Seizure

In real estate law, “taking possession” refers to the point in time at which the buyer gains actual control over a property-that is, receives the keys and is permitted to use the property. It should be distinguished from the legal transfer of ownership (land registry entry) and generally corresponds to the date of transfer of possession agreed upon in the purchase contract. From the moment of taking possession, the buyer bears the benefits and burdens of the property, including rental income, operating costs, insurance obligations, and the risk of damage.

Taking Possession vs. Transfer of Ownership

The transfer of ownership (entry in the land registry) usually takes place weeks to months after taking possession. In practice, there are three phases: 1. Purchase agreement (notarization), 2. Taking possession (economic transfer, handover of keys), 3. Transfer of title in the land registry (legal transfer of ownership). Between taking possession and the transfer of ownership, the priority notice of conveyance in the land registry protects the buyer from unauthorized dispositions by the seller.

Taking possession generally requires full payment of the purchase price or a release declaration from the notary. Before issuing the notice of due date, the notary verifies whether all conditions specified in the purchase agreement have been met: the land register is free of encumbrances, all official approvals are in place, any preemptive rights have expired, and the priority notice of conveyance has been entered. Only once this checklist has been completed does the notary release the purchase price for payment.

Handover and Handover Report

At the time of taking possession, it is advisable to prepare a written handover report: It documents the condition of the property, the handover of keys, plans, operating instructions, and documents, as well as meter readings (electricity, gas, water, district heating). A detailed report prevents future disputes over whether a detected defect was already present at the time of handover or arose afterward.

The handover report should cover the following points: all keys handed over (number and purpose), meter readings as of the handover date, defects and special features identified during the inspection, as well as all documents provided, such as the energy performance certificate, floor plans, operating manuals for heating and other technical systems, maintenance contracts, and-for condominiums-the current condominium association documentation. Both parties sign the report, with one copy remaining with the buyer and one with the seller. We assist our clients during the handover and jointly prepare a complete report.

Obligations and Benefits Upon Taking Possession

Upon taking possession, all economic rights and obligations are transferred to the buyer: They receive ongoing rental income (for rental properties), bear the operating costs and property tax, must adjust insurance policies, and are liable for any damages that occur from this point forward. It is therefore important to precisely define the handover date in the purchase agreement-especially for rented properties, lease agreements, security deposits, and ongoing accounts should be properly transferred.

For rental properties, the following handover points require particular attention: The security deposit must be transferred in full from the seller to the buyer-the buyer assumes the obligation toward the tenant and is liable for its proper return. Ongoing standing orders, property management contracts, and utility contracts must be transferred to the buyer or re-signed. Tenants must be informed in writing of the change in ownership and the new bank account.

Risks of Premature Possession

Sometimes the buyer wishes to receive the keys before the purchase price has been paid in full or before the notary’s notice of due date. While this is legally possible, it carries significant risks: If the seller becomes insolvent after the keys are handed over, before the purchase price has been received by the notary and correctly transferred, the insolvency administrator may file claims against the property. Although the priority notice of conveyance offers protection, a seamless transaction via the notary’s escrow account is significantly safer. We generally recommend that the keys be handed over only after the notary’s written notice of due date has been received.

Practical Tip for Property Owners in Nuremberg and Franconia

In Nuremberg and the metropolitan region, 4-8 weeks typically elapse between notarization and taking possession. Possession is typically taken after full payment of the purchase price and receipt of the notary’s notice of due date. In practice, the receipt of the real estate transfer tax clearance certificate from the tax office is often the determining factor; the tax office generally requires 3-6 weeks for this after payment of the real estate transfer tax.

We coordinate the handover date for our clients, ensure that all documents are complete, and personally accompany the key handover so that buyers and sellers can experience the moment safely and relaxed. After the handover, we remain available as a point of contact-for questions regarding utilities, property management, or any organizational tasks that arise in the first few weeks after moving in.

Frequently Asked Questions

Can possession be taken before the title is transferred in the land registry?

Yes, this is the norm. The priority notice of conveyance protects the buyer in the meantime. However, taking possession without a prior notice of due date from the notary is risky-the seller could go bankrupt before the purchase price has been properly transferred.

What happens if defects are discovered during the handover?

Liability for material defects is generally excluded in the purchase agreement; known and disclosed defects are already factored into the price. Newly discovered defects that were fraudulently concealed can still be claimed. A thorough handover report is the best protection against disputes. We recommend systematically inspecting all rooms, the basement, the attic, and technical systems during the walk-through shortly before the handover and immediately noting any discrepancies in the report.

Who pays the utility costs between the signing of the purchase agreement and taking possession?

Until the handover date, the seller bears all running costs and receives all benefits. From the agreed handover date (taking possession), costs and revenues are transferred to the buyer. Utility bills are divided proportionally based on the time period.

What should be done if the seller does not vacate the property on time?

If the seller does not vacate the property by the agreed-upon handover date, they are in default. The buyer may claim damages for each day of delay and, in extreme cases, sue for possession. Penalties are often agreed upon in the purchase agreement for this scenario. We also support our clients in such conflict situations and, if necessary, refer them to experienced real estate attorneys.

How does taking possession work in a foreclosure auction?

In a foreclosure auction, ownership is transferred after the property is awarded by the enforcement court and the highest bid is paid. There is no handover protocol and no voluntary transfer of keys by the former owner. If necessary, the new owner must assert possession through the courts. We recommend that prospective buyers in foreclosure auctions conduct a particularly thorough preliminary review of the situation.

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