The Federal Court of Justice (BGH) sentenced an initiator (redeveloper of old housing stocks) to reverse transaction in its judgement of 20.07.2007 (Ref. V ZR 227/06).
The initiator had bought up old housing stock, refurbished it, divided it up according to WEG, and provided it with a financing proposal together with a “sample profitability calculation” by an agent. In particular, an incorrect or “speculative” overly optimistic calculation of distributions from a rental pool led to the underfunding.
Ambiguities in the calculation method also lead to liability
Other ambiguities about “the true effect and meaning” of a yield calculation can also lead to liability: This was already demonstrated by the ruling of the LG Munich II (Ref. 9B 3493/05) of 17.08.2006 on the misleading of capital investors by stating the internal rate of return (IRR).
Insurers also under obligation
According to the case law of the higher courts, life insurance companies are also liable, for example, if their (allegedly) completely “non-binding” model calculations are based on incorrect calculations. This is the case, for example, if outdated mortality tables are used as a basis, so that overly optimistic maturity benefits or annuities are presented in the brokerage. In the years from 1999 to 2002, sample calculations of maturity benefits in life insurance or of expected pensions throughout the industry assumed substantially higher investment income than could be achieved in the future with the largely fixed-interest investments. Public prosecutor’s office – and in the meantime against accepted penalty payments in 6-figure range stopped – preliminary proceedings against responsible life insurance executive committees because of disloyalty – to risky investment in shares with losses resulting from it – show that here in some cases also a criminal relevance can be given.
Dr. Johannes Fiala, Attorney at Law, Munich
(RATINGSieger magazine 1/2008)
Courtesy ofwww.bhm-marketing.de.
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About the author
Dr. Johannes FialaPhD, MBA, MM
Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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