This means that judicial content control is only possible with regard to the transparency requirement (307 Paragraph 3 Sentence 1 BGB, Paragraph 3 Sentence 2 in conjunction with 1 Sentence 2 BGB). If the security agreement does not fail as a surprising clause at the inclusion control (305c para. 1 BGB), it is effective (306 para. 1 BGB).[26]
Another distinction is needed in terms of the type of loan security. Accessory loan collateral is the name given to those loan collateral for which the effectiveness and extent of the collateral depend on the existence of a loan claim. Accessory securities are already defined by law as security interests, so that the security agreement has to provide less for these than for non-accessory securities. The security agreement therefore does not need to contain a special claim on the part of the security provider to the return of the loan security if the security purpose is no longer applicable, because this is already achieved by the legally provided accessory to security.[23]
If you conclude a contract for such a loan, the special protection provisions of consumer loan law do not apply to you. You also have the right of withdrawal in accordance with 355 BGB not to. You should also take a close look at the cost and interest rate of the loan before taking advantage of such an offer. If you have any doubts about the legality of a loan offer, write to BaFin. Your information will help BaFin to uncover any violations of relevant regulatory provisions and to take action against them. Please also read the information on how to lodge a complaint with BaFin.
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Can largely[7] man[8] say that the development of real credit coincides with the development of mortgage banks. The state regulation of mortgage banks and their supervision in the last century also led to the development of banking supervisory requirements for the valuation and handling of the credit business. The legal connection was created by 11 and 12 of the Mortgage Bank Act, which came into force in 1900. The real estate loan was limited by law to the objective security value. This was done through the supervision of the mortgage banks, thus the first state banking supervision in Germany. The intensity with which the restriction was enforced shows the importance of this particular technique of providing credit
Security land charges, security assignments or security assignments as non-accessory (so-called. With these types of security, this must be made up for in the contractual security agreement. In addition to the agreement of a security purpose[24] In particular, it must contain clear regulations on the (partial) return of the loan collateral if the purpose of the collateral is finally (partially) no longer applicable.[25]
Collateral should ensure that the lender gets his money back even if the borrower no longer meets his payment obligations. The regular monthly repayment of a loan can over time mean that the value of the collateral provided when the loan agreement was concluded exceeds the outstanding claim. This is called over-insurance
The developers have also added a new generation of market participants, especially in commercial residential property financing. One speaks of so-called developer financing when a credit institute finances not only the costs of the developer during the construction and marketing phase, but also the purchase of the property by one or more buyers in relation to a project to be implemented. The aim is to divide up and sell individual units of the property to owner-occupiers and investors. Credit institutions are hoping for follow-up business, which can arise, for example, in brokering the units or in insurance companies. On the other hand, however, there are risks if the construction costs are exceeded or units of the property cannot be sold in the planned time. This jeopardizes the repayment of the loan.
As already mentioned above, real loans may be issued up to a maximum of 60% of the loan value. A loan is still considered a real estate loan if it is granted against the entry of a secondary mortgage, but the public authorities provide a guarantee to secure the loan.
Liabilities from a consumer loan contract that are not secured by a mortgage can be repaid in full or in part at any time, without the need for separate termination (500 para. 2 sentence 1 BGB). In such a case, the amount of any prepayment penalty is limited to a maximum of one percent of the amount repaid early (see 502 para. In some cases, according to 502 para. 2 BGB, the right to prepayment compensation is completely excluded.
In addition to the types of credit described, German law also differentiates according to whether the loan is to be used for professional or private purposes by the borrower: If the loan is primarily used neither for commercial nor for independent professional activity, the borrower is to be regarded as a consumer.
However, if the mere security provider is the managing director or majority shareholder of a GmbH, general partner / general partner of a KG / OHG and is personally liable for loans to his company, an extended security agreement is applicable.[15] This means that extended security agreements are only permitted if the security provider can influence the type and scope of the loan to the borrower. So if loans are granted to companies whose managing directors or majority shareholders or personally liable partners act as security providers, an extended security agreement is always permissible. The usual bank extension of the purpose of securing the land charge to include future credit claims is not uncommon for companies providing security, even if the property lien is created to secure third-party debts
With the real estate loan, a technology of the banking industry has developed in Germany that is otherwise rarely found in Europe. With the development and application of objective criteria that serve to minimize the risk of default, the security of real loans is guaranteed. The most important regulatory goal in Germany has always been to prevent loan defaults. For example, with one exception, the option of raising or lowering the loan-to-value ratio was not used. For the area of agricultural lending alone, an increase in the lending limit to 66% instead of 60% was possible from the start. In 1963, however, this special regulation was lifted.
By entering into a loan agreement, the bank undertakes to provide the loan and the customer to accept it. The bank can then demand compensation, the so-called non-acceptance fee.
The credit institutions use different methods of interest settlement. Depending on the contractual agreement, repayments are sometimes offset against the outstanding, interest-bearing residual debt, sometimes precisely to the day, sometimes monthly, quarterly or even only once a year. These different approaches are neither mandatory nor expressly prohibited by law and case law. Rather, in accordance with the principle of freedom of contract, the banks and their customers are free to offer, accept or reject a contract under the respective conditions.
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