German Federal Court Of Justice (BGH) Decision on Conflict Between Asset Based Lenders and Landlords Liens: Lenders’ Rights Upon Property Transfer

In Germany, commercial banks and other asset based financers as lenders or sale and lease back counterparties often acquire title to or security interests over the borrower’s movable assets, including fixed assets and inventory. However, in many cases, the value of such collateral is reduced due to priority rights of third parties, the most important being retention of title rights from suppliers and statutory liens of landlords. Regarding the latter, borrowers have in the past frequently been able to provide waivers issued by the landlord for the benefit of the lenders. Lenders, relying on such waivers, include the respective assets in their borrowing base calculation, resulting in increased finance volumes. A recently published decision of the BGH has shown that a landlord’s waiver may not provide protection in case of a sale of the property by the landlord to a third party.