What is the GST for the photocopy
The revision appeals are admissible and justified because the appeals court wrongly accepted the requirements for a correction of the land register according to § 136 Abs 1 GBG. Art I of the constitutional (VerfGH of March 9, 1988, G 144/87) law of February 24, 1905 RGBl 1905/33 ordered that road, water supply and giant timber servants in Vorarlberg from being entered in the land register were excluded. According to Art II leg. Cit. entries of such field easements were ineffective. The fact that the alleged road servant, whose incorporation is being applied for by way of the correction procedure, should not have been granted in favor of an agricultural property, but rather a municipal building (bakery) is irrelevant for the qualification as a servitude affected by the entry ban of the Vorarlberg field easements law (RIS justice) RS0037968; see RS0011555; see RS0038550; see RS0038553; Kiendl-Wendner in Schwimann ABGB³ § 474 margin no. 1). An entry of the servitude that is illegal in this sense would have been incurably void in principle in an official procedure to be deleted as inadmissible (Hinteregger in Schwimann ABGB3 before Sections 431 to 446 margin no. 16, Feil GBG³ margin no. 1 f).
Art I Paragraph 2 of the Vorarlberg Field Easiness Act concluded
expressly the protection of good faith in the sense of § 1500 ABGB,
why an unencumbered acquisition based on the protection of good faith
would have been eliminated in any case (see Feil loc. cit. § 12 margin no.28; 2 Ob 704/87 =
JBl 1988, 789 = NZ 1989/108 [Hofmeister]; RIS Justice RS0037962 [T1
On April 1, 1997, Art V of the 1997 amendment to the land register (GB Nov 1997, Federal Law Gazette I 30/1997) came into force, which in its paragraph 1 repealed the Vorarlberg field easements law and thus removed the prohibition of entry relating to such easements, in its paragraph 2 but expressly ordered that to field easements acquired before April 1, 1997, among other things, Art I, Paragraph 2 (exclusion of the protection of good faith) is to continue to apply. For these considerations alone, the bona fide unencumbered acquisition brought into play by the appellate appeals company is ruled out, which is why there is no need to discuss the protection of trust in the converted land register (RIS Justice RS0060909; RS0060901) standardized in Section 21 (3) GUG after the six-month edictal period has expired .
It would also be wrong to argue that the conversion of the land register in 1985 would be equivalent to the deletion of book law. The expiry of the six-month edictal period only excludes the possibility of correction by including an entry in the converted land register that was no longer stored at the time of the initial registration, but does not result in the expiry of the book law concerned and only has
Effects on the material disclosure principle (4 Ob 506/91 = SZ
64/18 = ecolex 1991, 680 [Hoyer]; 5 Ob 149 / 03b).
However, the objections of the applicants for revision appeals to 1. the obviousness of the inaccuracy or its evidence by public documents, 2. the exact designation of the easement within the meaning of § 12 para 2 GBG deserve attention.
A correction in accordance with Section 136 (1) GBG is only possible if the land register does not correctly reflect the actual legal situation, i.e. a change in the law has occurred outside of the accounts (even without an entry legally effective), but has not yet been carried out in the accounts and the Correction required entry only has declarative significance (Feil loc. Cit. § 136 Rz 1; RIS-Justiz RS0061010; RS0060992; RS0079847 [T1 and 2]). Proof of the inaccuracy of the entry is sufficient as a basis for the correction, which takes the place of the documents otherwise (§ 26 ff GBG) required for an entry (Feil loc. Cit. § 136 Rz 1). The correction presupposes that the inaccuracy is evident or proven by public documents (RIS-Justiz RS006010; see RS0060992). As far as this proof can be provided by the declaration of a party, a court or notarized private document is sufficient.
Obviousness is an inaccuracy if it results directly from a law or from the evidence of certain facts in connection with the law, e.g. if the transfer of rights alleged by the applicant to the associated universal succession to the assets of the legal predecessor results directly from the law ( RIS Justice RS0061010). The principle laid down in Section 269 of the German Code of Civil Procedure, that facts that are evident at the court do not require any evidence, are not to be used in the land register procedure or only to a very limited extent. In making a decision, the land register judge only has to refer to the documents presented, the land register and the other land register aids, but not other official files or his official knowledge (RIS Justice RS0040040 [T2]). The decision of controversial factual and legal issues at the expense of a book holder can only be made in an adversarial procedure (5 Ob 204 / 03s).
Public documents within the meaning of Section 136 GBG are all public documents (Section 292 ZPO) and not just the public documents in the sense of the exhaustive list of public documents suitable for incorporation in Section 33 GBG (Feil aa0 Section 136 Rz 1; Marent / Preisl Land register law² § 136 GBG margin no. 2). In order to be considered a public document within the meaning of § 292 ZPO, documents must have been issued by a public authority, drawn up by a person with public faith or declared as a public document by special legal provision (Bittner in Fasching Komm² § 292 ZPO margin no. 20 ). Certified copies (e.g. by a notary in accordance with § 77 NO) of public documents are also to be qualified as such within the meaning of § 292 ZPO (Bittner loc. Cit. Margin no.38). According to these criteria, the alleged inaccuracy has neither been evident nor proven by public documents. As proof of the alleged servitude, the applicants have only submitted non-authenticated documents in photocopy, from which the debit of EZ 66 with the servitude in favor of EZ 1304 in each case of GB ***** does not emerge in a way that does not exclude any doubt. The submitted excerpt from the land register with the order book number 152/73 concerned EZ 507 with the building lot 598 and the property designation Wohnhaus Bergstrasse house no 4 and courtyard. The easement of the driveway (entrance) via the courtyard in building plot 598 was incorporated into COZ 2 in favor of EZ 66 according to this document. The building permit submitted on June 9, 1975 (Appendix I) related to the construction of a six-storey residential and commercial building, including a basement and underground car park, on building sites 154 and 598 of KG ***** (Appendix E). It is obvious that the construction of such a new building was associated with a change in the construction on the affected properties (the courtyard). EZ 507 no longer exists in the land register *****. EZ 1304 consists of lots 154 and 598 and has the lot address *****. According to the photocopy of the excerpt from the land register relating to EZ 66 with order book number 2674/85 (Appendix A), the easement right of the driveway (entrance) via the courtyard in Bp 598 was incorporated into EZ 1304 for A 2 OZ 2 in favor of EZ 66 with property number 156 . This disclosure in the inventory sheet of a ruling property is intended to show the entry existing elsewhere; However, it does not have any legal effect; it is of no material significance in terms of material law (Feil loc. cit. § 12 margin no. 46 mN). According to Section 12 (2) GBG, easements that are limited to certain spatial limits must be precisely described. If the easement is restricted to certain spatial limits (here courtyard), the scope of the right to be entered must always be specified as clearly as possible in addition to the content, which may have to be done by submitting a plan. However, this was not included with the application.
Due to the doubts presented as to whether and, above all, to what extent the alleged servitude still exists, the coveted entry in the way of the "simplified" correction procedure according to § 136 GBG cannot be considered Paragraph 1 GBG, which is intended to avoid unjustified shifts in rank (RIS-Justiz RS0111176), cannot be eliminated by means of an improvement procedure, especially since there is no application of an improvement procedure in the sense of § 88 GBG. This only relates to § 87 Paragraph 1 GBG in Original land register documents to be submitted, these are those on the basis of which a constitutive entry is to be made (RIS Justice RS0061070; see RS0061050).
Based on these considerations, the justified revision appeal was to be followed. The decisions of the lower courts had to be changed in order to reject the application.
According to the established case law of the Supreme Court, no reimbursement of costs takes place in the land register procedure because, due to the unilateral nature of the appeal procedure in land register matters, this procedure is not designed for the enforcement or defense of conflicting parties' interests and the basis of an obligation to reimburse costs required in Section 78 Foreign Trade Act is missing (5 Ob 135 / 05x; 5 Ob 197 / 05i; 5 Ob 198 / 05m). The contrary view of the appellants for an appeal is no reason to depart from this case law.
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