Buying a property: what to look out for

The checklist at a glance

Each point below has its own section. The table shows where you get the document. If something is missing, ask early. A seller who hands over documents only after repeated requests is also telling you something.

Land register: who owns what

The land register answers two questions. Is the seller really the owner? And who else has rights in the property?

Section I answers the first question. The second needs more attention. Section II lists rights of residence, usufruct, rights of way and priority notices. A registered right of residence can mean that someone may stay in the flat until they die. That reduces the value considerably. Section III lists the land charges held by the seller's banks. They are normal, but they must be deleted before your money reaches the seller. The notary arranges this.

Insist on a current extract. How the sections are built up in detail is explained in the guide Notary appointment and land register.

Declaration of division and community regulations

The declaration of division sets out what belongs to you alone and what belongs to everyone. Individual ownership covers the flat itself. The stairwell, roof, facade and load-bearing walls are common property. In between are special-use rights, for example to a share of the garden, a cellar room or a parking space. If the parking space in the brochure is not in the declaration of division, it does not belong to you either.

The community regulations (Gemeinschaftsordnung) govern everyday life. May the flat be used commercially or let short-term? Who pays for the flat's own windows? How are costs shared? As a rule your co-ownership share decides, but the community regulations can provide otherwise. Details and the Berlin rules on conversion are in the guide Declaration of division and conversion ban.

Service charge and maintenance reserve

The service charge (Hausgeld) is your monthly advance payment to the owners' association. It covers management, insurance, caretaker, cleaning, often heating and water, and a share for the maintenance reserve. If you let the flat, part of it can be passed on to the tenant and part cannot. Ask about both amounts.

More important than the size of the service charge is the reserve in relation to the work the building needs. The law requires an adequate reserve (§ 19 para. 2 no. 4 WEG, Condominium Act) but names no amount. You can only see whether it is enough when you put the reserve and the upcoming works side by side. An example:

Example with assumed figures. The community regulations can set a different allocation key for individual costs.

Who pays if the levy has already been approved but only falls due after you are entered in the land register? Towards the community, under the case law of the Federal Court of Justice, it is owed by the owner at the time it falls due, so possibly you. Between themselves, buyer and seller can agree otherwise in the purchase contract. That is exactly what should be in it. More in the guide Service charge, special levy and maintenance reserve.

Energy certificate and heating

The seller must show you the energy performance certificate at the latest at the viewing, without being asked (§ 80 Building Modernisation Act, Gebäudemodernisierungsgesetz, formerly the Building Energy Act). After the purchase contract you receive it in hand.

Check which type of certificate it is. A consumption-based certificate shows how much the previous occupants heated. If they were frugal or the flat stood empty, the building looks better than it is. The demand-based certificate calculates from the building itself and is easier to compare. Also ask about the age of the heating system. An old oil or gas boiler can trigger an obligation to replace it after the purchase. What to check on this at the viewing is in the viewing checklist, and the basics on the certificate are in the guide Energy performance certificate.

Rights of first refusal and tenants

Two rights of first refusal can take away a purchase you thought was certain.

The first belongs to the tenant. If the flat was converted into owner-occupied property after the tenant moved in and is now being sold for the first time, the tenant may step in on your terms (§ 577 BGB, German Civil Code). The tenant has two months. The second belongs to the district under the Building Code (Baugesetzbuch), above all in social preservation areas (Milieuschutz). Since a ruling of the Federal Administrative Court in 2021, it is only rarely exercised. The notary makes the enquiry to the district.

If you buy a let flat to move in yourself, also check the termination protection period. After a conversion it is up to ten years in Berlin. Details are in the guide Tenant's right of first refusal, on the social preservation area map and in the chapter Buying a let flat.

Living space and floor plan

The square-metre figure in the brochure is the basis for the price per square metre. Ask which method was used to calculate it. For flats, the Living Space Ordinance (Wohnflächenverordnung) is widely used. Under it, areas under sloping roofs with a clear height of one to two metres count only half, and under one metre not at all. Balconies and terraces usually count at a quarter, at most at a half (§ 4 WoFlV).

For a top-floor flat, that can easily make a difference of ten square metres, depending on how it was calculated. Take the floor plan with you to the viewing and measure two or three rooms. If the dimensions differ clearly, ask to see the living space calculation. If the floor plan in the declaration of division does not match the flat, for example because walls were moved or a room was added from the loft, ask about the permit and whether the owners agreed.

Financing commitment before the reservation

Many buyers reserve first and ask the bank afterwards. That is the wrong order. If the bank declines or values the property below the purchase price, the reservation is used up and the seller is annoyed.

Distinguish between two papers. A financing confirmation says that a bank has checked your figures and considers a loan of this size feasible in principle. It shows the seller that you can seriously buy. The loan commitment comes later, once the bank has also checked the property. Only it gives you certainty for the notary appointment.

At BBI, Maximilian Vigansky sorts out the financing with you. He is a mortgage broker with a licence under § 34i GewO (German Trade Regulation Act) and presents you with offers from several banks. How much equity makes sense is explained in the article Equity when buying a property, and the route to the bank is described in Mortgage financing in Berlin.

The draft contract: use the 14 days

The notary writes the draft. If you buy as a consumer from a business, such as a developer, you usually receive it two weeks before the notarisation (§ 17 para. 2a BeurkG, Notarisation Act). When buying from a private seller, this period does not strictly apply, but you should still take the two weeks. Read the draft in full and mark these passages:

• Purchase price due date. Which conditions must be met before you pay? A registered priority notice, cleared rights of first refusal and the documents for deleting existing charges are usual.
• Handover. A specific date, or payment as the trigger. From handover you normally bear the service charge and property tax.
• Defects. When buying from a private seller, liability for defects is usually excluded. This does not apply to defects the seller fraudulently concealed (§ 444 BGB, German Civil Code). What the seller has promised you therefore belongs in the contract.
• Special levies. Who bears amounts that are approved but not yet due?
• Inventory. List the kitchen and furniture separately at a realistic value. No real estate transfer tax (Grunderwerbsteuer) is charged on these.

Send requests for changes to the notary's office before the appointment is set. What happens on the day itself and what the additional purchase costs come to are covered in the guides Notary appointment and land register and Additional purchase costs in Berlin. The order of all the steps is shown in the article Purchase process up to the keys.

Sources

• § 17 para. 2a Notarisation Act, draft before the notarisation
• § 19 Condominium Act, adequate maintenance reserve
• § 577 BGB (German Civil Code) and § 469 BGB, tenant's right of first refusal and deadline
• § 577a BGB (German Civil Code), restriction on termination after conversion
• § 444 BGB (German Civil Code), exclusion of liability and fraudulent concealment
• § 80 Building Modernisation Act (formerly the Building Energy Act), presentation of the energy certificate
• Federal Court of Justice (Bundesgerichtshof), judgment of 15 December 2017, V ZR 257/16, special levy after a change of owner; Federal Administrative Court (Bundesverwaltungsgericht), judgment of 9 November 2021, 4 C 1.20, right of first refusal in preservation areas