Social housing construction in Berlin: Who clings to the investors?

(openPR) - after the decision of the Federal Administrative Court to reject the revision in things �connection promotion for the social housing construction� in Berlin hundreds closed real estate funds with approximately 15,000 draughtsmen before a Fiasko stand. The personal insolvency threatens many investors, who drew such funds several times.

Which teachings can pull fund investors from this disaster

Traditionally real estate investments of fiscal promotions and other national subsidies were led in Germany. That applied in particular to citizen of Berlin housing fund. The shears between the �costinduced rents� (up to 19 Euro/qm) and the rents actually paid by the tenants (4.50 euro square meter) are so large that the gap without promotion cannot be closed.

Investors of closed real estate funds in legal form of a society of civil right are requested due to their adhesion to additional payments, which exceed the framework of the financially possible one with many concerning.

Besides for it by a trustee Schuldanerkenntnisse over certain partial amounts, which on their financial participation at the society depended, were delivered and subjected to the immediate execution into their entire private possession. The financing banks received in such a way apart from the land charges at the fund real estates further (personal) collateral.

This immediate adhesion with the private possession was masked represented in the folders frequently wrongly or. Thus e.g. frame was represented that in the worst case first the real estates are used by the banks and afterwards only the private possession of the partners.

The formulations read e.g. frame:

�With their other fortune they cling quotal according to their financial participation in the society. As far as creditors are secured by mortgage liens, first the real estate - as also for public loads - clings altogether. Beyond that the partners cling only quotal according to their participation. �

or:

�In the management phase additional payments can become necessary, if not the rents are obtained, which are necessary for the covering of the costs and the repayment at least�. In the long run a proportionate debt reconciliation is necessary, if during the sale of the real estate the price is not obtained, which is necessary for the covering of the commitments. If individual partners do not carry for example the additional payments out necessary because of missing renting incomes, then the loan-granting bank from the land charge on society property can execute�. The remaining, additional payment-ready partners can repel the enforcement in this case finally only by the fact that they do not transfer the portion of the defaulting partner and its liability to pay an additional amount� a personal loan portion not covered by the material value exist in the past could so far each participation at prices above the debt value are sold. �

Regularly however in the land charge documents the partners were subjected such to the adhesion that the banks can take her up immediately and without previous recourse to of the fund objects.

Additionally firm adhesion sums were agreed upon. These have the consequence that the banks can execute the fixed sums without the repayment achievements of the fund companies on the loan agreements to consider at any time to have.

These wrong and veilful data in the folders remained today unfortunately hidden for many partners until. Therefore the interest of investor was directed toward the omission of the connection promotion by Land Berlin.

In addition, complaints against the financing banks on statement of the inefficacy of the loan agreements and (threatening) the execution became popular. However confirmed the Federal High Court in its decision of 17.10.2006 (XI ZR 19/05) again its bank-friendly iurisdiction.

The demand establishment partners became possible the partners now by the decision of the Federal High Court of 23.01.2007 - XI ZR 44/06:

Partners so far of the adhesion sequence and the fixed adhesion sums the nothing knew, can make still their folder liability claims valid, without the objection of the Verj�hrung opposes its requirements.

Adhesion opponents are the contracting parties/partners of the investor, whom created the fund. These persons the investors are frequent unknown or however their role remained so far hidden for the investors.

In several of our Kanzlei erstrittenen judgements became for investors against the establishment partners von GbR - fund because of the folder errors mentioned of claims for damages expenditure-judges. At the same time the establishment partners were obligated to exempt the investors from the commitments opposite the banks.

The courts argued:

�The folder is to that extent incorrect, when it over the liability risks of the joining partner obtain an unfounded impression. By the use of the word �first� the conclusion close is put that in case of of payment arrears the personal fortune of the partners von Zahlungsr�ckst�nden is once not concerned only. The formulation creates expectation with the addressee of the folder that the risk of a personal demand threatens only then if the society comes as such into liquidation and property is used (see Court of Appeal, judgement of 28.3.2006 to the Az: 27 U 106/05 to a comparable case). The suggested adhesion sequence deviates from the actual regulation of the loan agreements. Because it is indisputably that in the loan agreements with the banks no agreements are contained, the one such adhesion sequence (first utilization of property, then only the personal recourse to of the partners) plans. Since the bank can access sonach the private possession of the partners immediately, are the efficient and/or - partners the access of the banks consent suspended, without they can hope for it or trust that property for them and/or the funds remains. If the bank could fall back against it only after utilization of property to the personal adhesion, the partners would have to fear a personal demand only in the worst case, i.e. if nothing more were to be saved anyway (see Court of Appeal, aaO)�

Even if one would accept only an ambiguity and no incorrectness of the folder, a lack of clearing-up would be to be affirmed in the result. Otherwise initiators would have and folder responsible person a charter there that they can arrange third without liability risk by consciously unclear formulations to the entry to an investment�

In addition the folder is also to that extent incorrect, when actually no personal quotale adhesion of the individual partner insists on the respective loan commitment, but an adhesion at amount calculating by the initial loan in accordance with the ratio itself. The personal adhesion on a firm partial amount contains a further substantial disadvantage in relation to the acceptance entitled after the organization of the folder and the documentation: Even a priority utilization of property would not reduce the height of the personal amount of adhesion (see BGH, NJW 1997, 1580f.). After the remarks in the folder and the documentation the investor could go out however with it, he in case of a failure personally only on �the remaining remainder, will cling.

The aforementioned circumstances represent serious deviations of the actual condition regarding a personal adhesion of the individual partner compared with the situation represented in the folder and documentation. The deplored ones turn here nothing substantial� �

First step for requirement asserting is the provision of information!

The fund management should be requested under period setting to as a copy send the land charge order documents with personal adhesion deed of submission. Each partner of a society of civil right has this right of information after � 716 BGB. On head wind can be counted, if the management of the fund consists at the same time of the establishment partners. Therefore a specialized lawyer should already for this generally be assigned.

Afterwards it should be examined then who establishment partner is whether the bank without restrictions can execute and whether actually firm adhesion ratios were agreed upon against the data in folders and application forms.

Almost dangerously it can become, if the partners are informed in the context of the pervasive reorganization negotiations by fund management and banks about the true adhesion modalities. This happens frequently therefore, around the partners Sanierungsbeitr�ge abzun�tigen. Then still even if the establishment partners are well-known, the necessary knowledge is present and the run of the short three-year period of limitation begins.

Thieler attorney company ltd.
Attorney Jens Reime
At the Perl oh mountain 3
86150 Augsburg
Tel.: 0821/34999100
Fax.: 0821/34999101
E-Mail: reime@rechtsanwalt-thieler.de
Internet: www.rechtsanwalt-thieler.de

The Kanzlei is active for decades in the emphasis in the investment right. In the locations Munich, Augsburg, star mountain, because home, wolf advice living and Passau find competent consultation in the different right areas to investor. A special emphasis lies in the treatment of participation in closed real estate funds in the legal form of the GbR and kg.

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