An agreed appointment is not yet notarisation
§ 311b Absatz 1 BGB generally requires notarisation for a contract concerning the obligation to transfer or to acquire real estate ownership. The provision also contains a curing rule in the case of conveyance and registration. [FORM] This article concerns the ordinary negotiation prior to a notarised purchase, not an already completed special constellation.
Our editorial recommendation: First ascertain what has actually occurred. Draft contract, appointment scheduling, financing commitment and notarised contract are different stages of processing. Assign each received declaration to its actual purpose. An optimistic “We have agreed” is not turned into a notarised purchase contract merely by your next transfer.
What the BGH says about expected cost reimbursement
In the judgment V ZR 11/17 of 13 October 2017 the BGH deals with a failed apartment purchase with financing already obtained. For liability due to aborted real estate negotiations it requires a particularly serious, regularly intentional breach of duty of loyalty. The mere absence of a good reason for termination is not sufficient. [BGH]
The knowledge that prospective buyers, trusting in the conclusion, have already entered into a financing contract does not automatically make a later termination such a breach. In the decided case the requested reimbursement of rescission costs was not granted. [BGH] No general permission to deceive or to conceal an already abandoned readiness to conclude is derived from the judgment.
A hypothetical purchase treated as certain too early
In the invented case Daniel agrees the draft of an apartment with the selling party. He receives a notarisation appointment and has already committed himself to his bank. Later the purchase does not take place. Daniel then initially declares that the other party must therefore bear all financing costs because they knew about his bank appointment.
Instead he has the actual declarations, timings and alleged breaches of duty examined. In parallel he deals with his own contract with the bank and the steps that are still possible. His message about the financing neither replaces the conclusion of the purchase nor the separate prerequisites of a claim for compensation. The case does not determine any real credit agreement and no concrete amount of damage.
Commitment, later change and deception are not the same
The BGH distinguishes an actually existing readiness to conclude from a merely simulated one. A later internal withdrawal without timely disclosure may also be assessed differently in law. [BGH] What matters are concrete facts; an unpleasant price change alone does not retroactively render every prior statement untrue.
Our practical recommendation: Secure the complete correspondence and the state known at each time. Note confirmed times and recognisable contradictions. Avoid subsequent assertions about others’ intentions for which you have no basis. For a professional review a provable course of events is more helpful than a long general account of disappointed trust.
Nevertheless handle your own follow-up contracts immediately
Submit each obligation entered into individually: financing, commissioned services and other preparations. Ask for an explanation of which termination options, conditions and actual costs exist. The cancellation of the purchase does not resolve these questions across the board; the article in particular does not decide any notary fee or brokerage invoice.
For a further acquisition attempt the financing route will be coordinated in time and contractually with the notarisation. The BGH mentions as possible routes, among others, a prior financing commitment or a financing subject to corresponding conditions. [BGH] Whether an institution offers that concretely and whether the arrangement sufficiently supports your purchase must be clarified before commitment.
Your next step after the termination is therefore twofold: examine possible claims on the basis of actual breaches of duty and handle your own cost commitments independently of that. An only expected reimbursement must not remain the sole response to an ongoing loan agreement.