Real estate purchase – The buyer’s obligations
As the legal and financial consequences of a property purchase contract are often very far-reaching, a real estate purchase contract is mandatory for the participation of a notary.
Accordingly, according to § 311b BGB (German Civil Code), only those property purchase agreements legally validated by a notary are legally effective according to the legal protection purpose.
Once an effective purchase agreement has been concluded on a property, that is, a land, a house or a flat, there are numerous obligations for the purchaser of the property.
– Accept the property
– Payment of the purchase price
– Right to rescind the purchase of building plots
– Right to protect the seller against the buyer
Takeover of the property
Within the framework of the real estate purchase agreement, the so-called “termination” is declared. The hiring is simply the explanation of both parties, that is, from buyer and seller, that the property should pass to the property.
The ownership transfer is then carried out by the property conversion of the corresponding land register to the name of the buyer in the land register.
With the transfer of the land in the land register to the name of the acquirer, this has become the property owner.
The risk bearing, that is to say the risks and burdens connected with a thing, is in principle the owner of a property.
In the case of a property purchase agreement, several weeks may pass between the conclusion of the notarial purchase contract and the transfer of the property in the land register.
In accordance with § 446 para. 1 BGB (Civil Code), the conclusion of the purchase agreement leads to the fact that the purchaser of a thing already assumes the risk of the accidental loss of the property by handing over the object, irrespective of whether the change of ownership in the land register has already taken place or not.
If, prior to the transfer of ownership in the land register, the purchaser handed over the real estate to the buyer by handing over the keys, the purchaser is the owner of the property at that time and therefore bears the risk of a possible deterioration or loss of the property.
Owners can be obtained by realizing the real estate over the property, for example the possibility to enter the property with a key.
On the other hand, ownership, as mentioned, will only be transferred to the buyer when the acquirer has been registered as owner in the land register.
Payment of purchase price
By concluding the notarial purchase agreement, the purchaser of a property is first obliged to pay the agreed purchase price to the seller.
The obligation to pay the purchase price also includes payment of the associated land purchase tax and other costs (notarial charges, land register costs, possibly brokerage costs, etc.), which are usually borne by the buyer (§ 448 Paragraph 2 BGB).
In this context, it is particularly important that, after the conclusion of the notarial purchase agreement, there is no longer any possibility for the buyer to withdraw from the signed contract and the commitments entered into.
The notarial purchase contract is binding and obliges the purchaser to take over the sold property, including all debts and tax obligations, as well as to pay the purchase price, irrespective of whether the buyer has actually received the necessary financing for the acquisition.
Therefore, you should consider the conclusion of a real estate purchase agreement well in advance.
The purchaser can, however, withhold a portion of the purchase price, if, for example, if a newly established property has been acquired pursuant to § 320 BGB, if some of the contractually agreed construction work has not yet been carried out or has been deficiently executed.
Payment of the purchase price is generally carried out via the bank financing the acquisition.
The cash flow may also be settled via a trust account of the notary involved in the sale.
This has the advantage that, in this way, it is possible for the seller to ensure that the buyer can already pay the agreed purchase price before the contract is signed and that the buyer can assume on the other hand that the purchase price after the completion of the transfer formalities, such as in particular the cancellation of any existing basic liabilities and mortgages, is safely passed on to the seller.
The maturity of the purchase price is usually made conditional on the notification of the notary about the registration of the notice of cancellation on the forthcoming transfer of ownership and the cancellation of unpaid debts or the transfer of the deferrals from the security holder concerned.
However, it is also possible to agree on the direct payment of the purchase price between the parties, ie without the intermediary of the notary.
Right to rescind the acquisition of land
If a building site is acquired, it is reasonable to link the final binding to the building permit and to grant the buyer a right of rescission under the notarial purchase contract, provided that a required building permit is not yet available by a certain point in time.
However, such a right of rescission exists only if it has also been expressly agreed between the parties in the purchase contract.
Legal protection of the seller against the buyer
It is customary for the purchaser to submit to the immediate enforcement of all his assets, with regard to the obligations which lie with him.
Such a submission will normally be demanded by the buyer to ensure that the purchase price is actually paid to him.
On the basis of an enforceable copy of the purchase contract certificate, the seller can then initiate the execution of a court proceeding directly from the notarial deed without the necessity of initiating a court procedure (§ 794 para. 1 no. 5 ZPO).
If the buyer does not fulfill his obligation to accept the purchased item as well as the payment of the purchase price, the seller is entitled to withdraw from the purchase contract.