As in other legal systems, in Germany a property or condominium can only be effectively transferred by a notarial contract.
The real estate agent may not prescribe the person of the notary. You have the right to choose the notary freely.
Also the seller should not insist on a particular notary. However, when the property is sold by a developer or contractor, it is common practice for the developer to have the contracts notarised exclusively through a single notary’s office. This is because the division of the future apartments is handled centrally in this notary’s office.
Commissioning of a notary only after agreement in principle
If seller and buyer agree in principle on the essential conditions, in particular the price, the notary is commissioned to draw up a draft contract.
The draft consists of typical, recurring elements, but also of individual formulations. There is no uniform text pattern. Even if the notary is a so-called official person (Amtsperson), it cannot automatically be assumed that the proposed draft copy of the contract takes into account the interests of both parties in a balanced manner. A close examination is therefore appropriate.
Important – 14 day waiting period before notarizationIf the vendor is an entrepreneur and on the purchaser’s side there is a private consumer, the notary is legally obliged to grant the purchaser a 14-day period for reflection between the transmission of the draft and the actual notarisation.
Important- Reservation of the Real Estate is not legally binding
An actual binding between both parties is only and exclusively effected by the notarial recording of the purchase contract. This is an essential difference in comparison to the legal practice in other legal systems. In France or also in Great Britain or the USA, preliminary agreements are made before the actual purchase contract, which have a limited term and serve to ensure that the purchaser secures the financing of the property purchase. There is no such legal institution in Germany. The reservation agreements often used by real estate agents do not guarantee the prospective buyer any right to purchase the property.
The bank must agree as wellIf the purchase price has to be financed, the draft of the purchase contract should be submitted to the financing bank for examination and approval before the notarisation. If mistakes are made here, the buyer risks in the worst case the revocation of the financing promise of the bank. Very important: after the notarisation of the purchase contract there is no automatic right of withdrawal under German law in the event that, contrary to expectations, the financing of the purchase price is not successful after all.
Payment is due to pay only after registration of the buyer in the land registryAfter the day of the notarisation of the purchase contract, the notary is responsible to have the buyer’s claim secured in the land register as soon as possible (the so called Vormerkung). This is because as long as a so-called priority notice in favour of the buyer is not entered in the land register, the property can theoretically be sold several times by the seller.
The notary public is obliged to draft the purchase contract deed in such a way that the purchase price cannot become due before the land register safeguarding of the buyer’s claims. In general it can be said that the notary has a so-called fiduciary function. He shall formulate the deed in such a way that the risk of unsecured advance performance is as low as possible for both parties.
After payment of the purchase price, several months may pass until the purchaser is actually entered in the land register as the new owner. The notary public is responsible for the registration.
last but not least – Who bears the costsIn Germany it is common practice that the costs of the notary are borne by the purchaser alone.