Why presumption certificates and well-intentioned laws invite crime
Over 35 million citizens live in Germany for rent. Since 01.11.2015, they have to submit a certificate from the landlord about moving in and out to the registration office. A state secretary from the Ministry of the Interior commented on the amendment to the law: “The Federal Registration Act makes it more difficult to register so-called “bogus registrations”, i.e. registrations for a specific apartment without the landlord knowing about it. Time and again, difficulties have arisen here because registration confirmations obtained in this way have been used for criminal activities, such as credit card fraud.” Does the law miss its mark?
Wrong registration address the order of the day?
Up to more than 5% of the population is said to be “falsely” registered in Berlin alone, through bogus registration, criminal investigators estimate. This secures a different school district for the children, a vignette for resident parking, higher Hartz IV payments by concealing living with a partner, as well as credit card fraud by not even being able to deliver bills or fines.
There were cases with registration address in three federal states – for the receipt of social welfare, for the receipt of unemployment benefit and for working: There “Floria Rolf” with Sozialhifebezug in the vacation foreign country seems as it were a trifle against it. It doesn’t appear that despite “Big-Data” and government caring surveillance, the new law specifically addresses such cases for the first time in decades.
Some service providers offer for the registration only around lease contract, identity card and power of attorney – the personal course to the registration office is superfluous thereby also in completely legal cases. One wonders how exactly the authenticity of such documents can then be checked at all in view of the personnel pressure in the municipalities?
Wrong company address the order of the day?
A company can disappear without a trace in Germany despite registration with the commercial register, § 9 HGB. All that is needed is a notary public who appoints a manager, specifying a city where the manager is supposed to live – and perhaps another city where the company’s registered office is supposed to be located. If the company moves out without re-registering, it is untraceable – even for the commercial register itself. And if the business manager cannot be found in the city in question, no information from the population register will help.
The legitimation of the manager at the notary (e.g. identity card) often does not end up in the register file – after registration, for example, it is no longer possible to determine through which notary the registration was made. The law on the reform of limited liability companies (MoMiG), which came into force on 01.11.2008, was intended to make it more difficult to bury companies through (bogus) relocations – however, even “public service” does not help against the untraceability of the company’s organs and business premises.
It is easier if the company is registered with the notary public as having moved its registered office from Friedrichstraße to “P.O.Box 121314 in Frankfurt”. After moving to a P.O. Box, you’ll never be seriously bothered with mailings and house calls again.
Similarly interesting is the participation in the lottery of citizenships or residence permits, for example from Liechtenstein: There, one cannot execute without a judgment from that country – of course before the statute of limitations has already occurred. The expert debtor has a commentary on international enforcement treaties. Anyone who has owed up to more than €25 million in taxes in Germany can live without worry in America with a green card and social security number. Just as Switzerland, for example, should regularly not even think of extraditing anyone because of tax debts.
More often no registration address at all – with or without cover address?
Hundreds of thousands of citizens with residence or domicile in Germany are not even registered – including those who are no longer designated as having absconded, but as having “unknown residence” by the authorities. Nevertheless, you can get a cover address from service providers in Germany, optionally including forwarding of mail abroad or by email, which is also completely legal – you don’t have to inquire about backgrounds. . Who needs nevertheless times inland a new identity card, would have to appear at most somewhere with a current passport photo short time – e.g. in the (temporarily permanent) vacation home of a friend. Some people might not even bring the landlord’s certificate of departure to the registration office, but send this piece of paper to the aliens’ registration office as an answer to the notice of refusal with an order to leave the country, with the note: “I’m off then”.
Without registration address despite residence de facto tax exemption?
Renting an apartment without registering is always allowed. No landlord is required to obtain a certificate of registration. A landlord does not have to issue a landlord certificate without being asked – the tenant can of course destroy it straight away. The tenant may just want to store his antiques or hold inconspicuous occasional meetings, rather than move in and live there.
Wealthy people find it an imposition to be burdened with taxes, and unabashedly live officially abroad – where embassies and consulates extend German identity papers. Here in Germany, tax privileges are then secured for decades, when neither withholding tax nor capital gains tax is withheld by the banks for so-called bogus foreigners. All you need is a foreign citizenship and the appropriate identification documents to open an account. Not to mention that some passports are sold abroad as merchandise – made, for example, from the spoils of war in the Arab or African regions. The prices are said to be a few hundred euros – for the hundredfold one could also buy a diplomatic passport in Vienna, for example. However, as long as the newly appointed diplomat is not properly accredited, he does not enjoy immunity in criminal dealings. This was also learned by a graduate psychologist who ran a snowball scheme, and was sentenced to prison here.
Can’t get a bank account with a foreign passport?
If there are state sanctions (embargo) with respect to certain persons, entities or countries, perhaps limited to certain types of business, the foreign passport may also mean a foothold – relevant transactions would be null and void, cf. for example Art. 6 Regulation (EU) No. 1284/2009, as amended by Regulation (EU) No.269/2011.
Many an Iranian had his bank account, including assets, completely withdrawn by his bank in Germany at some point – allegedly because friendly foreign states had attached importance to it. For example, the violation of the Iraq embargo would be punishable under section 34 para. 4 AWG in conjunction with § Section 69e para. 2 letter c AWV also constitutes a crime (Federal Court of Justice, BGH judgement of 11.09.2002, Ref. 1 StR 73/02) – including the import of foreign currencies (BGH, judgement of 19.12.2001, Ref. 2 StR 358/01).
Declaration of presumption according to the Federal Registration Act (BMeldeG)?
The legislator has regulated the procedure for the creation of the landlord certificate in such a way that first of all the occupant of the dwelling provides the owner/landlord with the information that he has moved in, § 19 I 4 BMeldeG. Then the landlord/owner confirms the move-in/move-out, § 19 I 2 BMeldeG.
Both are statements of knowledge. The declaration of knowledge merely states what the declarant assumed at the time of the declaration. It is unclear whether the landlord would also have to ask other tenants or neighbours, for example, to check the veracity of the tenant’s communication? Checking with the registration office to see if a registration or deregistration has taken place is only one option for the landlord. Not included are owners of a house or an apartment – these could only certify themselves something arbitrary: a Schildbürgerstreich?
As a landlord you could formulate: “The person obliged to register gave me the information to have moved in/out on …”. An obligation of the landlord to check the tenant’s details by inspecting the premises is not provided for – negligently certifying an actual move-in without checking could be punishable in serious cases. It already asks itself whether not everyone can ask also a third to feel briefly as a landlord, in order to issue x arbitrarily such certifications. Whether the issuer of the landlord certificate is now owner, usufructuary, intermediate tenant or break clown the registration office will hardly verify?
The question for landlords is therefore whether the landlord certificate requires full proof of move-in. Even if the landlord finds the tenant in the apartment, he only knows that he is there right now. Or perhaps it is a “testimonial”, or a statement as a witness that one has sensed that the tenant has moved in? Would this stand up to questioning in court or would it even be possible to give false testimony there, because one has not observed anything oneself?
Renting for the purpose of storing furniture is not covered by law – however, recently the wish to store suitcases, for example, is sufficient for personal use (BGH, judgment of 20.3.2013, ref. VIII ZR 233/12; of 30.04.14, ref. VII ZR 107/13; 04.03.2015, ref. VIII ZR 166/14; BVerfG, decision of 23.04.2014, ref. 1 BvR 2851/13). Letting for the purpose of subletting or subletting is also not covered. The landlord is then the interim tenant. For example, one of the authors here had rented a furnished apartment to a Dallas company – obligations to issue landlord certificates or possible criminal penalties were thus eliminated. The Residents’ Registration Office will probably also have to accept a landlord’s certificate from the Palermo company Ponzi (name changed), which rents apartments as an interim tenant for subletting.
Concierge service and other alternatives to the BMeldeG
In Spain and France, for example, there is the concierge – a more reliable contact person for the question of who lives in the house. The federal government would also not have had to burden the landlord, but could have asked the letter carriers to issue such certificates with a higher degree of reliability, so to speak as a revival of the block warden of earlier times. In the GDR, every so-called house community was obliged to keep a house book. Every inhabitant of the tenement had to be registered in it, also persons who stayed longer than 14 days for a visit were listed with home address, occupation and duration of their stay.
In fact, it can happen that the local water meter reader, on the occasion of reading the water meter because of increased water consumption, asks whether there has been any change in the number of residents. Anyone who registers in Switzerland in order to obtain a passport and citizenship after a few years will certainly be monitored communally as to whether they live there and heat there – at best with a centre of life.
Thousands and thousands of economic migrants in Europe
The involvement of the land registry offices or the municipal tax authorities for property levies had not yet been considered by the Ministry either. As a result, foreign companies, trusts and foundations also hold real estate in Europe – and beneficiaries have resided there tax-free and unmolested for decades.
Insiders then say that the staffing at the Finanz does not allow such things to be pursued – others think that this is deliberate location promotion of certain federal states in the competition for inhabitants who are not a burden on the state. Discreet payments are then sometimes made via the discreet hawala payment system, a nameless black credit card, or via the mobile phone payment method that is also common in Africa. Hawala banking would require approval by the Federal Supervisory Office for Financial Services (BaFin) – virtually no one in this country has remembered this.
Another tax-free practice is, for example, bank accounts of long-deceased persons. You don’t have to be a deceased pope with a current account at the Vatican Bank – this practice is also sometimes commonplace at banks in other dwarf states in Europe. Even in this country, many a “monastery” is said to have had assets given to it for safekeeping in an ecclesiastical foundation – some requests for repayment by the beneficiaries turned out to be misguided and ended up in court. Yet treasurers and priests are considered the inventors of accounting, with special expertise in property attribution and legend making.
In doing so, the Ministry of the Interior could also have thought of the public prosecutor’s offices. The Federal Court of Justice (BGH, decision of 20.05.2015, file no. 1 StR 33/15) has confirmed that from 5.9% black money mixed with taxed book money is sufficient for money laundering to be present with regard to the assets then “marked” as a whole. Each payment, direct debit and cash withdrawal therefrom constitutes a new offence and may also result in the confiscation of all items involved. A well-done law might have more than doubled federal budget revenues – and relieved the average citizen, for a small economic boost from increased consumption opportunities?
Thus, however, the assets and incomes of past and present economic refugees remain unknown due to de facto tolerated tax avoidance. After all, it would be a prejudice to believe that the poorest are part of the vanguard in mass migrations – the opposite is probably more accurate, especially in the case of unrecognised millionaires with mobile phone banking that is traditional in their countries of origin.
Does this tenant really exist in my property or polar bears in Berlin?
A Siberian was given the following intelligence test “Berlin is a city in Germany. There are no polar bears in Germany. Are there polar bears in Berlin?” Answer, “I don’t know, I haven’t been to Berlin yet.” In the paper in question, this was considered to be a lack of intelligence or abstracting ability.
But in fact, the Siberian said to himself: could have been a lie? Or: How does the scientist know that polar bears have not immigrated since his last stay in Germany? Maybe he witnessed someone saying that there were no polar bears at the river bend and the next careless one was eaten by one that had just arrived.
So, as a landlord, you should expect that the tenant is a liar and is only faking their move-in. To be expected to confirm something as one’s own knowledge that one cannot know at all, and to be liable for it even in the case of negligence, should call for caution. The penalty can perhaps be reduced by active repentance, in that the landlord pays back to the state the Hartz IV benefits wrongly received by his tenant.
The question of the declaration of knowledge leads into legal non-bindingness
Many a landlord with real estate holdings hears from his building insurer or broker, “We provide this.” Then they should demand that the insurer (VR) make an express declaration of intent to do so, with an intent to be legally bound, instead of this declaration of knowledge. Few insurance brokers know the difference, leaving them without anything in hand if VR says the statement was wrong, that he was mistaken at the time. Such retractions (e.g. on the amount of surrender values and maturity benefits or on the scope of insurance coverage) then end up more frequently and unnecessarily later in court because their non-binding nature had remained undetected. For example, if the broker had passed this on to the policyholder as his own knowledge of facts.
However, the negligent misrepresentation of a landlord’s certificate is punishable – so only that which is reasonably certain should be certified, even if the tenant is accused of intent to defraud, lying and misrepresentation. Because this is exactly what the legislator wants to prevent with the new registration law.
Lawmakers praise their new standards on registration laws as strengthening citizens’ data privacy. However, any company can simply claim that the data subject has given his or her consent for the registration authorities to release the data. This leaves the door wide open for data misuse, especially by companies, as at most random checks are to be carried out on the alleged consent. However, there is often no interest in this, because the corresponding data information brings considerable fees into the coffers of the municipalities.
Some privacy advocates, landlord associations and consumer groups may think the new landlord certificate is a bureaucratic monster. It would probably have required a bit more oversight when the law was drafted, especially coordination with the Ministry of Finance. If in this year the police in individual Lands of the Federal Republic will have built up up to more than half a million at overtime, it would have been obvious on the field of the reporting offences straight to relieve the police effectively, and naturally also the citizens as tenants and landlords.
by Dr. Johannes Fiala and Dipl.-Math. Peter A. Schramm
published in Telepolis on 24.11.2015
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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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