If you want to buy or sell a plot of land, you have to go to a notary about this contract. According to Section 311b, Paragraph 1, Sentence 1 of the German Civil Code, a contract by which one party undertakes to transfer or acquire ownership of a plot of land requires notarisation. The agreements of the parties, i.e. all agreements of which the sale transaction under the law of obligations is composed according to the will of the parties, are subject to the formal requirement (constant case law of the Federal Supreme Court (BGH), most recently BGH, judgement of 29.01.2021, V ZR 139/19, margin no. 8). In summary, everything must be notarised which, according to the will of the parties, is to become the content of the sale transaction under the law of obligations. Therefore, in the case of uniform legal transactions that consist of parts that require notarisation and parts that do not require notarisation per se (documents illustrating the facts), all parts also require notarisation (BGH as before). However, the question then arises as to when a uniform legal transaction requiring notarisation exists. The Federal Supreme Court has published a judgement on this which is likely to be significant for practice (see also the article by lawyer and notary Dr Klaus J. Müller, Beurkundungsbedürftigkeit verbundener Verträge bei Grundstücksgeschäften, NJW 2021, page 2477 et seqq.)
With reference to its previous case law, the BGH states that the question of whether a uniform legal transaction, and thus a legal transaction requiring notarisation as a whole pursuant to Section 311b (1) sentence 1 BGB, exists, is based on the will of the contracting parties. Thus, it has to be examined whether the parties intended to link the real estate transaction with the legal transaction that does not have to be notarised per se; according to the Federal Supreme Court, this is subject to an assessment by the court of facts, and all circumstances of the respective individual case have to be taken into account (Federal Supreme Court as before).
The BGH has now formulated a requirement that should also be helpful in practice: The standard should be - as Müller puts it - that notarisation only has to take place if the provisions of the property purchase agreement cannot be understood without the referenced provisions of the other agreement, i.e. if one needs the provisions in order to grasp the full regulatory content of the agreement. In other words, if the annexes provide explanations, illustrations or documentation of the facts, it may be advisable to include them in the notarial deed. However, it should not be mandatory. If, however, details and provisions on the essential elements of the contract arise from the annex, which are not apparent in the notarial deed alone and further explain or specify points, notarial certification is mandatory.
In summary, the contracting parties must therefore take care that they do not have to notarise documents unnecessarily, which is ultimately expensive and thus likely to increase transaction costs. Even if notaries like to notarise "everything", it would make sense to point out the demarcation. Naturally, independent lawyers legal advice is recommended in cases of doubt.
Duesseldorf, 27 August 2021
Dr. Dieter Jasper