Reconstruction of junk real estate: New ruling of the European Court of Justice allows for reversal of the transaction

RA Johannes Fiala
Since the 90’s resourceful financial fraudsters promise their customers ?you get from the tax office a real estate given? To the Untermauerung immediately a sample calculation is put on, according to which the capital investor in the first year a chunk money of the tax office gets back. These computations have however various hooks and ösen: First of all a ?tax refund? for the first year is precalculated, which does not apply however starting from the second year any longer: Tax advantages and rent yield do not cover by far the interest load ? the investor becomes daily poorer. In truth, the capital investor becomes poorer from year to year, because residential real estate usually yields between 2 and 4% in relation to the value. If such a property is 100% (or more) financed by the bank, then the rental income each year is less than the interest burden. And that’s not all: Often the properties were not inspected before the purchase or only a nice prospectus was available for the purchase decision. Later it turns out that the real estate is worth only a fraction of the total expenditure. Not differently can be explained also, why here not the ?usual? Broker commissions of 3-6% but also over 30% to the ?selling? were paid. Quickly then the reproach against the bank is raised, how it could have granted then with a value of e.g. 100,000 euro a multiple at credit: Finally it was also one of the central sales arguments that the real estate ?bank-examined? is, otherwise the credit institute would take over nevertheless no financing. From the mediator promise to be able to sell the real estate after years with a tax-free profit (increase in value), nothing remains in reality: A precise tax and financial analysis often leads to the result that a reorganization is to be reached in particular only over a separation from the object. Before that, however, the course must be set, because the ?all-round carefree package? of the financial fraudster turns out to be incorrect advice ? and the credit institution is also liable. Here not rarely over negotiations economically meaningful results can be reached ? under the line this means regularly a multiple at ?money back? in the comparison to the now lining up advisor costs. The capital investor had trusted its financial advisor, an architect was not asked before: Thus it is not surprising that not only pharmacists and physicians, but also tax counsels and lawyers fell for the vollmundigen promises of the Finanzbetrüger. It is important that at the beginning an exact analysis of the contracts and the salesman tricks at that time stands, so that the legal and fiscal organization possibilities are well-known. A particularly pleasant situation creates here the new judgement of the European Court of Justice (EuGH) of 13.12.2001: The court decided that the investor can give back its dwelling (to its bank!) and require all interest, repayment installments as well as costs refunded by the credit institute, if it acquired the real estate in a ?doorstep situation? ? thus at the job or at home of the mediator ?surprised? was. Further condition is that no ?revocation instruction? took place after the entry door revocation law. Thus the European court wrote the German legislator in the master book that this right of revocation is not ?expired? after one year (in such a way it stands in the law), but the revocation still years later (for lack of proper instruction) can take place. In practice, this occasionally results in dramatic findings: The real estate ?devoured? so much money that a tidy old age pension could not be developed. Also the fiscal advisor is usually not aware of the situation, because he fills out only the forms of the finance ? to an examination of the Werthaltigkeit of the investments of its clients he is rarely assigned. Here only a financial planning can help to identify the supply gaps on the one hand and above all the unprofitable investments on the other hand. The ECJ ruling improves the prospects for successful negotiations or litigation, and thus for a rehabilitation of the financial situation.

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About the author

Dr. Johannes Fiala Dr. Johannes Fiala

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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