Notary Liability

Notarial liability refers to a notary’s responsibility for damages caused by a culpable breach of their official duties. In Germany, notaries hold public office and act on behalf of the state-they therefore have a special duty of care. In the event of errors in notarization, omissions in legal advice, or the improper drafting of contracts, they may be liable for damages.

Legal Basis for Notary Liability

The notary’s liability arises from Section 19 of the Federal Notary Code (BNotO): According to this provision, the notary is liable if he intentionally or negligently breaches his official duties and thereby causes damage to the party involved. This liability is subsidiary-that is, it applies only if the damage cannot be averted in any other way. In practice, this means that injured parties must first exhaust other legal remedies (e.g., claims against contractual partners) before they can seek recourse against the notary.

Every notary is also required to maintain professional liability insurance. This covers damages resulting from breaches of official duties for which the notary is personally responsible. The minimum coverage amount is 500,000 euros per claim-however, this amount may not be sufficient for high-value real estate transactions.

Typical Breaches of Official Duties in Real Estate Law

In the real estate sector, cases of notary liability arise in the following situations:

• Faulty notarization: Omission of essential contract elements, incorrect representation of the parties’ intentions
• Failure to fulfill the duty to inform: The notary has a duty to inform all parties involved about the legal implications and consequences-if this is neglected, he may be held liable
• Errors in execution support: The notary typically oversees the entire execution of the purchase agreement (registration of the priority notice of conveyance, notice of due date, land registry entry). Delays or errors here can cause damages
• Failure to identify encumbrances: If the notary fails to point out existing encumbrances on the land register, he may be liable
• Errors in identifying parties: If a contracting party is not properly identified and the contract is signed by an unauthorized person, the notary is liable for any resulting damages

Statute of limitations and assertion of claims

Claims for damages against the notary generally become time-barred three years after becoming aware of the damage, in accordance with the general provisions of the German Civil Code (BGB) (Sections 195, 199 BGB). The absolute statute of limitations is ten years from the date of the harmful event. Anyone who suspects damage resulting from notarial misconduct should seek legal advice at an early stage and not allow the deadline to pass.

Before taking action against the notary, the facts of the case should be reviewed by a specialist attorney in real estate law. Notary liability is subsidiary-meaning that it must first be determined whether the damage can be averted or compensated for by other means. Additionally, the complaints office of the State Chamber of Notaries may be contacted if a breach of professional duties is suspected.

Practical Protective Measures for Buyers and Sellers

The best way to prevent losses caused by notary errors is to actively participate in the notarization process. Buyers and sellers should carefully read the draft contract, clarify all questions in advance, and listen actively during the notarization appointment. If you do not understand a passage, you should ask the notary for an explanation-that is their job and costs nothing.

Practical Tip for Property Owners in Nuremberg and Franconia

Errors in notarial certification are rare but can have significant financial consequences. We recommend that buyers and sellers in the Nuremberg metropolitan area carefully read the notary’s draft contract and clarify any open questions before the certification appointment-we are happy to assist with this. Notaries are obligated to provide instruction; this obligation should be actively enforced. Anyone who notices a potential error should promptly consult a specialist real estate attorney in Nuremberg.

Frequently Asked Questions

Can I claim damages from the notary if they did not provide me with sufficient instruction?

Yes, provided that the failure to provide adequate advice was the cause of the damage. However, the burden of proof lies with the injured party: They must demonstrate that they would have acted differently had they received proper advice, and that the damage would therefore not have occurred. This requirement of causation is often difficult to prove in practice.

Is the notary liable for errors made by their employees?

As a public official, the notary is also liable for errors made by their clerks and employees, provided these errors were committed in the course of their duties. The notary’s personal liability remains unaffected. Professional liability insurance should therefore cover all employee activities.

What is the coverage limit for a notary’s professional liability insurance?

Notaries must demonstrate a minimum coverage of 500,000 euros per claim (Section 19a BNotO). However, in the case of high-value transactions-such as those frequently encountered in the real estate sector-this amount may be exceeded; in such cases, the notary is personally liable for the remaining damages with their entire personal assets.

What should I do if I only notice a possible notary error years later?

First, the statute of limitations must be examined: The absolute limitation period of ten years begins with the damaging event, not upon discovery. Anyone who becomes aware of the issue late should immediately consult a specialist real estate attorney to ensure no further deadlines are missed. At the same time, it is advisable to secure all relevant documents-in particular the notarial deed, correspondence, and land registry extracts. The attorney will then assess whether filing a complaint with the Bavarian State Chamber of Notaries or bringing a civil lawsuit is likely to be successful. In many cases, an out-of-court settlement with the notary’s professional liability insurance is faster and more cost-effective than litigating the matter.

Delimitation of Liability: Notary and Involved Attorneys

In more complex real estate transactions-such as those involving developers, financial investors, or multiple owners-attorneys often act in an advisory capacity on behalf of the buyer or seller. The question of who is liable for damages is not always clear-cut in such scenarios. The notary is liable for errors in the notarization and execution of the transaction; the assigned attorney is liable for errors in legal advice. These two areas of liability may overlap. We recommend that, if an error is suspected, both avenues be explored in parallel and that you seek advice from a lawyer specializing in liability law as early as possible-a blanket suspicion against all parties involved is less effective than a structured analysis of the causes.

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