BGH, decision of 13 February 2020 - V ZB 3/16

Central standards: § SECTION 925 I 1 BGB

(A conveyance according to § 925 I 1 BGB only with a German notary)

Remark:

In the case of sentence 2 of the provision, the form specified for the conveyance in § 925 para. 1 sentence 1 BGB can only be complied with by a declaration by the parties simultaneously present before a notary appointed in Germany.

Problems and relevance for inheritance law:

Under German law, the agreement to transfer a property must be declared before a notary (conveyance). In the present case, the question of substitution arose as to whether a „notary“ within the meaning of Section 925 I 1 BGB can only be a German notary. The BGH agrees with the prevailing opinion in the literature and affirms this. Consequently, this leads to the subsequent issue of whether such a restriction is permissible as a restriction of the freedom to provide services under EU law. 

The decision plays an indirect role in inheritance law and international inheritance law. Foreign heirs who have inherited a property located in Germany may wish to sell it after the inheritance. If they declare the agreement before a foreign notary, there is no effective disposition in rem.

For the reasons:

I.

1 Party 1 is registered as the sole owner of the aforementioned property located in Germany not far from the Swiss border. In a contract dated 30 May 2014, he undertook to transfer half of the co-ownership share in the aforementioned property to party 2. The parties involved agreed on the transfer of ownership; party 1 approved and party 2 requested that they each be entered in the land register as half of the co-owners. The contract was notarised by a Swiss notary with an office in Basel.

2 The land registry rejected the application for registration of the change of ownership. The Higher Regional Court dismissed the appeal lodged against this by the first party. With the authorised appeal on points of law, he continues to challenge the land registry's decision.

II.

3 The Court of Appeal is of the opinion that a Swiss notary is not a competent authority within the meaning of § 925 para. 1 sentence 2 BGB. Even if this cannot be clearly inferred from the wording and the meaning and purpose of the provision, the legislative history supports this interpretation. It is clear from the legislative history that the legislator assumed that only German notaries had jurisdiction. It could not be assumed that it had intended to transfer the obligation laid down in § 925a BGB to foreign notaries. The frequent lack of familiarity of foreign notaries with the property law institution of conveyance and their remoteness from the place of residence, as well as the need to ensure that the authorisation and tax authorities are informed in good time, justify the exclusive competence of German notaries. The Agreement between the Swiss Confederation on the one hand and the European Community and its Member States on the other on the free movement of persons of 21 June 1999 does not provide otherwise, since the freedom to provide services agreed therein does not apply to the exercise of sovereign powers, which includes the notarisation activities of notaries.

III.

4 The appeal on points of law, which is admissible pursuant to Section 78 Para. 1 GBO and Section 78 Para. 3 GBO in conjunction with Section 71 FamFG. § 71 FamFG is also admissible in all other respects. The land register rightly refused to enter the conveyance.

5 1. the court of appeal correctly assumes § 20 GBO. According to this, the conveyance may only be entered if the necessary agreement of the entitled party and the other party has been declared and is proven to the land registry office in the form of § 29 GBO. The parties involved submitted a public deed drawn up by a notary resident in Basel, Switzerland, to the land registry office, according to § 4 of which they declare the conveyance of half of the co-ownership share in the property by party 1 to party 2. The court of appeal also correctly assumes that this agreement is not effective and therefore does not fulfil the requirements of § 925 BGB.

6 2 The validity of the conveyance is governed not only by substantive law, but also by German substantive law with regard to the form to be observed. The formal validity of contracts is determined in accordance with Art. 9 para. 1 of the Rome Convention, which is applicable in relation to Switzerland and corresponds in content to Art. 11 para. 1 EGBGB and Art. 11 para. 1 of Regulation (EC) No. 593/2008 on the law applicable to contractual obligations (Rome I), alternatively according to the law applicable to the contract or according to the law of the state in which it was concluded (so-called local form). The form would therefore already be complied with if the contract corresponds to the local form. Accordingly, the transaction between the parties underlying the conveyance to be registered here would be valid if and because it fulfils the form applicable to such contracts in Switzerland. However, according to Art. 9 para. 6 of the Rome Convention, which corresponds in substance to Art. 11 para. 5 of the Rome I Regulation and, in this case, also to the somewhat differently worded provision in Art. 11 para. 4 EGBGB, this provision does not apply to contracts which have as their object a right in rem in immovable property. A right in rem in a property within the meaning of these provisions is also a co-ownership share in a property (for the corresponding provision in Art. 43 EGBGB: BGH, judgement of 20 July 2017 - IX ZB 69/16 , WM 2017, 1618 para. 19). The mandatory formal requirements of the state in which the property is located apply to such rights, insofar as they apply under the law of that state regardless of the place of conclusion of the contract and the law applicable to it. Accordingly, not only the substantive law, but also the formal validity of the conveyance is determined by German substantive law, because the object of the conveyance is the (co-)ownership of a property located in Germany.

7 3 However, the authoritative nature of German substantive law does not necessarily mean that a formal requirement for notarial authentication specified therein can only be fulfilled by authentication by a notary appointed in Germany and not by a notary appointed abroad. Depending on the purposes pursued with the form specified in German substantive law, notarisation by a notary appointed abroad may satisfy the formal requirement of German substantive law. This is recognised in company law. Notarial form is prescribed for the assignment of a share in a German GmbH in § 15 Para. 3 GmbHG. This formal requirement under German law can be fulfilled by a notarisation by a notary appointed in Switzerland if it is equivalent to a notarisation by a notary appointed in Germany (see BGH, decisions of 16 February 1981 - II ZB 8/80 , BGHZ 80, 76, 78 and of 17 December 2013 - II ZB 6/13 , BGHZ 199, 270 para. 13 et seq. and judgement of 22 May 1989 - II ZR 211/88 , NJW-RR 1989, 1259, 1261). Equivalence is recognised for notarisation by a notary appointed in Basel (BGH, judgement of 17 December 2013 - II ZB 6/13 , loc. cit. para. 23; for evidence on other Swiss cantons see MüKoBGB/Spellenberg, 7th ed., Art. 11 EGBGB para. 88).

8 4 In contrast to this, the form specified in § 925 Paragraph 1 Sentence 1 BGB for the conveyance in the case of Sentence 2 of the provision can only be complied with by its declaration by the parties simultaneously present before a notary appointed in Germany.

9 a) However, the question is controversial.

10 aa) According to the predominant view, only a notary appointed in Germany is responsible for accepting the declaration of conveyance in accordance with § 925 Paragraph 1 Sentence 2 BGB (see KG, DNotZ 1987, 44, 45 ff. [KG Berlin 27.05.1986 - 1 W 2627/85] ; OLG Cologne, OLGZ 1972, 321, 322; LG Ellwangen, BWNotZ 2000, 45, 46; Palandt/Thorn, BGB, 79th ed., Art. 11 EGBGB para. 10; Schöner/Stöber, Grundbuchrecht, 15th ed, Vierter Teil Rn. 3337; Staudinger/Hertel, BGB [2017], BeurkG Rn. 855; Landesnotarkammer Bayern, DNotZ 1964, 451; Blumenwitz, DNotZ 1968, 712, 736; Döbereiner,ZNotP 2001, 465, 466 ff.; Kanzleiter, DNotZ 2007, 222, 224 et seq.; Kropholler, ZHR 140 [1976], 394, 410 et seq.; Riedel, DNotZ 1955, 521; Rothoeft, FS Esser [1975], 113 et seq, 127; Saage, DNotZ 1953, 584, 587; Schäuble, BWNotZ 2018, 60, 65; left open by OLG Brandenburg, decision of 17 September 2009 - 5 Wx 6/09 , juris para. 15). According to the opposing view, a notary appointed abroad is also a competent body within the meaning of section 925 (1) sentence 2 BGB (see Erman/Hohloch, BGB, 15th ed., Art. 11 EGBGB para. 34; MüKoBGB/Spellenberg, 8th ed., Art. 11 EGBGB para. 81; ibid. in FS Schütze [1999], 887 et seq., 894 et seq, 897; Staudinger/Winkler von Mohrenfels, BGB [2019], Art. 11 EGBGB para. 302; Heinz, RIW 2001, 928, 929 et seq.; Küppers, DNotZ 1973, 645, 677; Mann, NJW 1955, 1177, 1178 and ZHR 138 [1974], 448, 456; Stauch, Die Geltung ausländischer notarieller Urkunden in der Bundesrepublik Deutschland, [1983], 119122).

11 bb) The Federal Court of Justice has so far only dealt with the question in passing. It has only ruled that it is not objectionable under appeal law if the conveyance of land located in Germany recorded by an American notary is not considered to meet the requirements of § 925 BGB (BGH, judgement of 10 June 1968 - III ZR 15/66 , WM 1968, 1170, 1171).

12 b) The Senate decides the question in favour of the prevailing view.

13 aa) However, the wording of § 925 Paragraph 1 Sentence 2 BGB permits the interpretation that the phrase „any notary“ also covers foreign notaries. A comparison with the provision on the notarisation of a submission to enforcement in section 794 (1) no. 5 ZPO, which is intended to be limited to notaries licensed in Germany and expressly stipulates this, could be used to support such an understanding of the provision. There is no explicit provision of this kind in Section 925 BGB . The term „a contract concluded in notarised form“ is broadly understood in Section 15 (3) GmbHG . According to the case law of the Federal Court of Justice, as explained, this form is also satisfied by the notarisation of the assignment of a GmbH share by a foreign notary if it is equivalent - as in the case of a Swiss notary (cf. BGH, decisions of 16 February 1981 - II ZB 8/80 , BGHZ 80, 76, 78 and of 17 December 2013 - II ZB 6/13 , BGHZ 199, 270 para. 13 et seq. and judgement of 22 May 1989 - II ZR 211/88 , NJW-RR 1989, 1259, 1261). On the other hand, even in company law it cannot be assumed without further ado that the tasks assigned to domestic notaries can also be assumed by foreign notaries. For example, § 8 Paragraph 3 Sentence 2 GmbHG expressly regulates that the instruction of the managing directors of a GmbH can also be carried out by a notary appointed abroad. Section 925 para. 1 sentence 2 BGB does not contain such a provision either. The question, which is structurally comparable to the present one, as to whether the notaries appointed in the western federal states could effectively carry out notarisations in the accession territory before the accession came into effect, was clarified by the legislature in a positive sense by means of an express statutory provision in Art. 231 § 7 Para. 1 EGBGB (Bundestag printed paper 12/2480 p. 76 f.).

14 bb) However, the legislative history of the provision clearly shows that § 925 para. 1 sentence 2 BGB only refers to a notary appointed in Germany.

15 (1) With the provision of § 925 BGB, the Reichsjustizamt wanted to ensure that the conveyance could only be declared before the land registry. It was convinced that this was the only way to achieve a considered, abuse-free, speedy and legally secure declaration and implementation of the conveyance (Mugdan, Gesammte Materialien zum Bürgerlichen Gesetzbuch, vol. III p. 174; for details see Pajunk, Die Beurkundung als materielles Formerfordernis der Auflassung [2002], 109-116). The Reichsjustizamt was only partially able to achieve this goal in the parliamentary deliberations on the Civil Code. According to § 925 para. 1 BGB in the original version of the Civil Code of 18 August 1896 (RGBl. p. 195), which was ultimately adopted, the conveyance had to be declared before the land registry. However, according to the former Art. 143 Para. 1 EGBGB, which was adopted at the same time, the provisions of state law remained unaffected, which stipulated for properties located in the territory of the respective state that the agreement of the parties in the case of § 925 BGB could also be declared before a court, a notary, another authority or another official in addition to the land registry.

16 (2) This only addressed notaries appointed by the respective Land; the Länder could also only provide for the acceptance of the declaration of conveyance by „their“ notaries for declarations of conveyance relating to properties in their respective territory. This results indirectly from § 1 of the ordinance on conveyances, fees under state law and security for wards of 11 May 1934 (RGBl. I p. 378). According to the first sentence of this provision, conveyances could also be declared before a notary in all federal states, irrespective of the existence or non-existence of provisions under state law, in addition to before the land registry or another competent authority under state law. According to sentence 2 of the provision, this also applied to properties located outside the official district of the notary or the Land by which he was appointed. It follows from this that only notaries appointed in Germany were concerned.

17 (3) This was not changed by the transfer of this and the accompanying provision in § 2 of the 1934 ordinance to the Civil Code by the Act on the Restoration of Legislative Unity in the Field of Civil Law of 5 March 1953 (BGBl. I p. 33). With the wording „every notary“, the regulations in § 1 of the 1934 ordinance were to be tightened up editorially, but integrated unchanged in content into the Civil Code with today's § 925 para. 1 sentence 2 BGB (BTDrucks. I/3824 P. 17; for further details see Riedel, DNotZ 1955, 521, 522 f.). With the entry into force of the Notarisation Act on 1 January 1970, the legislator adhered to this regulation without restriction. With the exception of the responsibility of the consular officials in accordance with § 925 Para. 1 Sentence 1 BGB in conjunction with § 12 KonsG and the judicial notarisation of deeds, the law removed the responsibility of the consular officials. § 12 KonsG and the jurisdiction of the courts pursuant to § 925 Para. 1 Sentence 3 BGB, all other responsibilities for the acceptance of the conveyance, including the responsibility of the land registry offices, were abolished. At no time did the legislator consider establishing a competence to accept the declaration of conveyance for notaries appointed abroad.

18 c) The competence of notaries appointed abroad to accept the agreement on the transfer of ownership of land located in Germany cannot be justified by way of an analogous application of section 925 para. 1 sentence 2 BGB. Such an interpretation requires a corresponding intention on the part of the legislator (see Senate, judgement of 22 February 2019 - V ZR 225/17 , NJW-RR 2019, 845 para. 35), which is lacking.

19 aa) The „complete separation of the contract in rem from its obligatory basis“ (Mugdan, Gesammte Materialien zum Bürgerlichen Gesetzbuch, vol. III, p. 175) brought about by the introduction of the principle of abstraction did not, in the opinion of the legislature, require any special flanking measures when establishing limited rights in rem. It therefore did not prescribe any form for the contract in rem required for this under § 873 Para. 1 BGB and allowed the owner's authorisation to be publicly notarised in accordance with §§ 19, 29 GBO to suffice as the basis for entry in the land register. In contrast, the situation was judged differently in the case of the contract in rem for the transfer of ownership of land. From the legislator's point of view, it had a much greater economic and legal significance as the basis for limited rights in rem. It feared that, without special precautions, transfers of ownership could be carried out carelessly and without cause, but also without knowledge of interim dispositions of the property, and that the accuracy of the land register could be jeopardised by the separate declaration of application and acceptance of the application, which is possible in itself, and delayed transmission of the declarations to the land registry, but also by technically inadequate declarations (Mugdan, Gesammte Materialien zum Bürgerlichen Gesetzbuch, vol. III, p. 174 f.).

20 bb) From the legislator's point of view, these risks could best be countered by the fact that the conveyance is to be declared before the land registry in the simultaneous presence of the parties involved. The simultaneous presence means that the agreement is reached immediately. The need to declare the conveyance jointly „in front of an open book“ and to the land registrar responsible for the entry would make the parties involved aware of the significance of their declaration because they would have to expect it to be entered in the land register immediately. At the same time, they would also have the opportunity to determine whether the property had been disposed of in the meantime by inspecting the open book. Transmission problems would not arise because the conveyance would be declared to the office keeping the land register (Mugdan, Gesammte Materialien zum Bürgerlichen Gesetzbuch, Vol. III, p. 175).

21 d) A different interpretation of § 925 Paragraph 1 Sentence 2 BGB does not follow from the purpose of the provision. This can only be achieved with a sovereign appointment of notaries in Germany.

22 aa) However, the legislature abandoned the principle of the declaration of conveyance before an open book, albeit only hesitantly and only completely with the entry into force of the Beurkundungsgesetz on 1 January 1970. The gradual transfer of responsibility for the acceptance of the declaration of conveyance in Germany to the notaries (for details see Riedel, DNotZ 1955, 521, 522 f.) and the establishment of responsibility for the acceptance of the declaration of conveyance abroad by the consular officials also provided for precautions by means of which the requirement for the declaration of conveyance to be submitted by parties who are present at the same time was met.) and the establishment of responsibility for the receipt of the declaration of conveyance abroad by the consular officials was also provided with precautions by which the purposes pursued with the requirement of the declaration of conveyance to be submitted by parties present at the same time are largely ensured.

23 bb) Since the notaries are not the accounting office, the declaration of conveyance can no longer be made „before an open book“. The legislator therefore realises the protective purposes associated with this form of declaration of conveyance in another way.

24 (1) The notaries, but also the consular officials, are instructed by today's § 925a BGB, which goes back to § 2 of the ordinance on conveyances, state law fees and security for wards of 11 May 1934 (RGBl. I p. 178), to accept the declaration of conveyance only if the necessary deed concerning the underlying transaction under the law of obligations is presented or drawn up at the same time. They are to check the notarisation of the underlying transaction and its conformity with the disposal transaction as well as the material correctness of the conveyance declarations (see BeckOGK/J. Weber, BGB [1.2.2020], Section 925a marginal no. 2). They should also inspect the land register in accordance with section 21 BeurkG in order to check the registrability of the declarations. The notary's duty to carry out a preliminary examination and thus to guarantee the accuracy and reliability of the land register has now also been secured under procedural law with section 15 (3) sentence 1 GBO.

25 (2) Pursuant to § 17 BeurkG, the notary must inform the parties of the content and scope of the intended conveyance. Pursuant to § 925 Paragraph 1 BGB, the conveyance is not subject to the form of notarisation; rather, it is sufficient if it is declared before a notary in the simultaneous presence of the parties. However, compliance with this form can only be proven to the land register office in accordance with § 29 GBO by means of a notarial deed, for the creation of which the procedure in accordance with §§ 6 ff. BeurkG must be complied with, which includes instructing the parties in accordance with § 17 BeurkG. The notary must comply with this procedure, even if procedural errors he makes in the process do not lead to the invalidity of the authentication (see Senate, judgements of 5 December 1956 - V ZR 61/56 , BGHZ 22, 312, 316 f. , of 3 December 1958 - V ZR 28/57 , BGHZ 29, 6, 9 f. and of 25 October 1991 - V ZR 196/90 , NJW 1992, 1101, 1102; BGH, judgement of 7 July 1983 - IX ZR 69/82 , NJW 1983, 2933). Moreover, the parties are only bound by the declaration of conveyance before the notary prior to its entry in the land register in accordance with § 873 Para. 2 BGB, insofar as this is of interest here, if it has been notarised. This is intended to ensure „that the rights to land are not disposed of hastily and carelessly“ (see Senate, judgement of 14 September 2018 - V ZR 213/17 , MDR 2018, 1308 para. 13).

26 (3) The professional expertise of the notaries appointed in Germany and the professional requirements for the consular officials authorised to accept conveyances (cf. § 19 Paragraphs 1 and 3 KonsG) ensure that the conveyances not only comply with the substantive legal requirements, for example in § 925 Paragraph 2 BGB, but also with the technical requirements of the land register. In the case of notaries appointed in Germany and consular officials authorised to accept conveyances, it can also be assumed that they ensure the consumer protection objectives associated with the requirements for conveyance in § 925 Para. 1 Sentence 1 BGB, namely the protection of the parties involved from ill-considered conveyances, for example because they are not owed at all, and the provision of information about interim dispositions by inspecting the land register.

27 (4) Compliance with these requirements can be enforced by domestic authorities, namely by the offices of the judicial administration responsible for the supervision of notaries and the official supervision of the Foreign Office. This possibility was a basic prerequisite for the transfer of responsibility for the acceptance of the conveyance by notaries and consular officials. It does not exist for notaries appointed abroad.

28 e) The extension of § 925 Paragraph 1 Sentence 2 BGB to foreign notaries is also neither necessary nor required from the point of view of an interpretation of the provision in conformity with EU law.

29 aa) There is, however, much to suggest that the competence specified in § 925 para. 1 sentence 2 BGB only for notaries appointed in Austria to accept the conveyance constitutes a restriction of the free movement of services guaranteed by Article 5 of the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other part, on the free movement of persons of 4 April 2002 (OJ EC No. L 114 p. 6 - hereinafter: Agreement on the free movement of persons). The Court of Justice of the European Union considered the provision in Section 53 (1) of the Austrian Land Register Act, according to which an entry in the land register for an intended sale can only be authorised if the registration of the right to be registered would be permissible according to the status of the land register and if the signature of such applications is certified by a court or notary, to be a restriction on the freedom to provide services guaranteed by Article 56 TFEU, which confers similar rights on service providers. This regulation prevents Austrian lawyers and lawyers based in other Member States of the European Union from notarising applications for annotations and thus impairs the freedom to provide services (ECJ, judgment of 9 March 2017 Piringer, Case C-342/15,ECLI:EU:C:2017:196, paras. 50-52). In the present case, it is not a question of whether the conveyance could also be declared before a lawyer, but rather that it cannot be declared before a notary appointed abroad. However, contrary to the opinion of the Court of Appeal, this makes no difference under EU law. According to the case law of the Court of Justice of the European Union, the notarisation activity of notaries is not the exercise of official authority within the meaning of the exception under Article 51(1) TFEU (see ECJ, judgments of 24 May 2011, Commission v Austria, Case C-53/08, ECLI:EU:C:2011:338, para. 91 et seq. and of 9 March 2017, Piringer, Case C-342/15, ECLI:EU:C:2017:196, para. 54), but a service under EU law.

30 bb) A possible restriction of the freedom to provide services of notaries domiciled in Switzerland would in any case be justified under Art. 5 para. 1 of Annex I of the Agreement on the Free Movement of Persons.

31 (1) Accordingly, the rights granted by the Agreement on the Free Movement of Persons may only be restricted by measures that are justified on grounds of public policy, public security or public health. For the substantively corresponding restriction on the free movement of services under Article 56 TFEU, the Court of Justice of the European Union has ruled that a non-discriminatory restriction can be applied if it is justified by overriding reasons in the public interest (ECJ, judgments of 28 January 2016, Laezza, Case C-375/14,ECLI:EU:C:2016:60, para. 31 and of 9 March 2017, Piringer, C-342/15,ECLI:EU:C:2017:196, para. 53), is suitable for securing the attainment of the objective pursued and does not go beyond what is necessary to attain it (cf. ECJ, judgments of 17 March 2011, Peñarroja, C-372/09 and C-373/09,ECLI:EU:C:2011:156, para. 54 and of 9 March 2017, Piringer, C-342/15,ECLI:EU:C:2017:196, para. 53).

32 (2) The Court of Justice of the European Union has affirmed these conditions with regard to the freedom to provide services guaranteed by Article 56 TFEU for the certification requirement for notaries pursuant to § 53(3) of the Austrian Land Register Act (ECJ, judgment of 9 March 2017, Piringer, C-342/15,ECLI:EU:C:2017:196, para. 55 et seq.). The situation is no different in the case of an impairment of the freedom to provide services guaranteed to Swiss service providers in Germany under Article 5 of the Agreement on the Free Movement of Persons by the restriction of the competence to accept conveyances to notaries appointed in Germany in Section 925 (1) sentence 2 BGB. This restriction is in accordance with Art. 5 para. 1 of Annex I of the Agreement on the Free Movement of Persons.

33 (a) In certain Member States that recognise the Latin notary's office, including Germany, the land register is of decisive importance, inter alia, in the context of land transactions. Just as under Austrian law, which was the subject of the Piringer decision, a disposal of a plot of land and, in particular, the transfer of ownership of a plot of land pursuant to § 873 Paragraph 1 BGB requires, in addition to the agreement of the parties on the disposal, entry in the land register, so that the disposal only becomes effective upon entry. The proper maintenance of the land register is also an essential part of the precautionary administration of justice in Germany. It is intended to ensure the proper application of the law and the legal certainty of dispositions between private individuals and is therefore one of the tasks and responsibilities of the state. The obligation of those involved in the conveyance of a property located in Germany to declare this conveyance either before a German consular official abroad or before a notary appointed in Germany is intended to ensure that the necessary agreement on the transfer of ownership actually takes place, is declared technically correctly and in accordance with the contents of the land register and is forwarded to the land registry for entry without delay. The notary should counteract the threat to the interests of the parties involved resulting from the ill-considered and incorrect conveyance of a property, but above all the threat to the accuracy of the land register, by giving appropriate instructions to the parties involved, but if necessary also by refusing to accept the declaration of conveyance.

34 (b) This protection and security concept of the legislator presupposes in-depth knowledge of German property law, in particular also of the principle of abstraction and its mode of operation, and further presupposes that the competent state authorities will take action in the event of errors (cf. in this respect, for example, the pr. General Decree of 23 May 1921, pr. JMBl. 1921, 317) can intervene on the notaries. These conditions do not exist in the case of notaries appointed abroad because they are not subject to the obligations of notaries appointed in Germany (KG, DNotZ 1987, 44, 47 [KG Berlin 27.05.1986 - 1 W 2627/85] ), in particular the obligations under § 925a BGB, and because they are not subject to notarial or official supervision by the German state authorities, which would therefore be unable to ensure compliance with the regulations to guarantee the accuracy of the land register.

35 This restriction on the freedom to provide services is also proportionate. Pursuant to Art. 11 of Regulation (EU) No. 593/2008 (Rome I) or, in relation to Switzerland, Art. 9 EÜV, the parties involved have the option of effectively concluding a contract outside of Germany that obliges them to transfer ownership of a property located in Germany in compliance with the formal requirements applicable at the place of conclusion. You can declare the conveyance before the German consular official responsible for the place of conclusion or authorise representatives to make the declaration on your behalf before a notary resident in Germany.