Notary appointment and land register

Why a notary at all

Under § 311b para. 1 BGB (German Civil Code), a property purchase must be signed before a notary. Without one, the contract is not valid, even if both parties agree and have signed. The reason: a lot of money is at stake. Nobody should sign this in passing, and both parties should know what they are committing to.

The notary is on neither side. The notary must remain neutral and explain to both parties what the contract means. If you need someone to fight your corner, for example on liability or tax, get your own lawyer or tax adviser.

The 14-day period for consumers

If you are buying as a private individual, the notary must usually send you the draft contract two weeks before the appointment. This is set out in § 17 para. 2a BeurkG (Notarisation Act). It is not a courtesy but the notary's duty.

These two weeks are your best tool. Read the whole draft. Ask about anything you do not understand. Send requested changes to the notary's office early. Changes can still be made at the appointment, but then everyone is under time pressure and nobody thinks calmly about the consequences.

Pay particular attention to these points: is the property described precisely, with the details from the land register? Is the purchase price correct, and when do you have to pay it? When do you get the keys? What does the contract say about defects? Which furniture and appliances are included? For an owner-occupied flat, also: how much is in the reserve fund, and has the owners' association resolved on expensive works?

What happens at the appointment

1. The notary establishes who is present and checks identity documents.
2. The notary reads the entire contract aloud. This is mandatory, and for a normal purchase contract it takes forty to sixty minutes. Skimming is not allowed.
3. The notary explains what the contract means for you and answers questions. Interrupt if you do not understand something. That is exactly what the appointment is for.
4. Both parties sign, followed by the notary.

With the signatures, the purchase contract is valid. But the property does not belong to you yet. The contract only obliges the seller to transfer it to you. It only becomes yours once you are entered in the land register.

What the notary does afterwards

• The priority notice of conveyance (Auflassungsvormerkung). This is a placeholder in the land register that reserves the property for you. From then on, the seller can no longer sell it to anyone else or simply take out new loans against it.
• Notifying the tax office. The notary reports the purchase, and the tax office sends you the real estate transfer tax assessment.
• Deleting old loans. The notary obtains the banks' consent to have their land charges removed from the land register.
• The right of first refusal enquiry. The notary asks the district whether it is entitled to buy and wants to. Right of first refusal means that the district may step in on the same terms. In Berlin's social preservation areas (Milieuschutz), this is a topic in its own right; more in the article on the right of first refusal.
• The letter requesting payment. Only when everything is settled does the notary write to tell you that you can transfer the money. Never pay before that, even if the seller asks you to.

Once the money has arrived and the tax office has confirmed that nothing is outstanding for tax purposes, the notary applies for the transfer of ownership in the land register. How long the land registry then takes varies widely. In Berlin, several weeks to months is normal.

Reading the land register

The land register (Grundbuch) is the official record of which plots exist, who owns them and who else has rights to them. It consists of an inventory (Bestandsverzeichnis) and three sections. Ask to see a current extract before you buy, and actually read it.

A land register extract is only as good as its date. Insist on a current one, not one from the previous year.

Not everyone may look at the land register. Only those who can give a legitimate reason are granted access. As a prospective buyer, you therefore get the extract via the seller, the agent or the notary.

Common pitfalls

• Paying too early. If you pay before the notary asks you to, you hand over your money without being protected.
• Keys before money. It happens, but it is risky for the seller and must be clearly set out in the contract.
• Unclear rules on defects. If you buy from a private individual, the contract almost always excludes liability for defects. That is permitted. But it does not apply to defects the seller knew about and concealed from you.
• Missing documents. The energy performance certificate, the declaration of division (Teilungserklärung), the minutes of the owners' meetings and the latest annual statement belong on the table before the appointment, not afterwards.

Sources

• § 311b para. 1 BGB (German Civil Code), form of the property purchase contract
• § 17 para. 2a BeurkG (Notarisation Act), provision of the draft for consumer contracts
• §§ 873, 883, 925 BGB (German Civil Code), agreement, priority notice and conveyance
• Land Register Code (GBO), structure of and access to the land register
• § 22 GrEStG (Real Estate Transfer Tax Act), clearance certificate