Notarisation / Certification
Legal statements do not require a particular form, such that oral or even silent statements can have validity. However, for certain types of statement, often those with a particular legal relevance, the law does prescribe some requirements. In such cases, only the correct form of legal statement is binding.
Through the public certification of a signature, it is officially certified that the signature belongs to the designated signatory – that means either executed by him or personally recognised by him. Certification of signature is required for registration in the land registry office as well as for all registrations in the commercial registry. Once the notary has certified the signature or a copy of the signature, the conformance of the copy with the original is confirmed.
According to German Law, notarisation is the strictest requirement as regards form. To meet this requirement, the statements of the parties will be noted down in a protocol by the notary, read to all parties, approved by them and finally filed with a signed authorisation by the notary. Purchase contracts for apartments or properties and purchase contracts for shares in limited liability companies need a notarial certification.
House purchase/apartment purchase/real estate purchase/ land purchase
Buying real estate, whether this is a plot of land, a house or an apartment, commonly is the first (and often the only) reason to contact a notary. The notary has the responsibility of ascertaining the intentions of the parties to the purchase and is the contact person for all questions related to the contact and its practical execution. Unlike a lawyer, the notary neutrally represents the law, rather than the interests of any particular party.
House sale/apartment sale/real estate sale/land sale
If you are selling real estate, it is advisable to involve a notary at the beginning of the selling process. The notary checks the entry in the land register, in particular encumbrances which have to be considered during the drafting and execution of the purchase contract. If mortgages are to be paid off from the funds from the sale, the notary will provide objective advice related to the safe execution of the purchase and will arrange the relevant written communication with the lending financial institution after certification/registration.
Formation of a company or a limited company
In most cases, the registration of the company in the commercial register is one of the legal pre-requisites to establishing a company. The notary provides advice for the preparation of the registration form, certifies the signatures of the people registering and executes the registration at the commercial register.
The most common form of creating a company in Germany is the establishment of a limited liability company (GmbH). The execution of the establishment process, through the registration of a limited liability company in the commercial register, creates an independent legal person, whose asset relationships are completely separate from those of their shareholders. Different to the partnership under the civil code or a general partnership, the shareholders of a limited liability company are not personally liable for the liabilities of the limited liability company.
Share purchase and transfer agreements / share purchase contract / company purchase (M&A)
The sale and transfer of shares in a limited liability company require notarial certification to come into effect. According to the legal practice of the Federal Court of Justice the requirement for notarisation applies not only to the agreements which lead directly to the sale and assignment of the shares of the company, but also to all other material agreements related to the intentions of the parties to the contract. During the process of purchasing a company or transferring shares in a limited liability company, the notary therefore has to take particular care to determine which agreements between the parties require certification. Alongside the preparation and notarisation of the purchase contract, the notary also has to create an updated list of shareholders. After the transfer of the share has come into effect, the notary forwards it electronically to the commercial register, after which the share purchase is considered legally completed.
Commercial Register / Commercial Register Applications
Commencing with its establishment, the running of a business requires the filing of certain facts and matters for registration with the commercial register, such as the change of the business name, the relocation of the corporate seat or change of address, amendments of the articles of association, measures pursuant to the German Transformation Act (Umwandlungsgesetz), the appointment and the dismissal of managing directors, executive board members and holders of a registered power of attorney (Prokuristen), the accession and leave of partners of a limited partnership (Kommanditgesellschaft - KG) or a general partnership (offene Handelsgesellschaft - oHG) as well as the dissolution (Liquidation) and termination of businesses of trade companies (Handelsgesellschaften) and registered merchants (eingetragener Kaufmann / eingetragene Kauffrau).