The notary: your advisor and contract designer
Our partnerProf. Dr. Alexander Freys is also admitted as a notary.
Notarial certification is required for important legal transactions. The notary is an impartial advisor and holder of a public office conferred by the state. He supports and assists in the drafting of legal transactions and acts as an intermediary between the interests of the parties.
Notaries provide assistance in shaping legal relationships and act as mediators between the interests of the parties.
They are responsible for notarisations of all kinds as well as for the certification of signatures, hand signs and copies. For a large number of legal transactions, notarisation by a notary is even required by law. This is always the case where the legislator considers the assistance of the notary to be necessary because of the far-reaching personal and economic consequences for the parties involved.
Notaries draw up enforceable deeds. Enforcement takes place from them in the same way as from final judgments declared enforceable by the courts. Arbitral awards are also only enforceable if they have been declared enforceable by a state court or a notary.
Buying real estate
For most people involved, the purchase or sale of a property dwarfs all other transactions in terms of financial significance alone. Considerable amounts of saved assets have to be invested and additional loans taken out. For the seller, too, real estate is often the most important item of one's own assets.
To ensure that buyer and seller are properly advised in such an important transaction and to avoid risks, the involvement of the notary is provided for. The notary ensures a legally balanced arrangement and helps to avoid risks, he procures the documents required for the execution and supervises the transfer of ownership in the land register to the buyer. For example, it must be prevented that the buyer pays the purchase price but does not receive the property. On the other hand, the seller must not lose his property without receiving the purchase price.
The notary discusses with the parties to the contract their objectives, informs them about the possibilities of regulation and, based on this, draws up an appropriate and balanced draft of a purchase contract.
Real estate purchase contracts can concern, for example, the acquisition of a building plot, a single-family or multi-family house, a condominium or also a heritable building right. The special features of a property affect the drafting of a contract. This applies in particular to a so-called developer's contract, with which the buyer acquires a plot of land or a share in a plot of land in connection with a building - house or flat - that is yet to be built. The builder of this property is the seller.
Your notary will regulate the following aspects in every real estate purchase contract:
Security of buyer and seller,
- Cancellation or continuation of encumbrances,
- Warranty for defects,
- transfer of possession, use and encumbrances,
- apportionment of development costs and the requirement for a survey (partial land purchase).
Financing should be determined prior to notarisation. If a bank loan is taken out, the buyer should discuss with his bank when the loan can be paid out. The notary will then coordinate the regulation of the due date of the purchase price with the disbursement date. If the financing of the purchase price has already been clarified in detail when the purchase contract is concluded, the lien on the property (land charge or mortgage) serving as security for the loan can be notarised immediately after the purchase contract.
- Glossary of the Bundesnotarkammer on the purchase of real estate
- Leaflet of the Bundesnotarkammer on the purchase of a house
- Glossary of the Bundesnotarkammer on the purchase of flats and property developers
- Glossary of the Bundesnotarkammer on land charges and mortgages
Managing a company places high demands on the owner. This is not least because a business is a dynamic organism that requires decisions and the review of existing structures at all times.
In doing so, an entrepreneur must not only consider business aspects, but also legal aspects. Competent advice is needed to avoid serious mistakes:
- Thus, questions arise first when founding a company.
- They continue with the management of the company.
- Finally, the succession of the company must be planned in order to preserve the business.
The notary can be a reliable help in answering the questions that arise in this context, if only because of his experience.
Inheritance & Gifts
In the Federal Republic of Germany, considerable assets are due to be inherited in the coming years and decades. The legislator provides for the so-called legal succession for the transfer of these assets.
The law does not differentiate whether the estate consists of a single-family house, apartment building, savings book, securities deposit, company, etc. The right of inheritance also does not depend on the type of property. The right to inherit also does not depend on whether the deceased had a good relationship or no contact with the individual relatives entitled to inherit. If there is a company in the estate, there is no question as to whether the heirs are also in a position to continue the company. It goes without saying that tax structuring possibilities are usually not optimally exploited by the legal succession. The list could easily be continued.
However, the law also provides the opportunity to structure the succession of assets largely individually. Only the so-called compulsory portion claims of close relatives set certain limits.
The succession of property itself can take place in two different ways. One is succession by inheritance , i.e. upon the death of the testator, and the other is anticipated succession, i.e. during the lifetime of the transferor. Both approaches have advantages and disadvantages and in some cases also completely different effects, so that none of the approaches mentioned can be described as better across the board. In many cases, a combined solution between anticipated succession and a will is the most advantageous. In this case, numerous legal provisions must be observed in order to make the right arrangements. In many cases this is not possible without advice.
The notary, whose "daily bread" is dealing with these questions, will be able to find the right solution for you in a discussion with you and put it into a legal dress.
From 1.1.2012, all notarial deeds relevant to succession will be recorded in a Central Register of Wills at the Federal Chamber of Notaries. In the event of death, the register authority will notify the depositary so that the deed can reach the competent probate court without delay. This ensures that your last will and testament is valid.
The establishment of a life partnership, marital or non-marital, is probably one of the most important decisions in your life.
The partners are ready to shape their future together. The law primarily offers marriage for the common path of life. Same-sex couples have the option of a registered civil partnership. In addition, there are an increasing number of so-called non-marital partnerships.
Living together raises numerous questions that should be considered, such as:
- What happens to the sole assets, what happens to the mutual assets?
- Should assets (e.g. real estate) be acquired jointly or alone and what are the tax consequences?
- Am I liable for my partner's debts?
- Am I covered for my old age?
- Am I entitled to payments in case of illness and disability or should I expect claims from my partner?
- What rights and obligations do I have with regard to joint children?
- What happens in the event of separation?
- What rights do I have in the event of death?
- What applies in the case of an "international marriage"?
The answers to these questions vary greatly depending on whether the partners live together in a marital, civil partnership or non-marital relationship. However, the law offers the possibility of making individual agreements and independently choosing the appropriate arrangement.
The prerequisite for this is precise knowledge of the legal situation. As an impartial advisor, the notary can provide this knowledge and offer a reasonable and balanced contract. The notary helps the partners to find a tailor-made legal dress for their personal life situation.
But also with regard to the relationship between parents and children, including questions of adoption, the notary is the right contact person.
As the holder of a public office, the notary is active in the entire field of preventive administration of justice. Through his supervisory and advisory function, the notary helps in many ways to avoid disputes from the outset or to settle disputes that have already arisen by means of an amicable solution.
But also where no agreement is possible, the notary can decide a dispute as an arbitrator due to his independent and impartial position as well as his expertise. By involving a notary, lengthy and costly disputes in court can usually be avoided.
Through the involvement of the notary as a professional advisor in the context of the conclusion of a contract, disputes between the various parties to a contract often do not arise in the first place. This applies to the notary's advice, the preparation of drafts, the actual conclusion of the contract (notarisation) as well as to the execution of a contract. In all these phases, the notary, unlike the lawyer, is obliged to serve the interests of both parties.
Due to his legal position as an independent and impartial guardian of the parties involved, the notary pays attention to a fair balance of interests of all contracting parties. The statutory duties of clarification, verification and instruction as well as the prescribed formalities under the Notarisation Act help to ensure that open questions and problems are clarified in advance and in connection with the conclusion of the contract. The notarial deed is formulated clearly, unambiguously and without open points. As a public deed, it provides full proof of the authenticated transaction, and as an executory title it saves the need to go to court.
Both due to his particularly qualified training and due to the legally prescribed compulsory notarisation of various types of contracts, the notary acquires sound specialist knowledge in many areas, which is indispensable for proper advice. The probability of later disputes is therefore low with notarial contracts.
The emergency should not catch anyone unprepared - also in legal terms. A sudden or age-related illness or accident can not only lead to significant changes in the general personal organisation of life. Illness and accident can also mean that one can no longer (legally) manage one's personal affairs oneself and is dependent on the cooperation of others.
In such situations, the next of kin or the spouse or life partner cannot automatically act and decide for the person concerned. It is therefore advisable to make provisions for such cases. In this way, it can be avoided that other strangers alone decide about one's own further state of health.
The notary prepares powers of attorney and other instructions for these emergencies as precautionary measures tailored to the specific individual case. This guarantees that the powers of attorney and other instructions issued will also be valid in an emergency. Notarial powers of attorney and care orders can be registered in the Central Precautionary Register.
Essentially, the following powers of attorney and instructions are available:
- General power of attorney
- Lasting power of attorney
- Advance directive for care
- Living will
- Glossary of the Bundesnotarkammer on Lasting Power of Attorney & Living Wills