You want to sell your German property to a person from your close circle. At the same time there are outstanding claims by other creditors. In conversation the hope arises that, after the change of ownership, these creditors could no longer access the house anyway. Check this assumption legally before price, consideration and payment routes are determined.
This article concerns the possible avoidance (Anfechtung) by creditors outside insolvency proceedings. It does not explain any method to deprive entitled creditors of access to assets, and it does not infer misconduct solely from a family relationship.
Disclose the entire economic transaction
Our editorial recommendation: give the legal adviser the status of claims, existing titles, securities, previous enforcement actions and the complete transfer plan. What is actually to be paid or assumed, when and to whom? Are there further agreements besides the draft sales contract?
A description reduced to the change of ownership may leave the decisive movement of assets unreported. Use documented values and actual payment paths. A fabricated flow of funds or a backdated document would not be a usable basis for a permissible arrangement.
Avoidance requires its own statutory facts
§ 1 AnfG enables, under the further statutory requirements, the avoidance of legal acts that disadvantage creditors outside insolvency proceedings. § 2 limits which creditors are entitled to this; among other things, enforceable titles, maturity and insufficient enforcement or the corresponding prospect thereof are mentioned. [ANFG_1999-1] [ANFG_1999-2]
This article therefore does not declare every sale with some outstanding invoice automatically avoidable. Advice must examine the concrete circumstances and all relevant prerequisites.
An onerous contract with a relative also needs examination
§ 3 AnfG governs intentional disadvantaging and contains in paragraph 4 a special offence for onerous contracts with closely related persons that are directly disadvantageous, as well as exclusions. The definition of persons refers to § 138 InsO. [ANFG_1999-3] [INSO-138]
The label “sale” therefore does not alone answer this examination. This article does not establish its own safe period or a price that would exclude any avoidance. Times, knowledge, relationship and actual economic effect must be submitted in full.
An invented family sale with further outstanding claims
An owner wants to sell to his sister. His own summary contains only the assumed repayment of the bank loan and the remaining amount for private purposes. Other documented claims he has excluded from the sales transaction.
Before making a commitment he presents the full inventory for legal examination. In doing so the effect of a possible avoidance is also explained. § 11 AnfG deals with the provision of assets withdrawn by an avoidable act for access, insofar as satisfaction requires this; this is not presented here as a blanket nullity of every contract. [ANFG_1999-11]
The result must be a decision examined on the real facts. The sale will not be treated as safe from creditors merely because another family member is to be entered in the land register in future. An already existing dispute or a new creditor claim will be reported to the adviser.