Real-estate law – review takes place before notarisation, not afterwards.

Real-estate mandates fall into three phases with very different room for action. At the acquisition stage it is at its greatest: the draft purchase contract can be negotiated, the land register and the register of public building encumbrances can be inspected, and suspected contaminated-site liabilities and development charges can be clarified. This is precisely where people most often try to save money – on the reasoning that the notary will review it anyway. The notary notarises and instructs; the notary does not, however, advise one-sidedly in your interests and does not assess whether the price matches the condition.

After notarisation the room for manoeuvre narrows dramatically. Almost every purchase contract for an existing property excludes liability for material defects. If any liability remains, it is as a rule only for fraudulent concealment – and the purchaser bears the burden of proof. In practice it is then not the legal position that decides, but the documentation: what was asked at the viewing, what was answered, which documents were handed over. Anyone who records these points in writing in advance later has a foundation; anyone who relies on conversations does not.

The existing-holdings phase concerns tenancies and owners’ associations. In tenancy law the risk regularly lies in form: notices of termination without sufficient grounds, rent increases without effective supporting material, service-charge statements after the deadline has expired. In condominium law it is defects in resolutions and the question of what the community and what the individual owner must bear – points of dispute that persist for years if they are not clarified early.

The fourth area is acquisition abroad. Here it regularly diverges which law applies to the contract and which law governs transfer and registration: the latter is determined by the location of the property. Procedures, the effect of registration and incidental acquisition costs differ considerably, and in some states registration affords weaker protection than the German land register. We clarify these points before a deposit is paid, because afterwards little negotiating leverage remains.