Supreme Court | 1 Ob 198/18a | 05.03.2019

If a loan is granted because the lender assumed on the basis of an inspection of the land register that the debtor has an unencumbered property and the lender fails to have security in rem granted on the property, there is no claim for official liability if the land register court erroneously failed to make an entry preventing executive realization.

The plaintiff requested from the federal government under the title of official liability for the damage it suffered as a result of the loan default because it would not have granted the loan if the prohibition of encumbrance and sale had been correctly entered.

The plaintiff granted a loan for which the managing director of the borrower assumed personal (joint) liability. The decisive factor for the granting of the loan was that the managing director owned a property which, according to the extract from the land register obtained by the plaintiff, would be available for (future) executive realization. The fact that this property was actually subject to a prohibition on encumbrance and sale was not apparent due to an error by the land registry court, which did not record this. After the borrower went bankrupt, the plaintiff wanted to have the property of the managing director sold by executive order. The land registry court noticed its mistake and corrected the status of the land register, insofar as the agreed prohibition of encumbrance and sale was now entered in the original ranking, which prevented the intended realization of the property.

The Supreme Court confirmed the decisions of the lower courts dismissing the claim. It is true that it is established that the loan was only granted because the plaintiff had relied on the incorrect land register status (namely the absence of the entry of the prohibition of encumbrance and sale), so that the causality of the incorrect land register entry for her damage is given. However, the unlawfulness connection is lacking for the claim for compensation because the obligation to maintain the land register correctly and completely is only intended to protect those persons who own rights entered in the land register , directly seek to establish them or otherwise have such rights at their disposal and thus participate in land register transactions. The fact that the error-free keeping of the land register also effectively “favors” persons who do not dispose of rights in the land register, but who otherwise act in reliance on the status of the land register in legal transactions and make it the basis of their decision, is a mere side effect that does not lead to any liability (in the absence of a connection of illegality).