German Notaries (Notare)

The Role of the German Notary

The German notary (Notar) holds a unique position within the legal profession as an independent holder of a public office (unabhängiger Träger eines öffentlichen Amtes) who exercises delegated state authority in the certification and authentication of legal transactions. Unlike the Rechtsanwalt (attorney), who represents the interests of one party, the notary acts as a neutral and impartial guarantor of legality (neutrale und unparteiische Rechtspflegerin) whose duty is to ensure that legal transactions are properly documented, that the parties understand the legal implications of their acts, and that the transaction is valid and enforceable. The notarial function is constitutionally protected under Article 74(1)(1) GG (notarial system as part of the administration of justice) and is regulated by the Bundesnotarordnung (BNotO), the Beurkundungsgesetz (BeurkG), and the Notarkostenordnung (NotarkostO). The notary’s core competence is the notarial instrument (notarielle Urkunde), a formal document that serves as a title for enforcement and, in the case of the land register, as the basis for registration. The Bundesnotarkammer (BNotK), established in 1961 and headquartered in Berlin, is the federal professional association of notaries, responsible for professional ethics, continuing education, and representing the notarial profession at the EU and international level.

Types of Notaries: Nur-Notar, Anwaltsnotar, and Beamtennotar

Germany operates three distinct models of the notarial profession, reflecting the federal structure and historical differences between the Länder. The full-time notary (Nur-Notar) practises exclusively as a notary and is prohibited from practising as a Rechtsanwalt or engaging in any other commercial activity. The Nur-Notar system prevails in Bavaria, parts of Baden-Württemberg, and the Oberlandesgericht districts of Frankfurt, Hamm, and Düsseldorf in North Rhine-Westphalia. Nur-Notare are appointed by the state ministry of justice and are subject to a numerus clausus limitation: the number of notarial offices in each district is fixed by regulation, and appointment follows a competitive selection procedure based on qualifications and seniority. The lawyer-notary (Anwaltsnotar) combines the practice of law with notarial functions. The Anwaltsnotar system is the most common model in the former West German states, including Hesse, Lower Saxony, Schleswig-Holstein, and parts of North Rhine-Westphalia. Anwaltsnotare must satisfy the same appointment criteria as Nur-Notare but may also offer legal representation services, subject to strict conflict-of-interest rules: an Anwaltsnotar may not act as notary in a matter in which they have previously acted as attorney. The civil-service notary (Beamtennotar) exists only in Baden-Württemberg (excluding the Karlsruhe district), where the notary is a career civil servant within the state judicial administration, remunerated on the civil service salary scale rather than by notarial fees. The Beamtennotar system has been the subject of constitutional challenge and political debate, with the Federal Constitutional Court holding in 2002 that it is compatible with the Basic Law provided the Beamtennotar enjoys sufficient independence in the exercise of notarial functions.

Notarial Functions and Instruments

The central notarial function is the certification of legal transactions through the notarial instrument (notarielle Beurkundung) under §§ 8–35 BeurkG. The notary must read the document aloud to the parties, obtain their approval, and affix their signature and official seal. The notarial instrument is required by law for certain transactions, including: the purchase of land (§ 311b(1) BGB — the contract for the sale of land is void if not authenticated by a notary); the Auflassung (the real agreement for the transfer of ownership of land, § 925 BGB); the Erbvertrag (contract of inheritance, § 2276 BGB); the Ehevertrag (marital property agreement, § 1410 BGB); the Gesellschaftsvertrag of the GmbH (the articles of association of a limited liability company, § 2 GmbHG); and the grant of a land charge (Grundschuldbestellung). The notary’s duties include verifying the identity of the parties, confirming their legal capacity, and explaining the legal consequences of the transaction — the duty of clarification (Belehrungspflicht). The BeurkG requires that the notary ensure that the parties are not disadvantaged by inexperience or lack of information. The notary must also verify the land register (Grundbuch) to ensure the transferor is the registered proprietor and that there are no encumbrances that would impede the transaction. The notarial instrument is a title for enforcement (Vollstreckungstitel) under § 794(1)(5) ZPO: if the debtor submits to immediate enforcement in the notarial instrument, the creditor may enforce directly without first obtaining a court judgment.

The Land Register and Public Faith

The notary plays a central role in the operation of the Grundbuch (land register), acting as the intermediary between the parties and the register. The registration procedure (Eintragungsverfahren) is initiated by the notary, who submits the electronic application for registration to the Grundbuchamt (land registry office) at the Amtsgericht. The reform of the Grundbuchordnung (GBO) in 2008 introduced fully electronic registration, and notaries now file registrations and search the register electronically via the elektronisches Grundbuch (eGB). The notary is responsible for verifying that the application is complete and that all preconditions for registration are satisfied — including proof of identity, the absence of priority notices (Vormerkungen) that would encumber the title, and the existence of the necessary building permits or tax clearance certificates. The notary’s role is particularly important in ensuring the principle of priority (Prioritätsprinzip) is respected: the earliest application to the register takes priority. The notary must therefore file the registration promptly after the notarial instrument is executed. The Grundbuchamt reviews the notary’s application for formal correctness and, if satisfied, registers the new owner or encumbrance. The principle of public faith (öffentlicher Glaube) under § 892 BGB protects any person who acquires a right in reliance on the register, and the notary’s certification is a crucial element in ensuring that the register accurately reflects the legal position.

Professional Regulation

Notaries are subject to strict professional regulation under the BNotO. Appointments are made by the Landesjustizverwaltung (state justice administration) following a competitive selection procedure, and the number of notarial offices is limited by a numerus clausus system that varies by Land. The notary has the right to claim fees under the Notarkostenordnung (NotarkostO), which prescribes fee schedules based on the value of the transaction. Fee agreements are permitted only within narrow limits and only for transactions exceeding €500,000. Notaries are required to maintain professional indemnity insurance with minimum coverage of €500,000 per claim. The Landesjustizverwaltung exercises supervisory authority over notaries and may impose disciplinary measures, including warnings, fines, suspension, and — in serious cases — removal from office. The BGH, sitting as a disciplinary court for notaries (Notargericht), has held that a notary may be removed for gross or repeated neglect of duties, including failure to meet public faith obligations or gross negligence in the preparation of notarial instruments. The Notarkammer (regional notarial chamber) is responsible for professional ethics counselling and continuing legal education. The Bundesnotarkammer has also issued Richtlinien der Bundesnotarkammer (professional guidelines) on the notary’s duties under the anti-money laundering regime (§§ 43–45 BNotO), requiring notaries to verify the identity of their clients and to report suspicious transactions to the Financial Intelligence Unit (FIU).