Land purchase agreement

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The land purchase contract is a purchase contract that includes the acquisition of land , land rights or heritable building rights .

General

Due to the special economic importance and the more complicated legal issues and legal relationships , various buyer protection mechanisms are available for real estate by law and case law , so that a real estate purchase contract can not be concluded in a form-free manner like most everyday purchase contracts. Rather, the involvement of a notary is mandatory regardless of whether the contracting parties are experienced merchants or consumers .

For example, the notary checks in advance before concluding the property purchase agreement

This information is used by the notary as a basis for drawing up the property purchase agreement, because the notary must address these factual or legal relationships.

shape

The strictest form prescribed by law is provided for land purchase contracts , namely certification by a notary ( Section 311b (1) BGB in conjunction with Section 128 BGB). The law attaches an essential legal consequence to this notarization requirement . If the required certification is lacking, the concluded property purchase contract is void due to a lack of form ( Section 125 BGB), so it does not have any legal effects from the start. There is only one exception to this rule, in which the legislature expressly provides for a cure by means of enforcement . The non-authenticated land purchase contract is to § 311b effectively para. 1 sentence 2 BGB if the conveyance and registration are done in the land register. As a rule, this cannot be assumed because the land registry also checks the form of conveyance ( Section 20 GBO ).

Certification means that the buyer and seller in a participating hearing before the notary her on to authenticate will explain ( § 8 BeurkG ), who after instruction by the notary in a writing received, read, approved and personally by the parties and the notary signed is ( § 9 , § 13 BeurkG). As part of the instruction, the notary, as a legally qualified person, has to research the will and the goals of the parties involved, to inform them comprehensively about legal dangers and the legal consequences of the notarization ( advisory function ) and to formulate the regulations clearly and conclusively ( evidence function ). The notary has to show the parties involved ways in which legal and other risks can be avoided. The notarial deed for the purchase of the property is a so-called public deed , it provides full evidence of the notarized property purchase contract. The original document ( original ) remains with the notary, who records it in his deed . For legal transactions he issues enforceable copies or certified copies to the parties involved .

content

Notarial land purchase contracts are based on standardized model contracts drawn up by the chambers of notaries . Legally, they represent a binding transaction like the normal sales contract ( Section 433 Paragraphs 1 and 2 BGB). According to this, the seller of a property undertakes to hand over the property to the buyer and to procure ownership of it . The seller must provide the buyer with the property free of material and legal defects. The buyer is obliged to pay the seller the agreed purchase price and to accept the purchased property. The entire sales contract law also applies to land purchase agreements .

  • Buyers and sellers must undergo a notarial verification of legitimacy and present an identity card or passport ; in the case of companies , proof of representation must be provided on the basis of a certified extract from the commercial register . If there are several buyers, the proportion of the intended acquisition of property must be specified ( Section 47 GBO ).
  • The property as the subject of the contract is defined in the contract by the property designation ("entered in the land register of the district court somewhere sheet ..."), as it emerges from the inscription in the land register . The property - and thus also the object of purchase - includes its components ( Section 96 BGB), namely essential components such as buildings and accessories ( Section 311c BGB). Also active notices are rights of the property owner and as such are when buying land to the transferee.
  • The size of the property is considered a property that represents part of the nature of the object of purchase. A property is free of material defects if it has the agreed quality ( § 434 Paragraph 1 BGB). The quality is only a material defect if it affects the intended use of the property. The land area taken over from the inventory of the land register in the land purchase contract is generally not considered to be an assurance of a property. Rather, an assurance assumes that the seller assumes the guarantee for the existence of a property in a contractually binding manner and thus shows the willingness to take responsibility for all consequences of the lack of this property. This results in an interpretation of the contract taking into account the principles developed by the case law on the sale of partial areas of land still to be measured by property developers. However, if a minimum area is agreed in the sales contract, liability for material defects is possible ( Section 433 (1) BGB, Section 434 (1) BGB). According to this, in the case of differences between the specified (numbered) and the (delimited) area size corresponding to the specified delimitation, the numbering is irrelevant and only the delimitation is decisive. The clause that the seller assumes no liability for the size of the property prevents the indication of the area measure from being viewed as an assurance of a property. According to this, the seller is not liable for a certain area of ​​the property or the premises, nor for the condition of the floor or the current structural condition of the building or the structural systems or facilities. In order to identify a property, it is sufficient to refer to the land register sheet when purchasing a property in accordance with Section 28 GBO. In Switzerland , Art. 219 OR regulates that the seller of a property usually has to replace the buyer if the property does not have the dimensions specified in the purchase contract.
  • Approvals : The notary endeavors to obtain the approvals stipulated in the purchase contract ( e.g. waiver of the right of first refusal as a waiver of the municipalities' statutory right of first refusal according to § 24 BauGB , because of redevelopment area according to § 144 para. 2 No. 1 BauGB).
  • For encumbrances on the property not accepted by the buyer , the notary must have enforceable deletion permits . A debit power of attorney authorizes the notary to enter a mortgage right for the lender of the buyer for the purpose of financing the purchase price .
  • Actual maturity requirements of the property purchase contract are, for example, the granting of the building permit , evidence of the evacuation of the property by the seller (excerpt from tenants), evidence of entry of the notice of conveyance or the handing over of a contract performance guarantee by the seller.
  • Payment of the purchase price : The payment of the purchase price to a notary's escrow account of the notarial notary is legally secure if the contracting parties have a legitimate interest in security ( Section 54a (2) No. 1 BeurkG). Due to his obligation to pay the purchase price, the buyer can submit to immediate enforcement in his entire property ( Section 794 (1) No. 5 ZPO ). This turns the land purchase agreement into an enforcement order in favor of the seller.
  • Liability : The seller is contractually liable for all material and legal defects . The property is free from material defects if it has the contractually agreed quality at the time of transfer of ownership ( § 434 BGB). A legal deficiency exists if third parties can assert rights against the buyer with regard to the property ( Section 435 BGB). This applies in particular if a right is entered in the land register even though it does not exist (Section 435 sentence 2 BGB). Public law interventions, bindings or restrictions are defects of title. However, if the buyer knows the defects, the seller is not liable ( § 442 BGB). Contractual limitations of liability are possible (“The property is taken over as it stands and lies”), but only apply if the seller does not fraudulently conceal a defect ( Section 444 of the German Civil Code). Section 436 (2) BGB provides for a special regulation for public charges . According to this provision, the seller is not liable for the freedom of the property from public charges and public charges that are not registrable and therefore do not appear in the land register.
  • The development contribution and other resident contributions are to be borne by the seller of a property in accordance with Section 436 (1) of the German Civil Code (BGB) for the construction work that has commenced by the day the contract is concluded, regardless of the time at which the contribution owed.

This list gives an impression of the scope of a property purchase contract, which is one of the most extensive contracts.

Real estate purchase contracts in everyday life

The statutory form requirement applies to every contract that already creates a binding obligation to transfer property ownership or rights equivalent to real property ( preliminary contract , right of first refusal , granting of a purchase right or contribution of a property as a contribution in kind to a company ). Land purchase agreements are concluded for both undeveloped and developed land. The notary adapts the contract to the individual situation by taking into account the different legal provisions that should apply in individual cases, for example whether it is a heritable building right or a condominium . If the land purchase contract is part of an extensive bundle of contracts (e.g. as part of a builder model ), the part relating to the land purchase must be negotiated by a notary. A land purchase contract can also be combined with a construction supervision contract . However, if the property purchase contract is ineffective, the construction supervision contract is also ineffective ( Section 139 BGB).

Execution

After the notarial certification, the property purchase contract can be used by the notary for the purpose of real execution.

The land purchase contract is merely one of debt Treaty ( commitment business ), which according to the principle of separation by a rem available business fulfilled is. Since the buyer and seller have already agreed in rem in the contract in accordance with Section 925 (1) BGB ( conveyance ), the notary now applies to the land registry for a transfer of ownership in favor of the buyer, in practice often secured by prior registration a reservation . The application of the buyer and the corresponding approval of the seller according to § § 13 , § 19 GBO are usually also part of the property purchase contract. If the entry as owner has been made, the seller has given the buyer real ownership of the property ( Section 433 (1) sentence 1 BGB). The notary sends copies of the property purchase contract to the expert committee (for the comparison value procedure ) and the tax office (for the real estate transfer tax ).

International

A land purchase agreement that is subject to German law can also be legally concluded abroad in two cases . Either it meets the foreign formal requirements or the formal requirements of German law are met ( Art. 11 Para. 1 EGBGB ). In Switzerland , the land purchase agreement is also subject to notarization ( Art. 216 OR , Art. 657 Paragraph 1 ZGB). In addition to the conclusion of the notarized purchase contract, entry in the land register is required for the acquisition of the property ( Art. 656 Paragraph 1 ZGB ). The seller is obliged to pay damages if the property is not of the size specified in the contract ( Art. 219 OR). In Austria, on the other hand, even the orally concluded property purchase contract is binding, but the transfer of ownership needs to be "recorded" by means of a certified document ( § 432 ABGB ), the content of which is prescribed in § 433 ABGB. An entry in the land register (“incorporation” or “intabulation”) is only possible with a certified “declaration of return”. This is the written declaration of the seller that he agrees to the entry in the land register. From § 431 ABGB it follows that the purchase transaction is entered in the designated public books (land register).

In England and Wales (subject land sale contracts English country contract ) the Law of Property Act 1925 and the Land Registry Act and require the written form . The real estate property ( English freehold estate ), condominium ( English common household ) or leasehold ( English leasehold estate ) can be transferred by the seller to a buyer ( English conveyancing ). Since the English Notary not prove the legal qualifications of a German notary must - because it is limited to signature legalization - Lawyers are ( English licensed conveyancer ) consulted, particularly in common law , the principle is that the buyers themselves all legal and factual flaws ( English defects ) ( Caveat emptor ; "the buyer has to be careful"). A distinction must be made between the purchase of registered and non-registered properties. For registered land purchase comes with registration of the buyer in unregistered by meeting ( English completion ) with the delivery of the deed ( english purchase deed ) above. The buyer receives a confirmation of this ( English country certificate ). Unless otherwise agreed, the buyer acquires this also Accessories ( English fixtures ).

In the US , the lack of a land register has significant ramifications for property purchases. There are land registers in the individual districts, the documentation of which, however, cannot provide any reliable information about whether the seller is actually entitled to dispose of the property. The entry of a property purchase ( English real estate sales agreement ) in the land register is not legally required. The purchase contract regulates that the seller transfers ownership of the property in question in the future by handing over a deed of transfer ( English warranty deed ) to the buyer, while the latter promises to pay a certain purchase price on certain terms of payment. It must be in writing, but does not yet result in a transfer of ownership. The transfer of ownership ( English closing ) found months later in front of a "escrow agent" or "settlement agent" instead.

See also

Individual evidence

  1. ^ BGH WM 1998, 783
  2. ^ RG, judgment of October 25, 1902, Az .: V 233/02; DJZ 1903, 31
  3. ^ BGH WM 1984, 941
  4. ^ BGH, judgment of June 13, 1980, Az .: V ZR 119/79
  5. ↑ Karl-Werner Schulte / Jürgen Kühling / Wolfgang Servatius / Frank Stellmann (eds.), Real Estate Economics II: Legal Foundations , 2013, p. 168 ff.
  6. ↑ BGH NJW 1983, 275
  7. ↑ Thomas Zerres, Bürgerliches Recht , 2005, p. 171
  8. ↑ Alpmann / Brockhaus, Fachlexikon Recht , 2005, p. 657
  9. ↑ BGH NJW 1976, 1931
  10. ↑ Gotthold Balensiefen / Christian Bönker / Norbert Geiger / Wolfgang Schaller (eds.), Legal Handbook for Real Estate Practice , 2011, p. 166
  11. ↑ Susanne Frank / Thomas Wachter (eds.), Real Estate Law in Europe , 2015, p. 210