Notary

Notary - A notary is a person authorized by law to draw up public documents. In real estate law, this is primarily the notary public, who certifies purchase agreements, land charge deeds, and declarations of division. In certain cases, consuls, civil servants, and judges may also act as notaries. The notary is obligated to remain impartial and neutral and to provide clarification to all parties involved.

Duties and Responsibilities

The notary has the following core duties in real estate transactions: Ascertainment of the intent of the parties involved (Section 17 BeurkG) - the notary must clarify the facts of the matter and ensure that the parties understand the content of the contract. Explanation of the legal implications of the transaction - particularly for inexperienced parties. Reading of the deed in the presence of all parties. Verification of identity through the presentation of official identification documents. Approval and signature - the notary confirms the proper notarization with their signature and seal. The notary is personally liable for errors in the notarization (notary liability, § 19 BNotO).

The notary’s duty to provide information is particularly significant in practice: He must point out typical risks associated with the legal transaction, even if the parties themselves do not ask any questions. In the case of a real estate purchase, for example, this means: pointing out encumbrances and restrictions in the land register, pending approvals, the effects of a clause submitting to enforcement, or tax consequences. Anyone who withholds certain information risks the notary’s liability - which serves as an important protective function for buyers.

Duty of Neutrality

The notary is bound by a strict duty of neutrality-they may not favor either the buyer or the seller. In practice, the buyer often chooses the notary (since they bear the costs), but the notary remains equally obligated to both parties. In the event of conflicts of interest (e.g., if the notary provides legal counsel to one of the parties), they must refuse to perform the notarization. The duty of neutrality also extends to the drafting of the contract-the notary may not formulate the terms in a manner that favors one party over the other.

In practice, neutrality does not mean that the notary cannot make recommendations. If a contractual provision is disadvantageous to one party, a good notary will point this out. Anyone wishing to include individual protective clauses in the contract as a buyer or seller-such as a withdrawal clause in the event of denied financing or a warranty provision for known defects-should inform the notary of this in good time before the appointment so that he can incorporate them into the draft.

Language Barriers and the Notary

If the parties involved do not speak German, the deed must be drawn up in a language they understand or translated by a sworn interpreter who conveys the content orally. In Nuremberg, a city with a high proportion of international professionals and investors, notarization with the assistance of an interpreter is not uncommon. We recommend arranging for an interpreter well in advance-upon request, we can provide suitable contacts.

Practical Tip for Property Owners in Nuremberg

We recommend that buyers and sellers in the Nuremberg metropolitan area carefully select a notary-even though fees are set by law and are the same for all notaries. Differences exist in experience, availability, and quality of advice. For real estate transactions, notaries specializing in real estate law are recommended. There are over 30 notary offices in Nuremberg-the Bavarian Chamber of Notaries maintains a directory of all licensed notaries.

Important: Both parties have the right to receive the draft contract at least 2 weeks before the notarization date (Section 17(2a) of the Notarization Act for consumer contracts). Use this time to carefully review the draft and clarify any open questions with the notary in advance-this makes the notarization appointment more efficient and secure.

Frequently Asked Questions

Can I choose the notary freely?

Yes, in principle, each party has the right to propose a notary. In practice, the buyer usually chooses the notary, as they bear the costs. The other party does not have to agree to this-they can propose a different notary. There is no obligation to use the notary recommended by the real estate agent or the bank. Important: The notary must have their official office in the district where the property is located or where the parties involved reside.

Is the notary liable for errors in the purchase contract?

Yes, under § 19 BNotO, the notary is liable for breaches of official duty-e.g., incorrect advice, failure to make land registry entries, or incomplete drafting of the contract. Liability is based on fault (intent and negligence). Notaries are covered by professional liability insurance (minimum coverage of 500,000 euros, though in practice it is significantly higher). Affected parties may claim damages directly from the notary and their insurance company.

Why must the notary read the deed aloud?

Reading the deed aloud is mandatory under § 13 BeurkG. It serves to protect the parties involved: Reading the document aloud ensures that everyone is familiar with and understands the full text of the contract. During the reading, questions may be asked and changes made. It is not possible to waive the reading-a deed drawn up without being read aloud is null and void. For a standard purchase agreement, the reading takes approximately 30-45 minutes.

Can the notarization take place via video conference?

Since the introduction of online notarization (Section 16a BeurkG) in 2022, it has been possible in certain circumstances to conduct a notarial notarization via a secure video conference. The prerequisite is that the notary is based in Germany and that the technical requirements of the Notarial Video Conference Ordinance are met. However, a restriction currently applies to real estate purchase agreements: Full online notarization of real estate transactions is not yet generally permitted; there are pilot projects and a gradual expansion underway. In practice, real estate purchases in Nuremberg and Franconia are still predominantly notarized in person-buyers and sellers should take this into account when scheduling appointments.

Power of Attorney and Representation at the Notarization Appointment

If a party is unable to attend the notarization appointment, they may be represented by an authorized representative. A prerequisite is a notarized or certified power of attorney-a simple written power of attorney is not sufficient for real estate purchase agreements. The power of attorney can be drawn up in advance by another notary. For international real estate transactions where a party is located abroad, an apostilled notarized power of attorney from the respective country or notarization before the German consulate is possible. We recommend organizing powers of attorney well in advance and having them reviewed for validity by the notary who will authenticate them, as improperly executed powers of attorney can cause the authentication appointment to be canceled.

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