Questionable notarial contract content / procedure in house purchase

Hello everyone,

we have a small dilemma and I wanted to ask the collective experience of the forum if anyone has ever had such a situation and can share any experiences. We don’t quite understand the procedure and keep wondering if there is a catch.

Situation:

We found a house, a really very suitable one, and we also viewed it. Then a second time with an expert. He also gave his okay. Financing fits and otherwise it is really a great house.

The house is currently still rented, but the tenants themselves have properly and timely terminated the lease as of 31.05.2019. We are in no hurry with the house and moving, and that is fine with us.

We then agreed on the price with the seller and now everything went quite fast or is supposed to go fast.

On Monday we finally inspected the property, on Thursday we received the preliminary notarized contract, and the notary appointment is supposed to be next Wednesday.

Ok .. sometimes things just move quickly.

We agreed with the landlord that the property would be handed over "vacant, cleared and without tenancy." That is also fine and it is written that way in the contract. However, the payment date is 20.05.2019 (when the tenancy definitely still exists (whether the tenants have moved out by then or not)).

I will copy the two relevant paragraphs involved:

§ 3 Purchase Price and Due Date

1.
The purchase price amounts to a total of
€ XXXXXXXXX
(in words: EURO XXXXXX)

2.
The purchase price becomes due on 20.05.2019,

however not before:

a) a land charge registration for the buyer has been entered in the land register, ranking only after the encumbrances or land charges listed in § 1, in the establishment of which the buyer has participated,

b) the deletion or discharge documents for the cancellation of non-assumed encumbrances are available, without trust obligations being imposed that are incompatible with the contract.

c) except for the tax clearance certificate all other documents and approvals necessary for the contract-compliant transfer of ownership are available, in particular the municipality has confirmed that a statutory pre-emption right does not exist or is not exercised;
The notary is hereby commissioned to inform the contracting parties of the due date of the purchase price.
The purchase price shall, however, be due no earlier than one week after receipt of a notification from the notary to the buyer that the conditions are met.

3.
The purchase price is payable to the seller's following account:

To the extent that land charges are to be redeemed and land charge creditors grant deletion approvals or charge releases only against payment of a redemption amount, the buyer shall first pay these redemption amounts directly to the creditor in the amount requested by the creditor out of the purchase price and pay the remaining purchase price to the above-mentioned seller account. - 5 -

The notary is tasked with obtaining the release and deletion documents of the non-assumed encumbrances

And
§ 4 Transfer of Possession

1.
Possession, benefits and burdens, as well as the risk of accidental loss or accidental deterioration and the obligation to secure the property pass to the buyer on 20.05.2019, provided that the purchase price has been paid directly to the seller or the land charge creditor, otherwise on the day after full receipt.

2.
The purchase object is currently rented.
The tenancy was terminated by the tenant as of 31.05.2019.
The seller guarantees that the purchase object will be handed over to the buyer without tenancy and cleared at the date according to paragraph 1. If this does not happen, the buyer can claim compensation for loss of use as well as additional delay damages in case of default and withdraw from the contract after setting a reasonable grace period, whereby the seller must pay damages based on the negative interest.

With regard to the clearance and surrender of the purchase object, the seller submits to immediate compulsory enforcement against the buyer based on this document.
The notary is only to issue the enforceable copy to the buyer after the date according to paragraph 1 and when proof of payment of the purchase price at least by private deed has been provided, without this leading to a reversal of the burden of proof.

If I understand this correctly, all rights, obligations and other matters pass to us on 20.05.2019 with the due date, the house is to be handed over according to §4 paragraph 2 "without tenancy and cleared at the date according to paragraph 1 (20.05.2019)." This is in fact not possible, as the tenancy still exists at that time.

Furthermore, we will have "officially" paid for the house as of 20.05.2019 and have possession, but tenants are still inside. The key handover can then accordingly only take place on 01.06.2019?!

Is this a procedure that is problematic in any way? We are just afraid that the tenant might not move out (for whatever reason) and then on 01.06. we won’t be able to enter the house because the tenant is still inside.

The seller justifies this date with his loan to be redeemed which is due on 01.06.2019 and that anyway some time passes after payment on 20.05.2019 until the notary has entered the property accordingly.

Thanks for a brief assessment.

Best regards

I don't really know much about that. But the proper termination by the tenants has been given, right? Then the seller should also provide you with the termination letter for the notarization appointment. Shouldn't that be enough to evict the tenants if necessary? But honestly, I don't think the tenants are even counting on that. They don't know anything about the clause.

Talk to the notary about it. Right away on Monday and clarify what if. Otherwise have it changed to 31.5., but not before....apartment empty.

According to your report, there are only a few days between receiving the purchase contract and the notary appointment? There must be 2 weeks in between. The notary also works for you, you can ask him for advice.

The provision in § 4 I read as meaning that a handover vacated on 20.5. must take place (if all other conditions for payment are met and paid by then) and the seller owes loss of use if the property is only vacated later (on 31.5.).

Unfortunate regulation for both sides because of the few days. It is best to change this to the end of May, and everyone knows where they stand.

Otherwise, what was said above applies, you pay the notary, then bother him with your questions until you really understand everything.

By the way, the buyer may decide which notary is chosen. Two weeks between receiving the contract and the appointment should be observed. That way, there is time to review everything. I’m not very familiar with it either, but you receive the contract beforehand in order to check for any inconsistencies and then have them changed. Good luck in the new house :)