Legal advice in times of the Corona crisis

You can make use of notarial advice and notarial contractual arrangements in many different areas. Listed here are especially important and typical areas of notarial duties.

Corporations

Real estate

Inheritance

Gifts

Family

Contingency planning

Arbitration

Read more about Notary costs.

Herr Dr. Buschkühle has worked for many years drawing up contracts as an attorney-at-law and tax advisor. Having passed the notary examination in 2014 he was appointed as a notary public in 2015. The comprehensive legal and tax law expertise of PKF WMS, even in complex situations, and our extensive experience in advising corporations and entrepreneurs form the proven basis of all notarial arrangements and complex notarization procedures. A highly qualified team of employees guarantees the implementation necessary at courts and public bodies across Germany.

IMPARTIAL
The notary public is available to you and your contractual partners as an impartial advisor in complex and serious legal affairs. Notary publics combine the most stringent legal demands with a professional ethos that is characterized by the neutrality and dignity of a public office.

CONFIDENTIALITY
Notaries public must maintain absolute confidentiality about all matters that they become aware of in the course of their duties and to subject all persons they employ to this duty of confidentiality.

MODERN 
Notaries public are taking a leading role in electronic legal transactions. Qualified electronic signatures with notarial attributes are now enjoy the same level of trust as notary seals with the personal signature of the public official.

SECURE
The notarial deed - sealed and certified - is the quintessence of legal security. The trust that they enjoy in legal transactions originates in the diligence of the notaries public. Only especially qualified and experienced lawyers are appointed as notaries public. Their deeds provide legal security, public peace and protection for the inexperienced.

Sold as seen? Duty of disclosure for the sale of real estate

Honesty is the best policy - this also apples to the sale of an owner-occupied property. If sellers fail to disclose major shortcomings to buyers and “hope for the best”, they incur the risk of becoming liable to pay damages sometime later. When private persons sell a residential property a dispute can arise quickly if buyers find shortcomings after the handover that they were not aware of beforehand. If the roof is not watertight, the foundation is not solid, or mildew appears – some problems only show up after years of use or when building alterations are made. Can the buyer sue for damages? In practice, the warranty covering material or title defects is usually ruled out in the purchase agreement, so that in principle no claims can be asserted.

A disclaimer of warranty, however, does not apply if sellers have fraudulently concealed a defect. They are liable for up to ten years for the costs to rectify the defect in the real estate. The often-held opinion among many sellers that defects do not have to be disclosed to buyers because they can view the property, is therefore incorrect. Sellers must actively point out certain defects in order to protect themselves against far-reaching warranty claims: If sellers are aware of a defect, they must inform buyers without being asked if it would be reasonable to assume that buyers aware of the defect would either not sign the purchase agreement or only do so at different conditions. According to case-law, sellers even have to take action even if they merely consider a defect to be possible or are aware of circumstances that could justify such as suspicion. However, the disclosure duties are also limited. Sellers do not have to inform buyers about defects that could be easily identified during a site visit or about defects of which the buyer is already aware.

The case-law contains numerous examples of such disclosure duties. For instance, sellers must point out if there is no building permit for an extension, if hazardous materials have been used for the construction (e.g. asbestos), if the building is subject to a preservation order or if major works were performed on the building by laymen without the assistance of skilled professionals. Sellers are also obliged to answer buyers’ inquiries truthfully. Even if they lack the necessary information, a false declaration cannot simply lead to freedom from defects. As a result, sellers would be better advised to admit openly that they are not certain about something before providing information haphazardly.

If major defects are discussed prior to the signing of the contract, it is good practice to inform the notary public and to have this documented in the purchase agreement. As an independent and impartial advisor to all of the people involved, the notary public ensures that the discussed defects in the object of purchase and the relevant necessary accords can be recorded in the notarial purchase agreement in a manner that is legally watertight.

Real-estate properties purchased by several people

Real-estate properties are often purchased by several people together, be it married or unmarried couples or by other groups of people. Real-estate buyers have various purchase options available in this context:

1. A commonly used model is the purchase of a property by several parties as co-owners (so-called fractional ownership). The share of the property to which each of the various owners is entitled is noted in the land registry. Each of the co-owners can sell their ownership share without the involvement of the other owners and without their agreement. If this is not desired, it is also possible to draw up rules that, for instance, only permit joint power of disposition over the property. When purchasing a property as a co-owner, care should be taken with the aspect of gift tax: If the ownership shares differ from the financial contributions, the additional financing represents a gift from those providing more funding. The financing of the purchase price is a gift, as is the repayment of a loan by one person - even if this was borrowed jointly by the participants.
   
   Such contributions are problematic, particularly when they take place between unmarried property buyers. Among married couples, the owner-occupied residential properties can be granted as gifts tax free. If the property is not the owner-occupied home, the spouses are still entitled to a tax exclusion amount of € 500,000 (relating to the total gifts over a period of ten years). Non-married couples and buyers not of lineal descent, by contrast, are only entitled to a tax exemption amount of € 20,000 (relating to the total gifts over a period of ten years). As a result, if the financial contributions differ, the ownership shares should correspond to the funding ratios.
    
2. Besides purchasing as co-owners, multiple persons can also buy real estate using a GbR company (partnership organized under Germany’s Civil Code - BGB). The persons involved in a GbR company are registered in the land registry, but not their respective shares of the company. The GbR company can be designed in more detail using the articles of association: For instance, it can be arranged that the share of ownership of the company is to be different to the financial contribution (so-called quota-movable GbR). This structure prevents the passing of gifts between the persons involved. Another advantage of GbR companies is that the transfer of shares is not subject to land transfer tax unlike the transfer of co-ownership shares.

Conclusion:

A GbR company can be a flexible vehicle for the purchase of real-estate property by multiple persons. However, the acquisition of ownership brings with it an additional regulatory burden. In simple cases, in which the financing relationships are already fixed in advance, it is sufficient to purchase as a co-owner. In more complex cases, however, it is worth considering a purchase using a GbR company. As a result, before purchasing real estate property, check with your legal advisor which purchasing alternative meets your needs.