The purchase of a property

For many people, buying a property is a major, if not the biggest financial investment of their lives. To protect both the seller and the buyer from unpleasant surprises, the purchase contract for a plot of land, a house, a condominium or a heritable building right must be notarized. The notary advises both the seller and the buyer before the purchase agreement is signed and, once the purchase agreement has been signed, takes care of the processing and execution of the deed up to the transfer of ownership in the land register. It is important to know that the purchase price is not paid on the day the purchase contract is signed, but only when the notary has made the purchase price due. Nor does the buyer become the owner on the day the purchase contract is signed, but only when the buyer is entered as the owner in the land register.

The contracting parties should pay attention to the following special features:

1. foreign party

In the case of a foreign party, it must be remembered that an interpreter may have to attend the notarization. The parties can waive the requirement for a sworn interpreter. However, close family members are excluded from acting as interpreters. The notary Ms. Bürsgens-Dyllong speaks fluent Spanish and can carry out notarizations and certifications in Spanish, so that in this case a translator may not be necessary.

2. matrimonial property regime of the parties

The matrimonial property regime of the parties involved is important, as this may result in a restriction on the disposal of the selling spouse, for example. For example, if the seller of a property, who is the sole owner in the land register, is married under the statutory German matrimonial property regime of community of accrued gains ("without a marriage contract"), there may be a requirement for consent to the sale of the other spouse's property if the property to be sold is the assets as a whole (i.e. generally less than 10% of the total net assets or 15% in the case of smaller assets). If the spouse agrees to the sale as part of the notarization, a sale is possible. If one spouse does not consent, the purchaser cannot become the owner of the property, the land register is incorrect and acquisition in good faith is not possible. In the case of foreign matrimonial property regimes, the spouse's consent may also be required.

3. authorized representative

If an authorized representative acts on behalf of one of the contracting parties, the power of attorney must also authorize him/her to conclude the purchase agreement. Either the original power of attorney or a copy of the power of attorney must be submitted to the notary. A certified or simple copy is not sufficient.

4. representative without power of attorney

A representative without power of attorney is a person who signs the purchase contract for one of the contracting parties without being able to present a power of attorney. This is the case, for example, if one of the contracting parties falls ill and instructs their spouse to carry out the notarization on their behalf. The represented party must then subsequently approve the notarization before the notary, which incurs further costs for the notary.

5. sale by a minor/guardian

Minors are generally represented by their parents and persons under guardianship by their guardian. If a property is sold by a minor or a person under guardianship, court approval from the family or guardianship court is generally required. If a mortgage must be created for the buyer, approval must also be obtained for this. As a rule, the notary is commissioned to obtain the court approval and to notify the other contracting party of the approval and to receive the notification from the respective contracting parties. 

6. sale by the heir

The transfer of the property to the heirs is free of charge at the land registry within 2 years of the inheritance. If the entry is not made within this period and the heirs wish to sell a property, they may wish to sell the property without the heirs being entered in the land register first in order to save costs. If a certificate of inheritance is available, a sale is possible without any problems, even without an interim entry. If such a certificate of inheritance is not available, the buyer is taking a risk and an interim entry should be made. This is necessary anyway if the buyer is financing the purchase price and a mortgage has to be created before the transfer of ownership.

With regard to the property itself, there are special features to consider in numerous constellations. In addition to the general points to consider when buying a property, this article outlines the special features of a rented property.

7. check land register status

The buyer should inform himself about the status of the land register by submitting an extract from the land register. Although the notary to be notarized usually inspects the land register prior to notarization, the buyer should nevertheless obtain information about the ownership structure and any encumbrances (e.g. rights of way or land charges) in good time.

8. two-week period for the participation of a consumer

If the buyer or seller is a consumer within the meaning of the German Civil Code (BGB), the notary must make the draft purchase agreement available at least two weeks before the notarization date. In addition, the notary must ensure that the parties sign the notarial contract in person or through a trusted person. This regulation serves to protect the consumer, who should have sufficient time to make inquiries and consider whether to sign the contract in this way. The consumer should be protected against haste and have sufficient time to clarify whether the price is reasonable and whether any financing can be arranged. In addition, the consumer has enough time to contact his tax advisor if necessary and to clarify technical questions regarding the property. The requirement to be present in person serves to give the parties the opportunity to clarify questions directly with the notary. 

There are countless constellations in which further special features need to be taken into account. The notary discusses these with the contracting parties and draws up the purchase agreement accordingly. The purchase agreement is read out in full by the notary at the appointment so that the contracting parties can ask questions and clarify any ambiguities during the notarization.