A creditor can extinguish a landowner's right of residence if the landowner is insolvent. This was recently decided by the Federal Court of Justice (BGH, V ZB 64/21). In this case, a property owner of a developed plot of land contributed it to a civil law partnership (GbR). The GbR was in turn entered in the land register and the right of residence was also entered.
Insolvency proceedings were later opened against the owner of the property. As part of the insolvency proceedings, the creditor wanted to sell the property and have the residential property right deleted. The property owner lodged an appeal against the deletion of the right of residence. This was rejected by the court of appeal. The property owner then lodged an appeal on points of law.
However, the BGH also rejected this, citing various reasons. Among other things, the V. Civil Senate of the BGH had already ruled in 1964 that "a limited personal easement is attachable if the owner of the property and the beneficiary are the same person". Furthermore, with regard to attachability, it does not matter "whether the residential right is created from the outset as an owner's residential right or whether there is a subsequent combination of residential right and ownership in one person".
Source: bundesgerichtshof.de
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