The notary's role in a German property purchase

An officer for both parties

§ 14 BNotO says that the notary does not represent a party but looks after all those involved independently and impartially, and must avoid even the appearance of dependence or partiality. Two consequences follow for a foreign buyer who expects a “buyer’s lawyer”.

First, the notary cannot negotiate the price for you or argue your side against the seller. If you want a lawyer who acts only for you, you must hire one separately. Second, the notary is barred from brokering loans or property deals and from taking part in a company doing agency work in a way that would give him control over it (§ 14(4) and (5)). The law thus keeps the notary out of brokerage.

Duties before the signing

§ 17(1) BeurkG obliges the notary to establish what the parties want, clarify the facts, explain the legal consequences and record their statements clearly, taking care that inexperienced parties are not disadvantaged. For a consumer, § 17(2a) adds two things:

• the consumer’s declarations should be made personally or through a person of trust before the notary,
• the consumer should have enough opportunity to study the subject beforehand, and for a land purchase the notary should supply the intended text, normally two weeks before the signing. If the period is shorter, the reasons are noted in the deed.

If you do not receive the draft in time, say so; asking for a later date is the practical remedy. The guide on buying a home step by step puts this in sequence.

During the signing

A land purchase contract needs notarial form (§ 311b(1) BGB). The deed is read to the parties in the notary’s presence, approved by them and signed by hand (§ 13 BeurkG). Other duties of the same law:

• Land register check. Where rights entered in the register are involved, the notary should inform himself of its content; otherwise he should certify only if the parties insist after being warned (§ 21).
• Approvals. The notary points out any official approvals required and notes it in the deed (§ 18).
• Pre-emption. If a statutory pre-emption right might exist, the notary points it out and notes it (§ 20).
• Foreign law and language. Where foreign law applies, the notary must say so, though he need not teach you its content (§ 17(3)). The guide on a notary deed in a foreign language covers the language question.

After the signing

The notary reports the sale to the tax office electronically within two weeks, with a copy of the deed, even if the sale is exempt (§ 18 GrEStG). The transfer agreement (Auflassung) is usually in the same deed, since any notary is competent to receive it (§ 925 BGB). The notary then files what must go to the land registry as soon as the deed can be filed, unless all parties jointly ask otherwise, and should warn of the risks of delay (§ 53 BeurkG). The notary also checks the conditions for the payment of the price, which is billed as supervision work, and later receives the tax clearance certificate for registration. The guide on the priority notice explains the protective entry.

Which professional to consult

Notaries are listed in the official Notarverzeichnis kept by the Federal Chamber of Notaries; § 78l BNotO says anyone may consult it free of charge, and it can show the office’s seat, languages spoken where the notary reported them, and chamber. You check the entry yourself; Payotte does not list, rank or recommend notaries. See the notary page. For independent advice on price or condition, use a property valuer or a lawyer of your own choosing.

Liability

A notary who breaches an official duty intentionally or negligently must compensate the person harmed (§ 19(1) BNotO). When only negligence is involved, he can be sued only if the injured party cannot obtain compensation otherwise, a rule that does not apply to the client relationship in certain activities named in §§ 23 and 24.