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Notarial Recording

For a large number of important legal transactions, the form of notarial recording (notarielle Beurkundung) is prescribed by law. Failure to notarially record such legal transactions results in their voidness. Declarations of intent of the parties to legal transactions requiring notarial recording are only effective if they have been made before a notary who has taken down a record of the notarization.

By law, notarisation is required primarily in real estate law (e.g. real property sale and purchase agreements, condominium property purchase agreements, property developer contracts), in the field of corporate law (e.g. formation, amendment of articles of association, capital increase, sale and assignment of shares in the case of a German limited liability company (GmbH)), in family law (e.g. marriage contracts, divorce agreements), in inheritance law (e.g. public wills, contracts of inheritance) and for promises of donations. In some cases, the notary is responsible for taking affidavits (e.g. in the case of applications for certificates of inheritance), about which he also creates a notarial record.

As a holder of a public office, the notary is also authorised to create enforceable legal documents in the form of enforceable deeds. From a notarial deed (or rather its enforceable copy), the creditor may pursue immediate enforcement against the debtor if the deed has been recorded regarding a specific claim that can be provided for by a settlement (e.g. claims for payment, return, handover, delivery, construction work, omissions), is not directed at obtaining a declaration of intent, does not concern the existence of a tenancy relationship for residential spaces (therefore, claims for eviction and return against tenants of residential spaces are excluded) and the debtor has subjected himself to immediate compulsory enforcement of this claim.

The notarisation procedure is governed by the German Notarisation Act (Beurkundungsgesetz - BeurkG). The parties involved appear before the notary, who first obtains certainty about the identity of those appearing and, if necessary, about their legal capacity and - in the case of transactions by representatives - power of representation (e.g. power of attorney). When notarising declarations of intent (e.g. for the conclusion of real property sale and purchase agreements), the notary must create a record, which must contain the name of the notary and the parties involved as well as the declarations of the parties involved and must also indicate the place and date of the notarization. The notarial recording shall be read out to the participants in the presence of the notary (usually by the notary himself) and subsequently approved by them and signed by them and the notary in person. The notary has to clarify the intentions of the parties involved and the underlying facts, instruct the parties involved about the legal implications of the transaction and include their declarations clearly and unambiguously in the notarial recording.

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