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German Law/Reclaiming gifted property

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QUESTION: Hello Andreas,

In 2006, I purchased a former schoolhouse in Germany.  My husband insisted I gift him half the property.  When he began to threaten me and my children, I was frightened and gave in, so his name is now in the Grundbuch. We were living in Sharjah in the UAE at the time.  He is Iranian, but since we both hold US rather than German passports, he was charged a gift tax based on the value of half the property.  Because he did not pay the tax, the German government froze my bank account in Bautzen and insisted I pay the tax.  I did.  

Shortly thereafter, I was able to move to a different city in the UAE because of my work.  On the day of my move, my husband became extraordinarily abusive and destroyed about twenty years of my artwork.  I didn't contact the police because I was afraid that, as a woman, I would be found guilty somehow of something.  Instead, I quietly began my search for a divorce lawyer who would accept my case.  After three years in UAE courts, I was finally granted a divorce; however, there was no property settlement.  

In the summer of 2010, I moved to Germany and began a new life in the schoolhouse.  The gift-contract, signed in 2007, states that my former husband is responsible for half of all payments related to the property (Insurance, taxes, etc.)beginning when the contract was signed and filed by the Notary.  He is also legally obligated to pay half the monthly mortgage payments and began to do so in March 2011 after he married a woman with a British passport.

In 2012, I paid a lawyer in Bautzen 1,500 Euro.  He said he would handle the case for me but did nothing except return my money after about four months and many emails from me.

My question: is it possible for me to take back my gift of half the property based on the fact that he hasn't fulfilled his contractual agreement.  If so, where do I begin?  If not, what other recourse do I have?  

Thank you in advance,

Mara

ANSWER: Hello Mara,

yes, German law includes a provision ( 530 I BGB) that allows you to rescind a gift if the recipient of the gift later proves unworthy.

I would say that these requirements are met here, but I wonder if we could prove that your ex-husband destroyed your artwork. That would be the main argument in your favor. Him not paying his share of taxes et cetera is another argument, but then he is also not using the property and you are, so that he could charge you rent for using his half. Thus, basing the case on the financial aspects will untangle a whole web of claims and counter-claims.

Another argument to rescind the gift would be frustration of purpose. If we use that argument, we would say that the purpose of the gift was to live there together as husband and wife. As the marriage no longer exists, this purpose can no longer be achieved and maintaining the gift is thus no longer appropriate.

Because it involves real estate and you would need to get the land register amended, you will - unless your husband consents to the transfer - have to sue him. Unfortunately I am not in Germany for the rest of the year and therefore won't be able to represent you personally. But I do wish you all the best!

Andreas Moser
www.moser-law.com
www.andreasmoser.wordpress.com

---------- FOLLOW-UP ----------

QUESTION: Thanks so much, Andreas.  Would you be able/willing to represent me when you return to Germany?  Either way, is your book wish list up to date?  With kind regards, Mara

Answer
Yes, I would, but I will not return before December 2014 because I am in Italy for the whole year to learn Italian (and to travel a bit). You should not wait any longer because of the statute of limitations.

Thank you very much for mentioning my wishlist of books!
Yes, it's up to date.

You are one of the very few people who takes note of that possibility, and I appreciate that very much.

Andreas Moser
www.andreasmoser.wordpress.com

German Law

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Andreas Moser

Expertise

Extensive experience in international family law, especially international child abductions and child custody cases. All other areas of German law as well: constitutional law, criminal law, business and contract law, immigration law, inheritance law, and so on.

Experience

Lawyer in Germany from 2002 to 2009. Lawyer for US Army JAG Corps before. Bar-certified specialisation in family law and in administrative law. Articles and lectures about international and domestic family law.

Publications
www.andreasmoser.wordpress.com

Education/Credentials
2000 Law Degree from University of Regensburg, Germany 2002 admitted to the bar (until 2009) 2013 MA Philosophy at the Open University, UK

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