In Germany the notary holds a public office designed to warrant a neutral and secure procedure of your business. Notarization is required by law for transactions in real estate, the foundation and transfer of shares in companies of limited liability, matrimonial contracts and other businesses.

We, Notary Dr. Klaus Oertel and Notary Dr. Robert Thoma, and our team strive to deliver our services reliably, effectively and transparently. Our intention is to earn your trust.

Language

Both notaries and many of our team are fluent in English; we draft and notarize regularly in the English language. We are able to provide qualified interpreters on request. You may also have an interpreter of your choice, provided he or she is not a close relative or otherwise concerned with the business to be notarized. Please ensure an interpreter of your choice has sufficient command of German and your native language so as to provide an accurate translation. According to the German notarization act translation will be provided in writing if you require. Please let us know in advance if you wish so.

Fees

Notary fees are regulated by law. They depend on the nature and the value of the business concerned. As a guideline you may check out some examples. Please note that most transactions entail not only notary fees but also court fees. Furthermore real estate acquisitions are subject to a tax, that amounts in Nordrhein-Westfalia to 6.5 % of the purchase price. For further information please send us a detailed request.

Representation in the notarization process

If you are unable to participate in the notarization you may have a representative sign the deed on your behalf. Please note that such agent needs to have sufficient authority to represent you or your company. Our office will on request draft such power of attorney or confirmation of authority. If you already have had such power of attorney drafted we kindly ask you to transmit the document prior to notarization in order to have it checked beforehand. Please note that under German law only the provision of an original of the power of attorney warrants the effectiveness of the representation; hence a .pdf or copy needs to be followed up by an original.

Local Notarization for use in Germany, Apostille

Sometimes German law requires a power of attorney be notarized. Such notarization shall be effectuated in accordance with the relevant local procedures. However, for acceptance with the German courts either an apostille or – in some cases – a legalisation has to be attached. Such attachment is designed to warrant the validity of the foreign notarization. Our team will advise you which procedure to follow. You may also check in the country list .

Representation of Companies

The German Registrar (Handelsregister) gives authoritative information about the standing of companies and their representation. If your company is registered in a foreign register our office will check such registration as to whether your company is duly represented. If, however, such registration is not accessible or not comparable to a German registration, further documentation is necessary. For companies from the US or the UK German courts regularly require an explicit certificate by a notary public or a scrivener notary or if – such certificate is unavailable – a like certificate by the company’s secretary. On request our office will sent you a draft for such certificate.

Establishment of a GmbH

To establish a GmbH (limited company) as a subsidiary in Germany it is advisable to proceed as follows:

• Fill in the questionnaire. In particular decide upon the name of the company, the share capital and the managing directors. At least one managing director must be entitled to enter Germany freely for working purposes. Please turn to the German Embassy or the local „Ausländeramt“ of your seat in Germany for information about the relevant visa or permit. Please return the completed questionnaire to my office. If the shareholder itself is a company please also provide a very recent extract from the respective company register or a Secretary’s Certificate.
• Please let us know who will be representing the shareholder during the notarization. If the shareholder cannot personally appear in our office please name a representative and provide a Power of attorney. If you require a draft for a power of attorney, please let us know.
• On the basis of your information our office shall draft the necessary documents and communicate them with you. All preparations being completed an appointment can be fixed to notarize the articles of association and appoint one or more managing directors.
• After notarization of the Articles the company can open a bank account and have the share capital transferred to that account. It is advisable to check beforehand which bank will provide an account and which requirements are to be observed.
• The company will be registered after the share capital has been paid into this account and after each managing director has signed a formal request for registration and has had his signature under such request notarized.

Please do not hesitate to ask for further information. We also recommend that you turn to a local tax counsellor („Steuerberater“) or a specialised law firm to assist you in tax and contract matters.

Liquidation of a GmbH

To wind up a GmbH the following steps are to be taken:

The shareholder passes a resolution to liquidate the company. As the office of the management terminates with the liquidation a liquidator is to be appointed. This may either be the manager or another person. The Liquidator has to

• apply for the liquidation with the commercial register. In order to do so he or she has to see a public notary,
• arrange an announcement in the Federal Gazette publishing that the company goes into liquidation,
• draw up a balance sheet on the date of the beginning of the liquidation.

The company then continues to exist as a “GmbH i.L“ (GmbH in liquidation). the liquidator shall wind up the company’s business, in particular he ought to clear all tax matters. The remaining assets shall be distributed to the shareholders only after one year has passed since the notice of liquidation has been published in the Federal Gazette. In order to delete the company in the commercial register, the liquidator then has to see a public notary again.

For the drafting of the shareholder’s resolution and the requests to the commercial register please let us know:

• who will be the liquidator,
• if this person shall be entitled to act alone and to do business with him-/herself,
• at which date the liquidation shall begin,
• which address shall be used to contact the company from then on.

Procedure of property acquisition

The procedure to acquire property in Germany, be it real estate or be it an apartment, is mostly as follows:

The parties agree on the terms of acquisition. On the basis of their data the notary is ordered to draft the sales contract. The notary will provide such draft prior to the notarization so that both sides may consider the regulations and have them altered or amended. Further changes and details may be added during the notarization. Notarization means in essence that the draft is read to the parties in their presence, altered if necessary, agreed and signed by all of them. Only after notarization the sales deed becomes effective and binding. Prior agreements are not binding, notwithstanding that they are made in writing.

The notary then proceeds the deed with the relevant authorities. In particular a priority notice of conveyance (Vormerkung) is filed in the land register. Such notice secures the buyer‘s claim to the property. Also the notary requests the burdens on the property, i.e. seller‘s mortgages to be deleted. For that purpose the part of the purchase price which is required to relieve the property is designated to the Sellers‘s creditors. After the notary has received all notices required he shall inform the parties that the purchase price is due. The buyer should ensure that by then his financing is in place. In particular he should – if necessary - have applied to the notary for a mortgage to be registered on behalf of the Buyers‘s bank.

Against payment of the purchase price the seller shall hand over the key to the buyer. Provided that the relevant tax has also been paid the notary shall then apply for the transfer of title to the property to be registered. The land register will finally notify the buyer as the new owner.

As for the land acquisition tax the financial authority shall sent the tax assessment to the buyer after the notarization. The tax is based on the purchase price. Other than due payment there is no further declaration or action required by the buyer. It is, however, advisable, to nominate a representative in the EU or preferably in Germany, to ensure that all notifications, which are sent by post, will be received in due course.