Correction is sufficient in the case of an identity-preserving change of form – Higher Regional Court of Munich 34 Wx 71/24 e
Under the MoPeG (Law for the Modernization of Partnership Law), a civil-law partnership (GbR) can change its legal form. If a GbR is transformed—while preserving its identity—into a limited partnership (KG) that is now to be registered in the land register as the owner, it is not necessary for the GbR to have been previously entered in the partnership register. A correction in the land register is sufficient. This was ruled by the Higher Regional Court of Munich in its decision of May 22, 2024 (Case No.: 34 Wx 71/24 e).
On January 1, 2024, the Law for the Modernization of Partnership Law (MoPeG) came into force, bringing various changes. For instance, a civil-law partnership (GbR) can merge with another company or be converted into another legal form, according to MTR Legal Rechtsanwälte, a law firm advising, among other things, on corporate law.
Change of Legal Form from a GbR to a KG
However, a change of legal form—for example, from a GbR to a KG—entails certain legal peculiarities that must be observed. This also concerns the registration in the land register.
In the proceedings before the Higher Regional Court of Munich, three partners of a GbR were registered in the land register as the owners of a property. At the beginning of 2024, the partners established a management GmbH, which joined as an additional partner of the GbR. The GbR was then converted into a limited partnership (KG). In this process, the management GmbH became the general partner (Komplementär) and the other partners became limited partners (Kommanditisten).
The notary registered the newly established KG in the commercial register and stated that the limited partnership essentially continued the civil-law partnership—which already existed under the future limited partners—with essentially the same object and assets. Furthermore, he informed that the future limited partners, who are registered in the land register as partners of the GbR, had granted approval for the owner’s designation to be corrected and for the KG to be entered in the land register as the owner of the property. The KG also gave its approval for the change of name.
Land Registry Office Not Cooperative
However, the land registry office did not cooperate. It argued that there was not a mere correction of a GbR, but rather the establishment of a KG, as the entities were not identical in terms of their participants. The newly added GmbH as general partner had no relation to the previously registered GbR. Therefore, a transfer of ownership to the KG was required.
The appeal against the decision of the land registry office was successful at the Higher Regional Court of Munich. The court clarified that in the case of a mere identity-preserving change of legal form of the entitled party, the land register in Section I should not be corrected in accordance with § 22 GBO, but merely rectified. This also applies when an additional partner joins during the conversion of a GbR into a limited partnership. The court further explained that the legal entity is the legally independent GbR and not its partners, even if they were correctly registered in the land register. Consequently, for the rectification, a simple evidentiary procedure is sufficient; strict evidence as required for a land registry entry is not necessary. Rather, the approvals of the parties involved are sufficient, the court further clarified.
Identity-Preserving Change of Form
The Higher Regional Court of Munich further stated that, following the entry into force of the MoPeG, the registration in the land register of an identity-preserving change of form of a civil-law partnership (GbR) into a limited partnership (KG) does not, per se, require its preliminary entry in the partnership register. The MoPeG materials even explicitly state that the special provision of Art. 229 § 21 Paragraph 1 of the EGBGB in its revised form—which stipulates a requirement for a preliminary entry for all cases of disposition over a property by a civil-law partnership—is not applicable to a mere rectification. This applies specifically to the registration of an identity-preserving change of form in the land register.
In the case at hand, it must be assumed that there was a mere identity-preserving change of legal form. The partners had explicitly declared during the register filing that the GbR would continue as a KG. According to the Higher Regional Court of Munich, the identity-preserving change of form does not constitute a disposition of the company’s rights over the property that would require a preliminary entry. Moreover, the addition of the GmbH as an additional partner does not affect the identity.
In the registration, it was stated merely that there is an “essentially” identical continuation in terms of the object and assets. However, this leaves no doubt as to the preservation of identity. Rather, the formulation implies that there is agreement on the decisive points.
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