How do you get a lien?

Lien

ALien Latin pignus is a limited real right of the pledgee to a thing or a right, which is usually created to secure a claim. If the obligee fails with his claim, he can satisfy himself by realizing the pledged object. The debtor of the claim and the pledger do not have to be the same person. On the other hand, pledgee and creditors of the claim coincide.

Classification

One differentiates:

  1. according to the type of order
    1. contractually bound lien also called mortgage lien
    2. Lien created by law
    3. Lien
  2. according to the type of its pronouncement in legal transactions
    1. Lien, pronouncement through possession
    2. Register lien Announcement in a register with public belief
  3. according to the type of the pledged item
    1. Real estate lien
    2. Lien on movable property
    3. Lien on rights
  4. according to the connection with the right to be secured
    1. accessory liens
    2. non-accessory liens

In the case of accessory liens, the creation, transfer and existence of the lien depend on the claim. Non-accessory liens are also regularly ordered to secure a claim. However, they lack a comparable property law link with the claim; their fate is only linked to the claim via a contractual security agreement under the law of obligations.

In contrast to “full right” property, the lien is a limited real right. It secures a debt law claim z. B. from loan through one thing. The pledgee, i.e. the creditor of the claim, in favor of which the lien has been established, has thisRight to obtain satisfaction from the sale of the item in the event of non-performance at the due date. In bankruptcy he has according to§ 48 KO Bankruptcy rules aSeparation right: The pledged item is outsourced from the bankruptcy estate and thus withdrawn from the proportional realization in bankruptcy, which means that the lien can remain in full.

The lien canlegally byPledging,judicial byGarnishment ordirectly from the law arise.

Through hisreal In terms of property law quality, the right of lien differs fundamentally from surety and the assumption of debt. In both of these cases the liability fund is merely expanded by adding further possible debtors; but with this onepersonal Securing it can happen that even the surety or the accession debtor becomes insolvent. In the case of a lien, no person is liable, but the pledged item, even in bankruptcy, in full.

All things within the meaning of § 285 ABGB can be pledged, i.e. not only physical things but also rights. Note: If money is pledged, the pledgee must not use it, he must keep it separate from his money in order to prevent the acquisition of property through mixing and must return exactly the same notes and coins. That is why there is an irregular pledge of money pignus irregulare. The pledgee becomes the owner and is allowed to use the money and only has to put back the same amount. The legal nature is still disputed. Components and accessories are considered pledged in case of doubt.

Basic principles

  • Accessory: The lien only exists insofar as there is a claim to be secured. If the claim has been met, the lien expires automatically; no special mode is required; gives z. B. If the pledgee does not see the thing back after the claim has expired, the owner, i.e. the previous debtor, can claim his property with the property claim § 366 ABGB without the pledgee having a right to possession - this is what the pledgee has with the upright lien - can counter.
  • Specialty: The lien always relates to certain things. So a person's property cannot be pledged as such.
  • Undivided pledge liability: The deposit is liable for theentire Advancement. Accordingly, it is liable until the entire claim has expired. This is intended to give the debtor the incentive to meet the claim in full.
  • Title and mode: Like any right in rem, there is also a need to establish a right of lien
    • Title z. B. Pledge contract and one
    • Mode. With the latter - as with the acquisition of property - a distinction is made between movable and immovable property:
      • moveable things: That applies hereBargaining chip principle; the pledgee must own the property in order to maintain the lien.
      • immovable thing: The lien must be entered in the land register, which creates a mortgage, i.e. a lien on immovable property.
Besides the one just describedderivative Acquisition is also thatoriginal Acquisition of the lien, analogous to § 367 ABGB, 3rd variant, acquisition from the shop steward possible.

Pledge

In contrast to the acquisition of property, certain forms of transfer of property, such as the constitution of property, are out of the question for reasons of publicity. However, the handover is possible. The transfer by characters z. B. Keys for warehouses are permitted - as a subsidiary form of transfer of ownership if physical handover is impossible or impractical.

Easily explained: Pledged movable property, e.g. B. Securities, goods, etc. The pledge only becomes legally effective through physical handover, symbolic handover, handover by declaration or by assignment of possession.

When a motor vehicle is pledged, it is not enough to hand over the type certificate, as the handover of the motor vehicle is neither impossible nor impractical. The pledge principle applies here without restriction, so that the pledgee must actually take over the vehicle in his possession. In practice, motor vehicles are therefore unsuitable for securing bank loans, as the bank would have to take the motor vehicle into safe custody in accordance with what has just been said, but banks are generally not prepared to do this.

mortgage

The mortgage, also known as a real estate lien, is a lien on an immovable object, i.e. a property. It is justified by an entry in the land register, specifically in the C-sheet load sheet of the land register deposit. Before registration, the land registry court needs proof of the existence of the claim to be secured. Since the pledgee does not become the real owner of the thing, which in practice would also run counter to the purpose of the mortgage, this is a non-possessory pledge.

There are special features for the following special types of mortgage:

Maximum amount mortgage

It occurs in particular when a bank grants a credit line, but wants collateral in return for it. With her it comes to the incorporation of a lien up to a certain maximum amount. Up to this amount, the rank is "used up" - regardless of whether there is actually a claim up to the maximum amount.The lien only exists up to the amount of the claim, but the mortgage up to the maximum amount. This also shows the possible difference between the lien and the mortgage. Registration currently costs 1.2% of the deposit amount.

The maximum amount mortgage weakens the specialty principle in the lien insofar as the lien is not granted to secure a certain claim, but the lien z. B. can also be granted to future claims - the prerequisite is, however, that these are at least sufficiently determinable z. B. all claims for a specific legal reason!

A subtype of the maximum amount mortgage is the so-called "deposit mortgage", where a mortgage is granted for future claims for damages or warranty rights.

Simultaneous mortgage

Several properties are fully liable for one claim. If the debtor is in arrears, the pledgee has the right to choose which property he wants to satisfy himself with - he can also partially claim several properties!

In the internal relationship, however, the right of recourse of the person who has been claimed must be affirmed - or those subsequent creditors who did not get a chance through the realization of “their” property are entitled to a mortgage on one of the “remaining” properties .

Debt stripped owner mortgage

As explained above, a mortgage exists until it has been canceled from the land registry. If the claim to be secured and thus also the lien by virtue of an accessory has expired, the mortgage exists until it is incorporated. This means that the former debtor now has the opportunity to use the pledge obtained through this mortgageRescheduling to use. With this rank he can now secure another or new claim. However, the danger of the owner mortgage with no claims is that it is possible to acquire the mortgage in good faith based on the principle of trust in the land register. As long as the mortgage is entered in the land register, a bona fide third party can acquire the mortgage by relying on the land register.

In order to avoid this danger, the owner of the property has the option of including a priority reservation in the land register on the released pledge upon deletion, which is valid within 3 years and gives the owner time to approve the pledge with another claim occupy.

The pursues similar purposesconditional lien registration, which is limited to 1 year.

Pledging of rights

Rights, i.e. immaterial things, can also be pledged. Similar to the sale of receivables, the debtor must be notified of the pledge as an act of publicity.

The pledging of a receivable is also, for example, the pledging of “a savings book”. Here the value of the physical thing is irrelevant because it is minimal, it is all about the claim against the bank embodied in the savings book.

In theLegal session, So an assignment resulting directly from the law on the z. B. The surety who stands for the debtor, there is also an "automatic" transfer of the lien. In contrast, an ordinary, i.e. legal z. B. by purchase) subsequent assignment of the normal lien mode z. B. Handover.

Alternatives

As an alternative to the lien, there is theTransfer by way of security or theSecurity assignment. Another form of security in rem is thatRetention of title.

Published by: RechtEasy.at
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