankruptcy table.
7. Conclusion
The bankruptcy of the seller after a real estate sale is a legal challenge. The rights of the seller depend heavily on the time of the sale, the type of claim and the agreed security rights. Legal advice from a specialist lawyer for insolvency law can help, To assert claims and to secure the best possible position in the bankruptcy proceedings.
