Priority notice (Auflassungsvormerkung) when buying

The gap it covers

A sale produces two separate things: the contract, which gives the buyer a claim to be made owner (§ 433 BGB, in notarial form under § 311b), and the transfer, which needs agreement plus registration (§ 873). Until registration the seller is still the owner on the register. In principle he could sell again, mortgage the property, or see it seized by a creditor.

Section 883(1) lets a priority notice secure a claim to the grant of a right in land, and the same section allows it to secure a future or conditional claim. The buyer’s claim to ownership qualifies.

What the notice does

Three effects follow from the statute.

• Later dealings are ineffective. A disposal made after the entry is ineffective to the extent that it would defeat or impair the claim; the same applies to enforcement measures and to dealings by an insolvency administrator (§ 883(2)).
• Rank is fixed. The rank of the right to be acquired is determined by the date of the notice (§ 883(3)).
• The buyer can demand cooperation. If someone acquires a registered right in a way that is ineffective against the buyer, the buyer can demand that person’s consent to the entry or deletion needed to realise the secured claim (§ 888(1)).

This is not ownership. The notice leaves the seller on the register and only protects the buyer’s claim; the buyer still has to be registered as owner at the end.

How it is entered

The register entry rests on the consent of the owner affected, or on a court order (§ 885(1) BGB; § 19 GBO), and the entry may refer to the consent for details of the claim (§ 885(2)). The consent must be proved in a public or publicly certified document (§ 29(1) GBO), which in practice is the notarised contract. The entry happens on application (§ 13 GBO), which the notary submits as soon as the deed can be filed (§ 53 BeurkG). Because an entry should be made only where the person affected is registered as the right-holder (§ 39 GBO), the notice presupposes that the seller is the registered owner, which is a reason to read the extract first; see the guide on the land register extract.

Where does it appear? Section II of the sheet contains priority notices and objections concerning ownership (§ 10(1)(b) of the register ordinance). Look there for your own notice and for any earlier one in favour of someone else, which would rank before yours.

What the notice does not do

It does not pay the price, does not guarantee that the property is free of mortgages already registered before it, and does not itself transfer ownership. Rights registered earlier keep their rank over the notice. The notice also protects only the claim as described; if the contract is later amended in a way that adds new obligations, ask the notary whether the entry still covers them.

A buyer who knows the register is wrong gets no protection from public faith (§ 892), so the usual route is to read, and not just rely on, the extract.

When it disappears

Once you are registered as owner, the claim the notice secured has been fulfilled. Separately, the owner can demand removal of a notice if he has a permanent defence that excludes the secured claim (§ 886 BGB). Deleting a notice costs a fixed €25 (item 14152).

Which professional to consult

The notary arranges the entry; ask when it will be applied for and how you will be told it is done. See notary and the guide on the notary’s role. A lawyer of your choosing can review the contract clauses that link payment to the entry. For the whole sequence, see buying a home step by step.