Notary Exam

The notary review refers, in the context of real estate law, to the notary’s examination of land registry records, draft contracts, and legal relationships prior to or during the notarization process. It is part of the notary’s comprehensive duty to advise and instruct pursuant to § 17 of the Notarization Act (BeurkG) and is intended to ensure that the notarized legal act corresponds to the true intent of the parties involved and is legally sound.

What does the notary review prior to notarization?

In the context of a real estate purchase agreement, the notary’s preliminary review typically covers the following points:

• Land registry extract: Check for encumbrances (land charges, mortgages, easements, rights of first refusal, real burdens) in Sections II and III of the land registry
• Ownership structure: Who is the registered owner-and does this match the seller? Are there communities of heirs, preliminary heirs, or reversionary heirs?
• List of building encumbrances: In Bavaria, building encumbrances are entered in the building encumbrance register of the building authority and are not visible in the land register-the notary points out their existence
• Rights of first refusal: Are there statutory rights of first refusal held by the municipality (Section 24 of the German Building Code) or contractual rights of first refusal held by third parties?
• Powers of attorney: Are representatives acting on behalf of the parties? Are the powers of attorney valid and sufficient?
• Requirement for approval: Does the contract require approval (e.g., for property sales by certain legal entities or in cases of official requirements)?

The notary is responsible for ensuring that all documents and approvals required for the execution of the purchase agreement are available before issuing the notice of due date.

Notary Review During the Notarization

At the notarization appointment, the notary is obligated under § 17 BeurkG to fully ascertain the intentions of the parties, clarify the facts of the matter, and explain the legal implications of the declarations to the parties. He reads the deed in its entirety and must ensure that all parties understand the implications of their statements-if necessary, with the assistance of an interpreter.

If, during the notarization, the notary determines that essential aspects remain unclear or that the contract is legally questionable, he must refuse or interrupt the notarization. If there are doubts regarding the legal capacity of a party, the notary must examine the matter with particular care.

In the case of consumer contracts, § 17(2a) of the Notary Act (BeurkG) also applies: The notary must inform the consumer (buyer) of the content of the contract at least 14 days prior to the notarization date. This period serves to protect the buyer from making hasty decisions.

Limits of the Notary’s Review

The notary’s review is not comprehensive legal advice in the sense of legal counsel provided by an attorney. The notary is a neutral public official-he does not provide one-sided advice in the interest of the buyer or seller. Any party wishing to have their interests represented by an attorney should additionally consult a specialist attorney for real estate law.

Furthermore, the notary does not review the project’s compliance with building codes, technical defects in the building, or the tax implications of the purchase. These aspects fall outside the scope of his official duties. He points out obvious risks but does not guarantee the economic viability of the purchase.

Practical Tip for Property Owners in Nuremberg and Franconia

We recommend that buyers and sellers in Nuremberg and the surrounding region request the notary’s draft contract well in advance-at least two weeks before the notarization date-and read it carefully. Any unresolved questions should be clarified in advance with the notary or a specialized real estate attorney.

In Nuremberg, easements listed in the easement register are a frequent issue, particularly for older buildings in the city center, in Wöhrd, or in the Südstadt-such as sidewalk easements, setback easements, or utility rights. These are not visible in the land registry but can significantly restrict usability. Buyers should expressly ask the notary to clarify the status of these easements. We are also happy to accompany our clients to the notary appointment and point out any special contract clauses in advance.

Frequently Asked Questions

Is the notary required to inform me of all the risks involved in the purchase?

The notary is obligated to provide legal guidance-that is, to explain the legal implications of the contract. However, they are not required to provide economic, tax, or technical advice. For a comprehensive risk assessment, it is advisable to consult a specialist attorney, tax advisor, and building expert.

Can I ask the notary to review certain clauses in particular?

Yes, parties involved can ask specific questions and ask the notary to explain certain provisions or point out risks. The notary is obligated to point out recognizable legal issues-even if not explicitly asked to do so. Active participation during the notarization appointment is therefore strongly recommended.

Does the notary check whether the building has a building permit?

No, that does not fall within the notary’s scope of duties. Buyers are responsible for verifying the building permit status, checking for any unauthorized construction, or identifying building code violations-if necessary, in consultation with the relevant building authority or a building expert. Anyone who purchases an unauthorized structure cannot hold the notary liable.

How long does it take for the notary to prepare a purchase agreement?

Once commissioned, the notary typically prepares a draft contract within one to three weeks, which is sent to all parties for review. The statutory 14-day period for consumers under Section 17(2a) of the Notarization Act (BeurkG) begins upon receipt of this draft. For complex properties-such as hereditary building rights, individual ownership in condominium associations with extensive declarations of division, or properties with multiple encumbrances-the preparation time may take longer. Anyone seeking a notary appointment in Nuremberg on short notice should keep in mind that busy notary offices may have waiting periods of several weeks. We recommend selecting a notary early in the purchase process and compiling all relevant documents-land registry extract, cadastral map, energy performance certificate, declaration of division (if applicable), and information on encumbrances-in advance to avoid wasting time.

Back to the Real Estate Glossary.