Land Registry of Waldsassen v Eger (Cheb) and Waldsassen

The following is the text of the decision:

I. The decisions of the Landgericht (High Court) of Weiden of 2 July 1963 and the Amtsgericht (Court of First Instance) of Waldsassen of 27 February 1963 are quashed.

II. The case is remitted to the Amtsgericht of Waldsassen for further action.

1. In the land register of the Amtsgericht of Waldsassen in Ottengrn, vol. 5, p. 153 (transferred from vol. 2, p. 67) the municipality of Eger is registered as the owner of the Eger Town Forest, some 634 hectares in area, which includes numerous stretches of land situated within the boundaries of Ottengrn and Newalbenreutn.

2. The assistant notary T., of Waldsassen, acting on behalf of the municipality of Eger, C.S.R. (Czech Cheb), sold to the town of Waldsassen conditional on subsequent approval an area of about 500 square metres, which still has to be measured off the parcel of land No. 459, lying within the boundaries of Ottengrn and belonging to the Eger Town Forest. The notary Dr. S. of Waldsassen was attesting witness to the documentUR No. 106/1963, and the location of the area was known exactly to the participants in the transaction. The town of Waldsassen intends to build a new deoxydization plant for the water supply of its citizens on the piece of land purchased.

The seller agreed to and the participants applied for a note of entry in favour of the purchaser in order to safeguard its claim of conveyance.

On 15 February 1963 attorney Dr. H., of Munich, in a publicly-authenticated document of the notary W. of Munich, declared that as representative of the Municipality of Eger/CSRCzech Cheb, he unreservedly approved the contents of the document of the notary Dr. S. of 18 January 1963UR No. 106/63.

On 2 January 1963 the Chairman L. and the Secretary S. of the Town Council of the town of Eger (Cheb) had authorized the attorney Dr. H., in the name of the town, to represent it in the sale of the tract of land. The Regional Council in Eger (Cheb), represented by the Chairman K. and the Secretary J., authorized this arrangement on 11 January 1963. The notary public Dr. H. of Eger (Cheb) has authenticated the signatures of the aforesaid persons. The signature of the notary public itself is authenticated by a representative of the Ministry of Justice (Dr. P.); his signature in turn is authenticated by the Superintendent of the Department (Dr. C.) in the Ministry of Foreign Affairs in Prague. Finally, the Vice-Consul D., of the French Embassy in Prague, has authenticated the signature of Dr. C. and has certified that he is authorized to sign on behalf of the Czechoslovak Minister of Foreign Affairs. On 5 February 1963 the Superintendent of the Department (Dr. M.) in the Czechoslovak Ministry of Finance communicated to the Office for Legal Advice No. 1 in Prague permission under the currency regulations for the sale of land between the town of Eger (Cheb) and the town of Waldsassen and to the dispatch of the warrant of the town of Eger (Cheb) for attorney Dr. H. in Munich.

On 20 February 1963 the notary Dr. S. applied for the entry of the note of conveyance.

3. The Court of First Instance (Amtsgericht) of Waldsassen rejected the application in its decision of 27 February 1963 on the ground that the present town of Cheb was not identical with the previous town of Eger, the proprietor of the Eger Town Forest; as the originally resident population had been expelled, the municipality of Eger had ceased to exist. In its place a new townChebhad been established in which a new population had been installed. A legal succession, therefore, had not taken place.

The Czechoslovak Republic had expropriated the public and private property of the Sudeten-Germans. These measures could not, however, have any effects in the territory of the Federal Republic of Germany. There was no need for a decision whether the Eger Town Forest was now derelict or who else it belonged to [since] in any case the town of Cheb was not the owner of the forest. The note [of conveyance] therefore could not be entered, as it had not been approved by the person whose right it affected. Having regard to the political structure of Czechoslovakia as a People's Republic, the town of Cheb would, after all, have to bear responsibility for the expulsion of the Sudeten-Germans by the Czechoslovak Republic, which was in violation of international law. In international law the principle of reciprocity was applicable. As the Czechoslovak Republic had expropriated without compensation the immovable property of Germans situated in its territory, especially also that of German municipalities located along the border, the town of Cheb could not claim for itself the forest grounds of the previous town of Eger, located in German territory, either.

Attorney Dr. H., for the municipality of Eger (Cheb), and notary Dr. S., for the town of Waldsassen, lodged a juridical complaint against this decision. The complainants objected to both the factual observations contained in the decision of the Court of First Instance and the legal conclusions drawn from it. The town of Cheb was identical with the town of Eger as entered in the land register, which already previously had borne the Czech name of Cheb. Also, the town had never been without a population as the Czech minority had never left the district of the municipality, and furthermore, the de-colonization of the German-speaking population and the simultaneous re-colonization by Czechs was spread over a long period of time. The town of Eger had not ceased to exist as a consequence of the de-colonization of its German-speaking population. The Eger Town Forest therefore had not become derelict. As the Munich Agreement of 29/30 September 1938 had been void at all times, the town of Eger (Cheb) had always had the status of a Czechoslovak territorial corporation. It was therefore not possible conceptually that the...