Buying a German home with a power of attorney

What the Civil Code says about the power

The rule is simple. A power is granted by a declaration to the agent or to the third party with whom the agent will deal (§ 167(1) BGB). The declaration does not need the form that the underlying transaction needs (§ 167(2)). For a land purchase, which needs notarial recording under § 311b BGB, the power could in law be given informally.

Two practical rules sit on top of that. First, the notary must be able to document the authority: under § 12(1) BeurkG, powers produced at the signing should be attached to the deed in the original or a certified copy. Second, the land register: an entry is made only on the basis of public or officially certified documents (§ 29(1) GBO), so a signature-only power is unsafe whenever the agent’s declarations are meant to reach the register. In day-to-day practice a buyer who wants an agent therefore has the power drawn up or at least signature-certified by a notary, though the sources read here state this as a consequence of those two provisions, not as one express rule. Ask the notary handling your purchase for the form it will accept.

Under § 12(2) BeurkG, when a declaration is recorded as made by an agent, showing the power to the notary also counts as showing it to the other party.

Who may act

The sources read do not restrict who can be appointed. The notary’s own duties matter more. For consumer contracts, the notary should work towards having the consumer’s declarations made personally or by a person of trust (Vertrauensperson), and towards giving the consumer enough opportunity to study the text beforehand; the draft is normally sent two weeks before signing (§ 17(2a) BeurkG). A trusted person is therefore not a stranger found on the day. If you appoint someone, choose a person you would be happy to see read the draft with you.

The Auflassung, the formal agreement on the transfer of title, must be declared with both sides present at the same time before a competent body (§ 925(1) BGB). Whether that presence can be through an agent is for the notary to confirm for your deed.

A power granted abroad

If you sign the power in your home country, German authorities may ask for proof that the foreign document is genuine. § 438 ZPO leaves it to the court’s discretion whether a foreign public document counts as genuine without further proof, and says legalisation by a German consul or envoy suffices as proof (the section is about court evidence; the notary and the land registry apply their own practice).

The Federal Foreign Office states that the receiving German authority may require proof of authenticity; where the issuing state is party to the Hague Convention of 5 October 1961, public documents no longer need legalisation and the Hague apostille, issued by a designated authority of the issuing state, is enough. It also says that translations cannot receive an apostille or be legalised, since translators do not produce public documents, and that translations should be done by a sworn or certified translator in Germany. The practical order is therefore: sign before a notary or comparable official in your country, obtain the apostille where applicable, have the translation done, and send everything to the German notary in good time. Confirm with the notary which authentication level it needs before you incur costs.

Acting without authority

A person who concludes a contract in your name without authority binds you only if you approve it (§ 177(1) BGB). If the other party asks you for a declaration, it must be given to that party, and approval can only be declared within two weeks of receiving the request; if it is not, it counts as refused (§ 177(2)). A power therefore protects both sides; a defective one can leave a purchase in limbo. Do not allow an agent to sign on a power you have not seen certified.

Which professional to consult

The notary is the person who tells you whether the power fits the deed. A real estate lawyer can draft the power and explain its scope, and a sworn translator can translate it. Payotte does not rank notaries.