Mandatory attendance (notary)

Requirement to Be Present (Notary) - The requirement to be present at notarial authentications obligates all contracting parties to appear in person before the notary during the reading and signing of the deed (Section 13 of the Notarial Authentication Act - BeurkG). This ensures the educational and advisory function of the notarial certification and is mandatory for real estate purchase agreements.

Legal Basis and Purpose

The notarial certification of a real estate purchase agreement is required by law under § 311b(1) BGB - without it, the contract is void. Under § 13 BeurkG, the notary must read aloud the entire transcript to the parties involved, and all contracting parties must be present during the reading. This serves a dual purpose: On the one hand, the notary is to inform the parties of the legal implications of their transaction and ensure that both sides understand the content of the contract (duty to inform under Section 17 of the Notarial Deed Act). On the other hand, personal presence protects against hasty decisions and verifies the identity of the contracting parties.

The notary is obligated to read the document in its entirety to the parties involved-simply handing it over for them to read themselves is not sufficient. During the reading, the parties have the opportunity to ask questions, request changes, and discuss the content of the contract. As an impartial advisor, the notary must inform both sides equally and may not favor the interests of one party. Particular care is required if a party to the contract does not speak German-in this case, an interpreter must be consulted (Section 16(2) of the Notary Act), and the notary must note this in the deed.

Representation and Digital Notarization

Personal attendance may be replaced by representation via power of attorney. The power of attorney must generally be notarized itself or at least certified by a notary if it is to be used for the notarization of a real estate purchase agreement. A common practice is the so-called power of attorney through the notary: If a party cannot attend the notarization appointment, they grant a notarial power of attorney to an employee of the notary’s office or a person they trust, which is then presented at the notarization appointment. The notary verifies the validity of the power of attorney and notes it in the deed.

Since August 1, 2022, Section 16a of the Federal Notary Code (BNotO) has permitted notarization via videoconference for certain legal transactions. However, this online notarization is limited to transactions that are entered in the commercial, cooperative, partnership, or association registers - real estate purchase agreements are currently excluded from this. For real estate transactions, physical presence at the notary’s office (or representation by an authorized agent) remains mandatory.

Overview: Presence, Power of Attorney, Alternatives

Situation	Solution	Requirements	Costs
Buyer/seller present	Personal appearance	Photo ID (ID card/passport)	No additional costs
Party unable to attend (domestic)	Notarized power of attorney	Separate notarization; authorized representative appears	€50-200
Party abroad	Notarized power of attorney (in German) or apostille	Notary abroad + apostille (depending on the country)	€100-500
Language barrier	Interpreter (Section 16(2) BeurkG)	Notary appoints a sworn interpreter	€150-400
Company as a contracting party	Representation by managing director/authorized representative	Commercial register extract + power of attorney if applicable	€0-100

Practical tip for Nuremberg and the metropolitan region

In real estate sales within the Nuremberg metropolitan area, we regularly encounter situations where buyers or sellers cannot appear in person at the notary appointment-for example, because they live abroad for work or are unable to attend due to health reasons. In such cases, we recommend discussing the option of a notarized power of attorney with the certifying notary well in advance. In Nuremberg, Fürth, and Erlangen, it is standard practice for a notary to notarize the power of attorney separately and forward it to the notary handling the transaction in a timely manner. The cost for a separate power of attorney notarization ranges from approximately 50 to 200 euros, depending on the transaction value. We coordinate the scheduling of appointments between the involved notary offices on behalf of our clients and ensure that all documents are available on time.

Frequently Asked Questions

As the buyer, do I have to appear in person at the notary’s office, or can someone represent me?

Representation is generally possible. The authorized representative requires a notarized or certified power of attorney that covers the specific purchase agreement. Many notaries in Nuremberg offer to notarize the power of attorney separately in advance and forward it to the notary performing the notarization. It is important that the power of attorney is sufficiently specific and clearly identifies the specific legal transaction-some land registry offices do not accept a general power of attorney.

Can a real estate purchase agreement be notarized via video conference?

No, not at this time. The option for online notarization under Section 16a of the German Notaries Act (BNotO), effective since August 2022, is limited to transactions subject to registration law (e.g., the formation of limited liability companies). Real estate purchase agreements still require physical presence at the notary’s office or representation by an authorized agent. While an expansion to real estate transactions is under discussion, it has not yet been decided.

What happens if a party to the contract cancels the notary appointment at short notice?

The appointment must be rescheduled, as the notarization cannot be validly performed without the presence of all parties to the contract (or their authorized representatives). The notary generally does not incur any fees as a result of the cancellation-fees are only incurred at the time of the notarization itself. However, a repeated or unjustified cancellation may have consequences under contract law: If a binding preliminary contract has already been concluded, the other party may, under certain circumstances, insist on performance of the contract or claim damages.

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