Right of withdrawal for real estate loans
What are the loans that can still be terminated today? For several years now, the consumer’s right of withdrawal has been the subject of legal proceedings as well as media reports in credit agreements, especially in real estate loans. Many bank customers have already succeeded with their right of withdrawal or the refund of prepayment fees paid to get rid of obsolete, often high-yield credit agreements. If the bank customer has not been properly informed about his right of withdrawal, a withdrawal can take place even years after the conclusion of the contract.
However, due to some legal changes, it is often not easy for the consumer to determine whether his right of withdrawal is still maintained today. There are many contradictory messages in the mass media. For example, it speaks of a “perpetual” right of withdrawal; elsewhere it is pointed out that the right of withdrawal is subject to certain exclusion times.
The decisive factor for the assessment of whether the consumer (still) has a right of withdrawal is the date on which the loan agreement was concluded. In the past 15 years, the insurer has repeatedly changed the right of withdrawal, so that the chronological classification of the contract for the chances of success of a contradiction is decisive.
The following is a brief overview for better guidance, when in general a contradiction to the current state is still possible. However, it must be examined in detail whether a revocable instruction is really defective. Unless otherwise stated, the data are real estate loans, ie mortgage loans and / or loans used for real estate acquisition.
Real estate loan agreements concluded up to 10 June 2010 could only be revoked until 21 June 2016 due to a change of law, cf. Article 229 38 (3) EGBGBGB. From 21.06.2016 effective rescission of these contracts is no longer possible, even if the instruction was inadequate or was omitted entirely.
Consumers who announced their resignation early before June 21, 2016, of course, can still claim their claims today. The lock-up period of June 21, 2016 will no longer apply to loans concluded in the period from June 11, 2010 to March 20, 2016. The loans can still be terminated at the present time, if the resignation given to the consumer was wrong.
Unlimited right of withdrawal remains
In these cases, the so-called “unlimited” right of withdrawal remains. However, the revocation instructions for these contracts are often much more difficult to enforce for the client. Certain example formulations – such as “deadlines begin at the earliest” – were rejected by the judicial authorities as ineffective, allowing consumers to revoke their consent.
For example, it may happen that credit institutions do not provide the mandatory information to which they refer in the withdrawal instruction in the contract or that the interest payments payable per day are not made in view of the consequences of the cancellation. If such an error occurs, the corresponding contract can still be revoked today. In § 356b BGB now the right of withdrawal of the consumer is anchored by law.
356b BGB makes a clear distinction between real estate and general consumer credit. The right of withdrawal for a real estate consumption loan becomes statute barred according to 356b Abs. 2 BGB 12 calendar months and 14 days after contract conclusion or after the contract document or his written request has been sent to the consumer (the later date is decisive).
The revocation period ends regardless of whether the instruction was incorrect or not. A resignation is not possible after the deadline. Thus, the federal legislature repealed the so-called “unlimited” right of withdrawal for real estate consumer loans as of 21 March 2016. However, this exclusion period is not applicable to general consumer credit. You can still revoke this indefinite. For the requirements of an effective contract performance, the above contract information from 11 June 2010 are valid. The chances of a successful resignation depend largely on the date of the conclusion of the respective loan agreement.
For contracts concluded after 10.06.2010, it still makes sense today to review the cancellation policy. There remains a temporary right of withdrawal if the instruction is incorrect. For real estate contracts concluded after 20 March 2016, the exclusion period of 12 months and 14 days referred to in 356b BGB must be taken into account.
“The” unlimited “right of withdrawal, however, still exists in principle for general consumer loans, ie loans that are neither secured by mortgages nor pursue the purchase of real estate.