REAL ESTATE PROPERTIES
One of the essential duties of a notary is to draft and authenticate purchase and transfer agreements for developed and raw land or apartments. The notary also provides advice on the advance transfer of real estate properties to the later heirs. He considers any securities recorded in the Land Register, such as right of abode, usufruct or annuity payments. In the construction of new apartments under the Act on the Ownership of Apartments, the notary works with the developer to draft the declaration of partition and in many cases also certifies the associated purchase agreements. If financing is required, the notary assists with creating the required encumbrances (land charge and mortgage).
The purchase or sale of a real estate property is often of great economic significance for all concerned. The notary ensures that the purchase agreement is designed in a balanced and equitable manner. He takes any existing encumbrances into account, such as real estate liens and servitudes, protects the parties against financial losses, procures the required official permits and certifications and ensures that the recording of the change of ownership in the Land Register is carried out smoothly.
A transfer agreement provides for the handover of a property, by a person during their lifetime, to the later heirs by way of inheritance in advance. This is a way of utilizing gift tax and inheritance tax allowances. In most cases, the agreement contains provisions that ensure the transferor can maintain his current lifestyle. These may include the granting of usufructuary rights, the right of abode, or the obligation to provide care. In such cases, the notary advises on the different options for structuring transfer agreements.
BUILDING CONTRACTOR AGREEMENT
The building contractor’s role in the construction and sale of residential or commercial real estate is defined by a number of consumer protection regulations (e.g. the Ordinance on Brokers and Building Contractors (MaBV). The notary ensures that these regulations are complied with while also considering the building contractor’s risk towards third-party loans or his personal investment. The focus here is on the specific details of each project. He is usually involved from the start of the planning, the purchase of the land and the development of the building specifications, until the sale of individual units. The building contractor agreement requires authentication by the notary and numerous regulations must be observed, from the construction status to the corresponding payments, as well as compliance with warranty provisions.
LAND CHARGE AND MORTGAGE
For the financing of large-scale loans, the creditor – usually the bank – requires collateral. Particularly in the purchase of real estate, so-called “real estate liens” are created against the property concerned, which can be exercised if the debtor fails to meet his payment obligations. While the land charge is independent from the collateralized receivable, and may thus be used for a number of transactions, the mortgage amount is tied to the specific loan amount.
A land charge may be recorded in the Land Register without accompanying documentation (“land charge deed”). It establishes an individual right of the creditor, which exists independently of the specific loan agreement. Authentication by the notary is recommended in order to deal with the complex requirements of land charges and mortgages in an equitable way. If, and this is usually the case, in addition to the land charge, a declaration of acceptance of immediate enforcement and personal debt assumption is required, a notarial certification of the agreement is legally mandated for clarification and the protection of the debtor.
Although in Germany a building cannot be purchased without the attached land, the Act on the Ownership of Apartments provides for the possibility to purchase theoretical parts of a plot of land with individual apartments. The notary advises on the drafting of the corresponding declaration of partition, respecting the interests of the seller, purchaser and the community of apartment owners. The contract of purchase of apartment ownership contains provisions on separately owned property (which grants a right of exclusive use to the owner), on jointly owned property (which grants a right of use to all apartment owners) and on special rights of use (which provide for rights of exclusive use granted to individual owners for common areas, such as the basement or car parking spaces).