Cologne Regional Court, decision of 26 October 2020 - 5 OH 91/20

Central standards: Section 127 (1) sentence 2 GNotKG; Section 81 (1) sentence 1 FamFG

(Costs of a power of attorney as part of the preparation of a notarised list of estates)

For the reasons:

The application is admissible, in particular pursuant to Section 127 (1) sentence 2 GNotKG and has been filed within the time limit set out in Section 127 (2) sentence 1 GNotKG.

9 The statement of costs in question was to be cancelled insofar as there was a dispute between the parties as to its correctness. The applicant was not entitled to charge a drafting fee in accordance with KV number 24101 (Annex 1 to Section 3 (2) GNotKG) for each of the two powers of attorney that he obtained from the respondent and the executor of the will.

10 It can still be assumed that the powers of attorney fall under the broad definition of the draft (see Korintenberg/Diehn, 21st ed. 2020, GNotKG KV Vorbemerkung 2.4.1, para. 3). The scope of application of KV 24100 et seq. may also be open because the object of the applicant's activity was not notarisation but other notarial proceedings (e.g. draws, affidavits, lists of assets, clause rewritings) (cf. also in this respect Korintenberg/Diehn, loc. cit., para. 22).

11 The fact that there is no statutory provision that excludes the billing of a draft power of attorney in addition to the inclusion of a list of assets (see statement of the district auditor, page 2, penultimate paragraph) does not, of course, mean that the separate billing of the draft is then also - quasi automatically - justified. In the opinion of the Chamber, this is rather excluded in the present case because the draft powers of attorney are services that are already covered by the fee incurred for drawing up the estate register.

12 A 2.0 fee according to KV 23500 of the GNotKG is charged for the preparation of an estate register by the notary. This is a procedural fee that covers the notary's investigative work and the actual drawing up of the deed of registration (BeckOGK/Theilig, BGB, 01.10.2020, Section 2121, marginal no. 33 with further references). The fee is incurred for the entire procedure including the notary's investigations up to the conclusion of the procedure by recording the result of the investigation in a deed (cf. preliminary remark 2.3 para. 1 sentence 1; Korintenberg/Gläser, loc. cit., GNotKG KV 23500 para. 4). The notary's activities covered by the fee according to KV number 23500 include investigative measures such as, for example, the inspection of the testator's home together with the recording of the objects located there and the review of the documents as well as written enquiries at land registries or credit institutions (BeckOK KostR/Neie, 30th ed. 1.6.2020, GNotKG KV 23500 para. 11).

13 If the notary is authorised by the party obliged to provide information to complete or verify the information provided by the latter by obtaining information from third parties, this is done for the purpose of fulfilling his obligations arising from the order to draw up a register of succession, for which - as stated above - he is entitled to the fee according to KV number 23500.

14 In this respect, the constellation and the interests involved are comparable to the situation where the notary, who is also commissioned with the execution of a deed (e.g. purchase agreement), also has the necessary power(s) of attorney granted to him, for which there is undoubtedly no separate fee.

15 The fact that a provision comparable to preliminary remark 2.2 of main section 2, part 2 of the schedule of costs is missing in main section 3 may not be an unintended regulatory gap. However, this circumstance does not compel the conclusion that charging for the preparation of a draft in all „other notarial procedures“, in particular for the preparation of an estate inventory to be assessed here, is not only permissible but also actually justified.

16 Paragraph 2 of preliminary remark 2.2 clarifies that in cases in which a fee is incurred for an activity in accordance with main section 1, no fee is incurred for the preparation of a draft or in accordance with KV 25204 for the same notary. Consequently, an execution or support activity cannot trigger a separate drafting fee. This principle also avoids multiple drafting fees, e.g. in the case of several encumbrances to be cancelled (Korintenberg/Tiedtke, loc. cit., GNotKG KV marginal no. 4).

17 The court made use of the option to order the applicant to pay the costs incurred by the defendant (Section 81 (1) sentence 1 FamFG) because the disputed calculation of fees was clearly incorrect. It was not necessary to decide whether the requirements of § 81 Para. 2 No. 2 FamFG were also fulfilled.