Impatience has no place in the notary.
Sometimes it is desired that a certification goes as quickly as possible. The reasons are different – the agent puts pressure on them (“otherwise someone else will buy”), the buyer or seller is about to go on vacation and want to know that this is done beforehand, the buyer or seller lives abroad and will only be here for the next few days, the seller needs the money in a timely manner, options or other rights are expiring, a financing commitment is limited, etc. - there are certainly other possible reasons, but these are the ones that have been communicated to me recently.
Since 2002, a 2-week reflection period has been provided.
In 2002, a reflection period anchored in law. It stipulated that the notary should work to ensure that a consumer involved in the purchase is given sufficient opportunity to deal with the subject of the notarization in advance, usually by providing him with the intended text of the legal transaction two weeks before the notarization is made available (see here).
The relatively soft wording of the provision turned out to be insufficient.
The notaries had to ensure that the intended text of the legal transaction was made available to the consumer two weeks before the notarization. However, a provision by the notary himself was not expressly provided for. This could also be done by the entrepreneur, for example the property developer or a sales representative. In such cases, the notary had to trust that the consumer would truthfully answer the question as to whether the intended text of the legal transaction was available to him two weeks before the notarization. It happened that consumers gave an incorrect answer to this question at the instigation of sales employees in order to obtain immediate notarization without observing the deadline. The notary did not have the opportunity to check this information for plausibility or otherwise monitor compliance with the deadline. That offered room for bypasses.
In addition, it was a matter of a so-called standard deadline, which could be deviated from if urgency was required in individual cases, but considered action was nevertheless ensured. Since the notaries were not obliged to record the reasons for deviating from the deadline in writing, it was often difficult to understand afterwards whether the shortfall in the deadline was justified.
From 2011 onwards, reports and complaints accumulated that consumers were deceived when purchasing condominiums and land in particular about their value and, in some cases, about their suitability as a "tax-saving object". The intermediaries in these deals usually claimed that the property would pay for itself through tax benefits and rental income alone. However, this calculation did not always work out: the rental income remained far below the promised level and the tax savings were not sufficient. Any claims for damages against sellers, brokers or rent guarantors often proved to be economically worthless. This was not a locally limited phenomenon, but was practiced throughout Germany. Almost all of these cases had in common that the two-week period for the respective certifications had not been observed.
Tightening from 2013 improved consumer protection.
In 2013, the Federal Council initiated a draft law to "strengthen consumer protection in the notarial certification procedure" (BT pressure. 17/12035). According to the draft justification, there was a particular need to do so in connection with the sale of so-called junk real estate. Both the purchase of real estate and the necessary borrowing were mediated by multi-stakeholders who visited or telephoned prospective buyers and persuaded them to purchase inferior and overpriced real estate as a pension, investment and/or tax-saving model. Then it was time to go to the notary, where due to the above gaps in the law, an effective control was no longer possible.
The changes made are subtle but effective. Since it came into force on October 01.10.2013st, XNUMX, the 2 week period Only when the notary made the draft contract available to all parties involved. If the deadline is not met, the reasons for this should be stated in the contract document (see here). That has several major improvements as a result:
- on the one hand, the notary can now check that the deadline has been met.
- Secondly, it ensures that the notary – and not the seller or his sales company – is perceived as the person responsible for the contract and thus as the point of contact for the consumer. For legal questions about the contract and the certification, the consumer is more likely to turn to the notary, who - unlike the entrepreneur - can provide competent and neutral information on all questions that may arise in the run-up to the certification. The consumer is thus given the opportunity to deal with the contract legally before it is notarized and to make a decision as to whether he wants to conclude a contract with this content; the "consulting isolation" possible through the previous practice is broken.
- Experience has shown that a contract text sent by a notary makes it clearer to consumers that a legal obligation is imminent. Business is taken more seriously.
- The documentation requirement in the event of a deviation from the deadline, in conjunction with the notarial obligation to read out the contract during the certification situation, ensures that the consumer is made aware of the statutory two-week inspection period and is made aware that the deadline has not been met. This also increases the level of protection again and helps to resolve conflicts that arise afterwards on a reliably documented basis.
Strict enforcement of compliance with deadlines in notarial service law.
Anyone who, as a notary, still does not comply with the 2-week period for consumer contracts or does not monitor them himself must have good reasons for this:
- The notary must clarify whether it is a consumer contract if the status of the deed party is not obvious. If doubts remain about the consumer status, the notary must choose the safest way and treat the person involved as a consumer, i.e. also observe the waiting period (BGH III ZR 58/19).
- If the notary carries out the certification despite unjustified falling short of the deadline, he has the burden of demonstrating and proving in a subsequent liability process that the buyer, if the notary had refused the certification, would have had it carried out exactly as it happened after the standard deadline (BGH III ZR 292/14).
- An intentional violation is not ruled out by the fact that the notary believed that the transfer of the contract documents by the sales staff was sufficient to meet the deadline (BGH NotSt (Brfg) 2/21).
When does the 2-week period not apply?
- By law, these strict requirements do not apply if the contract is not a consumer contract.
The Consumer contract is in § 310 para. 3 BGB defined as a “contract between a trader and a consumer”. There is therefore no consumer contract if only companies are involved or – and this is surprising at first glance – if only consumers are involved. Nevertheless, the notary must organize the certification procedure in such a way that the parties involved know what they are doing, understand the legal implications and errors and doubts are avoided as far as possible (Section 17 BeurkG).
when someone consumer or Entrepreneur is sometimes not so easy to determine when two private individuals appear, one or both of whom own several apartments or houses. According to the Rostock Higher Regional Court (1 U 130/16), the decisive criterion for distinguishing private from professional asset management is the scope of the transactions associated with it. If these require a planned business operation, such as the maintenance of an office or an organization, then there is a commercial activity. When it comes to renting or leasing real estate, it is not the size that is decisive, but the scope, complexity and number of the associated processes. Renting out an extensive or very valuable property to a small number of people is fundamentally part of private asset management. On the other hand, the focus on a large number of similar transactions speaks for a professional approach.
In case of doubt, the notary cannot define this with certainty, so that even with private individuals he is more likely to assume that it is a consumer contract, because one side could be treated as an entrepreneur and the other not.
- Within a consumer contract, the 2-week period may be undershot if a factual reason present. This is the case, for example, if the consumer not only has professional business experience, but has already dealt extensively with the draft purchase contract sent to him, which is reflected in the fact that he has sent a draft purchase contract with his desired changes, the notary incorporated these changes, commented with a reply letter and then sent back to the consumer in a new draft (BGH III ZR 506/16, from paragraph 21). But which notary would like to go to court as part of disciplinary proceedings before the Federal Court of Justice to clarify whether there was a sufficient factual reason in his specific individual case to justify an exception? I certainly don't. In practice, this means that there are no exceptions to the 2-week period when in doubt.
- After all, there are exceptions to private property auctions. Here, the notary does not certify a purchase contract immediately after the auction, but rather the bid given by the auctioneer (Civil Code § 156). The auction catalog is published more than two weeks before the respective auction and in it as well as at the beginning of the auction day and possibly also during it, information and instructions are given that try to implement the warning and protective functions required by law. The legislature also explicitly saw a factual reason in private real estate auctions: two weeks before the notarization, nobody could know who will be awarded the contract and whether the legal transaction to be notarized will be a consumer contract (BT pressure. 17/13137 Page 4 under Section IV.2).
Even if it's sometimes annoying that things can't go faster: the purchase of an apartment or house by a consumer is an important transaction that needs to be carefully considered. The fact that the law prescribes a waiting period of 2 weeks serves to protect the parties to the contract - including the seller, by the way, because if the buyer falls into ill-considered haste and repents of the contract and then does not want to process it or does not pay, there will be costs, delays and possibly. Processes that don't make sense for the seller either.
I learned last year – at that time still from a legal perspective – that as a buyer you should not only read the notary’s draft of the purchase contract, but also check it in more detail what is connected with the transaction in this post explained in more detail.