A simple trick to avoid having to travel to Germany for the sale or purchase of a German property
Under German conveyancing rules, the seller and the buyer need to be present before a German notary public, who – in contrast to Common Law jurisdictions – is a highly qualified lawyer, a de facto court official. Said German notary records the sale by way of a sale deed (Übertragungsurkunde), ensures that the best interests of both parties are protected (by explaining the deed and warning each party about risks) and then communicates with the German land registry (Grundbuchamt) to have the buyer entered as the new owner / proprietor (Eigentümer).
In other words: Under German law there is really no need for buyer and seller to hire their own property / conveyancing lawyers, because the notary – who must be absolutely neutral – does all the work anyway. The German conveyancing notary is in charge of exchange of contract (Beurkundung des Verkaufs) as well as all the steps of completion. Sad for German lawyers but cost efficient for buyers and sellers of German property.
Do I really have to travel to Germany for the property sale?
While it is the “proper” (and quickest) way to transfer German property by having both parties to the contract actually present in person at the same time at the German notary’s office, there is a simple and effective way to save time, travel costs and the need for an interpreter or translator, if one party lives outside Germany and prefers not to travel to Germany for the notary appointment.
That is the so-called “Vertretung und Nachgenehmigung” approach, which means that one party (or even both parties) to the property sale deed send a proxy-agent (Stellvertreter) to the notary. This proxy-agent signs the deed on behalf of the party who lives outside of Germany.
“Nachgenehmigung” means “to give consent after the fact”
In order for that signature by the proxy-agent to become legally binding, the principal, i.e. the actual party to the deed, will have to give formal consent to having been duly represented.
For this, the German notary will provide a one-page document which basically just states that the principal is aware of the content of the sale deed no. …, which was signed by the proxy agent (and the other party) on the …, and that the principal hereby gives consent to having been represented by the proxy-agent.
The principal then needs to sign this document in the presence of an English (US, Australian etc.) notary who checks the principal’s ID and then certifies that the principal has personally signed it. The English notary will probably want to know what it is that the principal is signing (because the consent form provided by the German notary will obviously be in German), so someone will have to provide a translation into English, but this is usually not a problem because the consent document will most likely be fairly short (half a page).
If the parties wish to speed up matters, the party outside of Germany may want to search and chose a notary in their area early on and discuss the matter with him/her to have this non-German notary “on stand-by”. Once the consent letter has been signed and certified by the notary, the original needs to be sent back to the German notary who recorded the sale, ideally by courier to save time. Once the German notary receives the original consent letter, he/she will proceed with the completion procedure, i.e. instruct the buyer to pay and instruct the German land registry to enter to enter the buyer as the new owner.
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The German law firm Graf Legal specialises in UK-German legal matters since 2003. We are proven experts in German conveyancing for English speaking clients and together with our UK and USA partner firms, we have advised and represented hundreds of British and American clients who wanted to purchase or sell German property.
More information on buying or selling property in Germany, the German Land Registry and conveyancing process in Germany is available in these posts. For British clients who wish to buy a house or flat in Germany, these posts may be especially relevant:
Useful facts on Certifications and Notarisations under German law are available on the German government website German Missions Abroad (here).
The law firm Graf & Partners and its German-English litigation department GP Litigation was established in 2003 and has many years of experience with British-German and US-German legal matters. If you need help with German law, contact German solicitor Bernhard Schmeilzl, LL.M. (Leicester) at +49 941 463 7070.