Until this decision, it was unclear whether the corresponding shareholder resolution would have to be notarized as a result of an analogous application of § 179a AktG represented by the literature in the event of a sale of real estate by a GmbH to a third party. In order to avoid uncertainties, this has been done in practice since then. This had the not inconsiderable consequence that, depending on the respective value of the property, considerable notarial costs were incurred.
The Federal Supreme Court (judgment of 8 January 2019, GmbHR 2019, 973) has now ruled that such notarisation of the shareholders' resolution is not required. An analogous application of § 179a AktG is out of the question, as the prerequisites for an analogy do not exist.
However, a corresponding resolution of all shareholders in accordance with the provisions of the respective articles of association and the GmbHG is still required before the conclusion of the notarial property agreement.
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