Notarial Purchase Agreement - No Guarantee for Building Land

Dear forum,

we have found a great plot of land at a reasonable price.

The notary has drafted a purchase contract. The seller is not satisfied with the draft and especially does not want the guarantee that the land may be built on to be included in the contract.

After consulting with the notary, we were given the impression that such a guarantee is already standard.

We now do not know whether we as buyers can in good conscience waive this guarantee.

Independent of the seller, we have done research and contacted the municipality. The plot is a building gap and is part of a development plan, which is also publicly accessible.

We do not suspect any fraud or negative intentions on the part of the seller. Rather, it seems that the seller is overwhelmed by the notary contract. This is also evident in other areas.

I would be happy to receive advice on how you would handle the situation and possibly even reports of your own experiences.

Best regards

We now do not know whether we as buyers can waive this warranty in good conscience.

Is it building land or not?

The property is a gap in development and is part of a development plan, which is also publicly accessible.

If that is the case, then why do you need a warranty? Development plan = the property may be built on. Period. End of story.

I would appreciate advice on how you would handle the situation and possibly even reports about your own experiences.

See above. You are buying a property with the probable designation in the land register as "building and open space." There is a valid development plan and it is a gap in development. Sign and done. Or do you still need a seller’s warranty when buying a gasoline car that the gasoline engine is guaranteed to run on gasoline? Or when buying a mobile phone approved for D/EU use that it can also be used for calling? No.

Why should I, as the seller, guarantee that you can implement your wishes there? In the end, you return the property because only a gable roof and no urban villa were approved. You have to clarify that with the municipality...

In principle, the notary clerk argued that such a guarantee from the seller is customary and the waiver of the guarantee is unusual. The seller also does not want to assume any guarantees for setback area transfers and for the degree of development.

Regarding development, we know the current status.

Regarding setback area transfers, there is nothing in the land register nor in a program at the building supervisory authority. However, the information from the building supervisory authority was that this unfortunately does not mean that nothing of this kind exists.

To those who have already purchased building land: How did you regulate this contractually?

...

Or do you still need the seller’s guarantee when buying a car with a petrol engine that the petrol engine is indeed guaranteed to run on petrol? Or when buying a phone approved for D/EU that you can actually use it to make calls? No.

From my point of view, this is a different case. Let’s stick to the example of the petrol engine. If the engine could not run on petrol after the purchase, it would probably be a case of deception/defect. I would then have the option to take legal action.

Regarding the property: If it later turns out without any guarantee that the property is not buildable, from my point of view (and according to the notary’s opinion) I as the buyer have no possibility of legal recourse and am left stuck with it.

From my point of view, this is a different case. Let's stick with the example of a gasoline engine. If the engine were found after purchase to not be able to use gasoline, that would probably be a case of deception/defect. I would then have the option to use legal remedies.

Regarding the property: If it later turns out without a guarantee that the property is not actually buildable, I as a buyer in my opinion (and according to the notary) have no legal recourse and am stuck with it.

No – if a development plan exists, you have an enforceable legal claim to build according to the development plan.

And now from practical experience. No, it is not customary to include a guarantee of buildability in the purchase contract. It is customary to address the development issue (previous development costs are borne by the seller, future costs by the buyer + information on the development status) and the definition of the property, preferably with reference to the location in development plan XYZ or, for example, the location in the §34 area. For other points, e.g. a specific building planned by the buyer, the seller assumes no guarantee. Then there is the response regarding contamination (e.g. "the property is not listed in the contamination register") or similar.

And if all that is not enough for you, then you file a building pre-application.

The guarantee you want is absolutely unusual in practice! I as the seller would not give it. Issue closed, I look for another buyer and you look for another property.