Section 39 GBG on a court deposit of mortgage debt: which official certificate enables provisional registration for deletion or transfer of the claim to the payer.
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If a mortgage debt cannot in an exceptional case be paid directly to the creditor, or if the creditor must first assign the mortgage rights to the payer, the amount owed can be deposited with the court. Section 39 GBG links this deposit to a specific land-register option: once the official certificate for the deposit is produced, provisional registration for deletion or for transfer of the claim to the payer can take place.
The court deposit does not remove the need to review the land-register application. The reason for the deposit, the exact amount, the affected mortgage and the chosen registration objective must correspond. Deletion and transfer are different legal results.
This post deals only with a court deposit of a mortgage debt and the provisional registration connected with it under section 39 GBG. A court deposit of the purchase price, ordinary discharge of encumbrances and personal assumption of a debt follow separate rules.
Classify the payment reason, intended result and official certificate. The path is an initial orientation and not a review of the individual application.
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Section 39 GBG refers to the reasons in section 1425 ABGB or to the situation where the rights must first be assigned under section 1422 ABGB.
A court deposit of the purchase price, ordinary discharge of encumbrances and assumption of a personal debt are separate review questions. First identify the amount, creditor and intended land-register result.
Provisional registration for deletion has a different purpose from provisional registration for transfer of the claim to the payer. Align the deposit and the application with the same legal result before submitting the documents.
Section 39 GBG requires the official certificate for the court deposit as the basis for the provisional registration. Secure the deposit record, the affected mortgage, the amount and the intended registration objective in a traceable chain of documents.
Now compare the deposit amount, the mortgage registered in the land register, the official certificate and the selected legal result. If the claim is to be transferred, also document why the creditor rights should pass to the payer.
Section 39 GBG concerns the amount of a mortgage debt. If that amount cannot be paid to the creditor for a reason mentioned in section 1425 ABGB or for another important reason, the provision opens the route through a court deposit. The same applies where the creditor must first assign the rights to the payer under section 1422 ABGB.
After the deposit, the official certificate for that process is decisive for the land register. Once it is produced, provisional registration can be sought for deletion or for transfer of the claim to the payer. The provision therefore identifies both the evidence and the possible objectives of the application.
The deposit alone does not automatically remove the mortgage from the land register or transfer the claim to a particular person without a matching declaration. The certificate, the registration and the application must point to the same result.
Section 1425 ABGB covers situations in which payment cannot be made directly for the statutory reasons or for another important reason. The specific cause therefore needs to be identified and supported by the documents. A wish for a simpler closing process is not by itself that reason.
Section 1422 ABGB addresses a different situation. A person who pays another person’s debt may, before or at the time of payment, require the creditor to assign the rights held against the debtor. Where that assignment must first occur, section 39 GBG also refers to a court deposit of the mortgage debt.
This distinction matters for the land-register process. Deletion focuses on ending the security. Transfer to the payer additionally requires clarity about which creditor rights pass and how the payer is identified in the application.
Section 39 GBG expressly links the provisional registration to production of the official certificate for the court deposit. The certificate documents the deposit for the land-register court. It is therefore different from a private payment agreement or a mere payment instruction.
The certificate must be traceable to the mortgage debt concerned. The amount, creditor, property and registration must not diverge across the documents. The application must also show whether the provisional registration is intended to delete the mortgage or transfer the claim to the payer.
Provisional registration is a distinct form of land-register entry. It should not be treated as an already completed entry in the same way as an absolute registration. The further evidence needed for completion depends on the application and the documents submitted.
Provisional registration for deletion is intended to remove the registered mortgage from the land register. This objective fits a process in which the mortgage debt is settled and there is no intention to transfer the claim to the payer.
Provisional registration for transfer is intended to pass the claim to the payer. This may matter where a person pays the mortgage debt and is to receive the former creditor’s rights in return. The payment and the intended assignment must correspond in substance.
An application should not leave the two objectives mixed or uncertain. Before filing, clarify who pays, which rights should pass and whether deletion or transfer is requested. The general rule that the land register is bound by the specific request remains relevant.
The current land-register extract, the document evidencing the mortgage debt, the documents supporting the payment reason and the official certificate for the court deposit should be reviewed together. For a transfer, add the document showing the intended assignment of the creditor rights.
The deposited amount must be traceable to the mortgage debt. Different descriptions, several liens or ancillary amounts can make that link difficult. The document chain should be clarified before filing rather than deriving the intended result from the payment flow alone.
The post on the land-register application after signing a purchase contract addresses the application steps in a purchase setting. For purchase-price handling through a trustee, see payment of the purchase price via escrow. Both topics must be kept separate from the mortgage debt dealt with here.
The amount dealt with in section 39 GBG is the amount of a mortgage debt. A court deposit of the purchase price, by contrast, concerns performance under the purchase contract. Both amounts can appear in the same transaction but have different debtors, creditors and legal bases.
Ordinary discharge of encumbrances has a different objective as well. It is intended to free the property from agreed encumbrances and requires the matching deletion documents. It does not by itself show whether a mortgage debt was deposited with the court for an important reason or whether a claim should pass to the payer.
The post on discharge of encumbrances in the purchase contract explains that closing process. For the current land-register status, see how to read a land-register extract.
The sequence separates the payment reason, the certificate and the land-register objective.
| Review point | What must be clarified | Why it matters |
|---|---|---|
| Mortgage debt Which debt is being deposited? | Identify amount, creditor and relevant land-register entry. | Section 39 GBG concerns the amount of a mortgage debt. |
| Payment reason Why is direct payment impossible or is an assignment needed? | Document the section 1425 ABGB reason or the section 1422 ABGB assignment situation. | The deposit needs a matching legal basis. |
| Official certificate Is evidence of the deposit available? | Link the official certificate to the specific mortgage debt. | It is the basis named in section 39 GBG for the provisional registration. |
| Registration objective Deletion or transfer to the payer? | Align the application and documents with one objective. | The two legal results must not be left mixed or uncertain. |
| Distinction Is this really a mortgage debt? | Keep purchase price, discharge of encumbrances and debt assumption separate. | Those processes follow their own rules and documents. |
The overview does not replace a review of the land-register status, the deposit and the specific documents.
Before filing: Align the deposit amount, official certificate, registered mortgage and registration objective. A court deposit of the purchase price is a different process.
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Section 39 GBG regulates provisional registration where the amount of a mortgage debt is deposited with the court for a reason mentioned in section 1425 ABGB or another important reason, or where the creditor rights must first be assigned to the payer under section 1422 ABGB. Once the official certificate is produced, provisional registration can be made for deletion or for transfer of the claim to the payer.
No. Section 39 GBG expressly refers to the official certificate for the court deposit. A private receipt or payment instruction does not automatically replace that land-register document.
This post concerns the amount of a mortgage debt. A court deposit of the purchase price is a different process with a different legal basis and should not be mixed with the section 39 review path.
The provision names provisional registration for deletion and provisional registration for transfer of the claim to the payer. The application should make clear which of these results is intended.
A person who pays another person’s debt may, before or at the time of payment, require the creditor to assign the rights held against the debtor. Where that assignment is required for the process, section 39 GBG refers to a court deposit of the mortgage debt.
How registered encumbrances are deleted or assumed when ownership is transferred.
How payment of the purchase price is secured through a trustee arrangement.
Which information and documents need to match for the land-register application.
How entries, mortgages and other encumbrances are classified in the extract.
When buying property, the contract and the land register decide. Call us directly or send an email, callback within one business day.
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