The OLG Stuttgart has ruled that amendments to a property transfer agreement also require notarial certification pursuant to § 311b para. 1 sentence 1 BGB when the amending agreement is concluded after conveyance but before the transfer of ownership is registered.
This shall apply at least where the contracting parties declare the conveyance in the original contract and the acquirer applies for the registration of the change of ownership in the land register, but the parties instruct the notary to issue a certified copy or engrossment of the deed containing the conveyance declaration only once payment of the purchase price owed has been evidenced to them.
In doing so, the OLG Stuttgart opposes the established case law of the BGH that such amendments can be made without formality and are not subject to notarization.
Previous BGH case law
In such cases, the BGH had previously assumed that there is no formal requirement and aligned itself in this respect with the case law of the Reichsgericht, as it was unable to identify reasons to depart from this legal development.
In particular, neither could the temporal limit of the notarization requirement be conclusively derived from the predecessor provision § 313 sentence 2 BGB, nor had the amendment of § 313 BGB by the Act of 30 May 1973 provided a reason to change the Senate’s case law.
New perspective of the OLG Stuttgart
The OLG Stuttgart takes a different view of this matter, however, and thereby expressly opposes the established case law of the BGH.
The OLG Stuttgart bases its reasoning, among other things, on the wording of § 311b para. 1 BGB, which contains no indication that amendments to a contract containing an obligation to transfer or acquire a property are exempt from the formal requirement of notarial certification if they are made before entry in the land register but after conveyance.
The systematic structure of § 311b para. 1 BGB also argues against such formal relaxations, since a contract concluded without observing the formal requirement only becomes valid once the conveyance and registration in the land register have taken place.
Furthermore, the 1973 legislative amendment had aimed to protect the acquirer as well as the transferor. However, this protective purpose could not be achieved if subsequent amendments before the transfer of ownership were to be possible without formality. Finally, the evidentiary function as well as the warning and protective function are equally relevant in the period between conveyance and registration of the change of ownership.
The BGH’s argument that the obligation to transfer ownership is fulfilled with the declaration of conveyance also does not hold where the notary has been instructed to issue a copy or engrossment of the deed only once payment of the purchase price has been evidenced to them. In practice, the notary would ultimately not forward the documents to the land registry office in the event of an informal purchase price reduction if the acquirer asserts a notarially uncertified purchase price reduction made after the conveyance but the transferor disputes this subsequent agreement.
Significance for practice
Whether further courts will follow this decision as a precedent and thereby depart from the BGH’s case law remains to be seen, as does whether the BGH will take this decision as an occasion to reconsider its previous case law. In the meantime, amendments in the period between the declaration of conveyance and the registration of the change of ownership should be notarially certified as a precautionary measure.
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Source: OLG Stuttgart, Judgment of 26.09.2017 – 10 U 140/16 (BeckRS 2017, 139536)
KFR Kanzlei für Real Estate – Hamburg & München
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