Priority Notice of Conveyance: How It Protects the Purchase Between Notary Appointment and Land Register
Some time passes between the notary appointment and the entry in the land register. During that time, the seller still appears in the land register as the owner. The priority notice of conveyance (Auflassungsvormerkung) secures the buyer’s claim to ownership in the meantime. The land registry charges around 0.1 percent of the purchase price for it. Without it, the purchase price usually does not become due.
Table of contents
At a glance – priority notice of conveyance
- What it is: an entry in Section II of the land register that secures the buyer’s claim to ownership (section 883 BGB).
- What it does: If the seller transfers or encumbers the property afterwards without the buyer’s consent, this is ineffective against the buyer insofar as it impairs the buyer’s claim. This also applies to enforcement measures and insolvency (section 883 (2) BGB, section 106 InsO).
- What it does not do: The buyer only becomes the owner once the land registry records the transfer of ownership (section 873 BGB).
- Purchase price: It usually only becomes due once the priority notice stands at the agreed rank in the land register. The notary notifies the parties that the price is due.
- Costs: The land registry charges half a fee, 317.50 euros for a purchase price of 300,000 euros and 467.50 euros for 500,000 euros. Cancellation costs 25 euros. In the normal execution of the purchase agreement there is no separate notary fee.
- If the purchase falls through: The land registry cancels the notice on the basis of the buyer’s consent to cancellation or a clause in the purchase agreement. Without either, a lawsuit is usually the only option.
What is a priority notice of conveyance?
The priority notice of conveyance is an entry in Section II of the land register. It secures the buyer’s claim to the transfer of ownership until the land registry records the buyer as the owner. The law refers to it generally as a priority notice (Vormerkung, section 883 BGB, in German). In a property purchase, people also call it a priority notice of ownership (Eigentumsvormerkung).
With the purchase agreement, the buyer only acquires a claim to ownership. The buyer becomes the owner only when registered in the land register (section 873 BGB). Until then, the seller remains in the land register and could sell or encumber the property a second time.
Where does the priority notice appear in the land register?
In Section II. This section lists encumbrances and restrictions on the property, such as rights of way or rights of residence. In simplified form, the entry reads: “Priority notice securing the claim to transfer of ownership for [name]; entered on [date] with reference to the consent of [date].” For the structure of the land register, see our article on the land registry.
Conveyance, priority notice, transfer of ownership: what is the difference?
The conveyance (Auflassung) is the agreement between buyer and seller that ownership is to pass. The parties declare it before the notary. The priority notice secures the claim to this in the land register. The transfer of ownership is the registration of the buyer as owner. Only then does ownership pass.
| Priority notice of conveyance | Conveyance | Transfer of ownership | |
|---|---|---|---|
| What | Securing the claim in the land register | Agreement on the transfer of ownership | Registration as owner |
| Legal basis | sections 883, 885 BGB | sections 873, 925 BGB | section 873 BGB |
| When | applied for directly after the notarisation | declared at the notary appointment | after payment of the purchase price and once all documents are available |
| Where in the land register | Section II | not entered | Section I |
| Effect | later dispositions are ineffective against the buyer | no ownership on its own | ownership passes, the priority notice is cancelled |
Both sides must declare the conveyance before the notary while present at the same time, in person or through a representative. It may not contain a condition (section 925 BGB). That is why the parties usually declare it in the purchase agreement itself. However, the notary only submits it to the land registry once the buyer has proven payment of the purchase price.
Is the buyer already the owner with the priority notice?
No. Ownership only arises with the entry in Section I (section 873 BGB). The purchase agreement sets out when possession, benefits and burdens pass, usually on payment of the purchase price. From then on, the buyer generally bears the running costs such as property tax and insurance, even if not yet registered. You can read more about the process on the page Notary for real estate law in Berlin.
What does the priority notice of conveyance protect against?
Dispositions of the property after the entry of the priority notice are ineffective against the buyer insofar as they would impair the buyer’s claim. This also applies to enforcement measures and to dispositions by an insolvency administrator (section 883 (2) BGB). The priority notice therefore protects the buyer against a transfer to third parties, new land charges without the buyer’s consent and the consequences of the seller’s insolvency.
| Case | with priority notice | without priority notice |
|---|---|---|
| The seller sells a second time and has the second buyer registered | The second acquisition is ineffective against the buyer (sections 883, 888 BGB) | The second buyer becomes the owner; only damages remain |
| The seller creates a new land charge without the buyer’s consent | The land charge is ineffective against the buyer | The buyer acquires an encumbered property |
| A creditor of the seller has a judicial mortgage registered | ineffective insofar as it impairs the claim | The encumbrance remains |
| Compulsory auction against the seller | The priority notice is treated like a registered right (section 48 ZVG). If a creditor with a better rank pursues the auction, however, it lapses with the award (sections 52, 91 ZVG) | The property goes to the successful bidder; only claims against the seller remain |
| Insolvency of the seller | The buyer can demand performance (section 106 InsO) | The insolvency administrator can refuse performance (section 103 InsO) |
This does not block the land register. The land registry continues to register later rights. However, they are ineffective against the buyer. The buyer can require the beneficiaries to consent to the buyer’s registration as owner or to the cancellation of their rights (section 888 BGB).
The land registry deals with applications in the order in which they arrive (section 17 GBO). This order generally also determines the rank of the registered rights, unless the parties agree otherwise (section 45 GBO). That is why the notary submits the application directly after the notarisation (section 53 BeurkG).
What can still happen?
- Existing encumbrances: Rights already registered beforehand, such as a land charge of the seller’s bank, remain. If a creditor pursues a compulsory auction from such a higher-ranking right, the priority notice lapses with the award. The release of encumbrances agreed in the purchase agreement deals with this: the cancellation of these rights must be secured before the purchase price becomes due. For how to cancel a land charge, see the page Release a land charge.
- Invalid purchase agreement: The priority notice depends on the claim under the purchase agreement. If the agreement is invalid, for example because the notarised price differs from the price actually agreed, it offers no protection.
- Municipal right of first refusal: If Berlin exercises its right of first refusal for a house or plot, it can demand the cancellation of the buyer’s priority notice (section 28 (2) BauGB). This right of first refusal does not exist for condominiums (section 24 (2) BauGB). More on this in the article Right of first refusal in Berlin.
- Defects and tenancies: The priority notice only secures the acquisition of ownership. The purchase agreement sets out what applies to defects or existing tenancies.
From notary appointment to transfer of ownership: the process in Berlin
The notary applies for the priority notice directly after the notarisation. Once the land registry has entered it and all documents are available, the notary notifies the parties that the purchase price is due. After payment and receipt of the tax clearance certificate, the notary applies for the transfer of ownership. At the same time, the land registry cancels the priority notice.
- Draft: For consumer contracts, that is between a business and a private individual, regardless of who sells, the notary usually provides the private individual with the draft two weeks before the appointment (section 17 (2a) BeurkG, section 310 (3) BGB).
- Notarisation: The notary notarises the purchase agreement, the conveyance and the consent to the priority notice.
- Application: The notary submits the application for entry of the priority notice to the land registry.
- Entry: The land registry enters the priority notice in Section II and informs the notary.
- Documents: In parallel, the notary obtains the cancellation documents from the seller’s bank, if applicable the negative certificate on the right of first refusal, and any required approvals.
- Notice that the price is due: Once all conditions are met, the notary notifies the parties that the purchase price is due.
- Payment: The buyer pays by non-cash means, as the law prohibits cash payments for property purchases. The buyer proves payment to the notary, for example with a bank confirmation (section 16a GwG).
- Tax clearance certificate: The tax office issues it once the buyer has paid the real estate transfer tax.
- Transfer of ownership: The notary applies for the registration of the buyer as owner and for the cancellation of the priority notice.
For when each invoice arrives in this process, see the article Additional purchase costs in Berlin.
Which land registry is responsible in Berlin?
Berlin has concentrated its land registries at eight local courts: Charlottenburg, Köpenick, Lichtenberg, Mitte, Neukölln, Schöneberg, Spandau and Tempelhof-Kreuzberg. The responsible court is the one to which the land register district belongs. This does not always match the borough. The Mitte land registry, for example, handles properties in Pankow, Prenzlauer Berg or Reinickendorf. The full allocation is available from the Court of Appeal (Kammergericht), in German.
How long does the entry take?
That depends on the land registry and its workload.
As soon as the land registry has entered the priority notice, it informs the notary, who passes the news on.
The article Transfer of ownership in Berlin explains what the time until the entry as owner depends on.
What delays the entry?
- The seller does not yet appear in the land register (section 39 GBO). An exception applies when heirs sell: they do not need to appear in the land register first (section 40 GBO).
- Powers of attorney or proof of representation are missing or not in the required form (section 29 GBO).
- The land registry sees an obstacle and sets a deadline for removing it by interim order (section 18 GBO).
When is the purchase price due?
Usually when three conditions are met: the priority notice has been entered at the agreed rank, the cancellation of old encumbrances is secured, and any required approvals and, where applicable, the negative certificate on the right of first refusal are available. The notary checks this and notifies the parties that the price is due. The purchase agreement sets out how much time the buyer then has for payment.
Rank means that the priority notice may only rank behind rights that the buyer takes over or whose cancellation is secured. Our checklists for the condominium purchase agreement and the land purchase agreement provide for a period of 14 days as a rule.
For the seller, this means that the money arrives after the notice that the price is due, within the agreed period. If a land charge of the seller’s bank is still in the land register, the buyer pays the amount that bank requires for cancellation directly to it. The seller receives the remainder.
Buying from a property developer
When buying from a property developer, the developer may only accept payments once several conditions are met (section 3 (1) MaBV). The contract must be effective and any required approvals must be available, as confirmed by the notary. The priority notice must stand at the agreed rank; for a condominium, the land register must also show the division into units. In addition, the release of encumbrances must be secured, including in case the building is not completed, and the building law requirements must be met.
The buyer then pays in up to seven instalments according to construction progress (section 3 (2) MaBV). The developer may only deviate from this if it provides security under section 7 MaBV, such as a guarantee that covers all repayment claims. The priority notice does not remove the risk that the developer does not complete the building.
Financing: a land charge before the transfer of ownership
The bank requires a land charge before paying out the loan. At that point, the property still belongs to the seller. That is why the seller grants a financing power of attorney (Belastungsvollmacht) in the purchase agreement. This allows the buyer to create a land charge for their bank before the transfer of ownership.
The land registry enters the land charge after the priority notice. Without the buyer’s consent it would be ineffective against the buyer (section 883 (2) BGB). The bank therefore needs a land charge that is also effective against the priority notice. There are two ways to achieve this. With a subordination, the priority notice moves behind the land charge in rank (section 880 BGB). With an effectiveness note (Wirksamkeitsvermerk), the rank stays as it is: because the buyer has consented to the land charge, it is effective against the buyer, and the land register records this (Federal Court of Justice, decision of 25 March 1999, V ZB 34/98, BGHZ 141, 169).
The seller remains protected in the process. As a rule, until full payment the bank may use the land charge only for the loan that pays the purchase price, and it pays directly towards the purchase price.
For the costs of the land charge, see the article Additional purchase costs in Berlin. For how to set it up, see the page Financing land charge.
What does the priority notice of conveyance cost?
For the entry, the land registry charges half a fee under Table B of the Court and Notary Fees Act (KV 14150 GNotKG, fee schedule; both in German). That is around 0.1 percent of the purchase price: 317.50 euros for 300,000 euros and 467.50 euros for 500,000 euros. The later cancellation costs 25 euros (KV 14152 GNotKG). In the normal execution of the purchase agreement there is no separate notary fee for the priority notice. If the purchase falls through, the notary may charge a fee for the consent to cancellation.
| Purchase price | Full fee under Table B | Entry (0.5) | Cancellation | Total | Share of price |
|---|---|---|---|---|---|
| €200,000 | €435 | €217.50 | €25 | €242.50 | 0.12% |
| €300,000 | €635 | €317.50 | €25 | €342.50 | 0.11% |
| €400,000 | €785 | €392.50 | €25 | €417.50 | 0.10% |
| €500,000 | €935 | €467.50 | €25 | €492.50 | 0.10% |
| €750,000 | €1,335 | €667.50 | €25 | €692.50 | 0.09% |
| €1,000,000 | €1,735 | €867.50 | €25 | €892.50 | 0.09% |
This is how the land registry calculates for a purchase price of 300,000 euros:
- The transaction value is the purchase price, here 300,000 euros (sections 45, 47 GNotKG).
- The full fee under Table B for this value is 635 euros.
- The entry costs half of it: 317.50 euros.
- After the transfer of ownership, the cancellation adds 25 euros.
- In total that is 342.50 euros, around 0.11 percent of the purchase price.
The notary does not charge extra for the priority notice. The notary files the application as part of the purchase agreement, and this is covered by the notarisation fee (preliminary remark 2.1 (2) of the GNotKG fee schedule). Many sources quote 0.15 to 1 percent of the purchase price for the priority notice. That is too high: half a fee under Table B is around 0.1 percent for all usual purchase prices.
The land registry costs are usually borne by the buyer. For who bears which costs and what the purchase costs in total, see the article Additional purchase costs in Berlin.
How is the priority notice of conveyance cancelled?
After a regular purchase, the notary applies for cancellation together with the transfer of ownership, and the land registry charges 25 euros for it. If the purchase falls through, the land registry needs a notarially certified consent to cancellation from the buyer or a clause in the purchase agreement that provides for this case. If neither exists and it cannot be proven in public form that the claim has lapsed, a lawsuit for consent to the cancellation is usually the only option.
After the transfer of ownership
The notary applies for cancellation together with the transfer of ownership, and the land registry charges 25 euros for it. The prerequisite is that no rights have been entered between the priority notice and the transfer to which the buyer has not consented. Otherwise the buyer would lose the protection against these rights through the cancellation. The notary checks the land register beforehand.
If the purchase falls through
If one side effectively withdraws from the contract, for example because the buyer did not pay the purchase price, the priority notice initially remains in the land register. The land registry cancels it on the basis of the buyer’s consent to cancellation in notarially certified form (sections 19, 29 GBO). If the buyer has already paid money, the buyer only has to consent to cancellation against repayment (section 348 BGB).
Many purchase agreements provide for this case:
- Power of attorney for cancellation: The buyer authorises the notary to consent to the cancellation under precisely defined conditions, for example after withdrawal due to non-payment.
- Deposited consent to cancellation: The notary holds the consent and only uses it under the agreed conditions. In practice, people also call this a “drawer cancellation” (Schubladenlöschung).
- Priority notice subject to a condition subsequent: The priority notice lapses as soon as the notary files an application for cancellation under the agreed conditions (Oldenburg Higher Regional Court, decision of 4 May 2017, 12 W 57/17).
The notary charges a separate fee for drafting or certifying the consent to cancellation. The land registry adds 25 euros for the cancellation.
If the buyer does not cooperate
Without consent, the land registry only cancels the entry if it has been proven in public form that the secured claim no longer exists (sections 22, 29 GBO). Public documents rarely prove a withdrawal. The seller then has only one option: a lawsuit for consent to the cancellation (section 894 BGB). As long as the priority notice remains in the land register, the seller can practically not sell the property to anyone else.
Is the priority notice of conveyance mandatory?
Not by law. When buying from a property developer, it is usually a condition for payments to become due (section 3 MaBV). For private purchases it is standard. Anyone who pays without a priority notice and without other security makes an unsecured advance payment: if the seller sells twice or becomes insolvent, the money is at risk. The notary points out this risk at the notarisation.
The parties can nevertheless waive the priority notice, for example for a transfer within the family without a purchase price. The decision is theirs.
How long is a priority notice of conveyance valid?
Without time limit. It remains in the land register until the land registry cancels it. However, it depends on the claim under the purchase agreement, and this claim becomes time-barred after ten years (section 196 BGB). If the claim can permanently no longer be enforced, the owner can demand that the priority notice be removed (section 886 BGB).
Special cases
- GbR as buyer: The civil-law partnership must be registered in the register of partnerships before the land registry can enter the priority notice for it (section 47 (2) GBO). More on this in the article eGbR and property.
- Transfer to children: Here, a priority notice for reconveyance often secures the right of the parents to reclaim the property. More on this in the article Transferring a house to your children.
- Several buyers: The land registry also enters the ratio in which they are entitled, for example half each (section 47 (1) GBO).
Practical tip: Pay the purchase price only once the notary has told you that it is due. At that point the priority notice is in the land register and the cancellation of old encumbrances is secured.
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Frequently asked questions: priority notice of conveyance (FAQ)
Is the buyer already the owner with a priority notice of conveyance?
No. Ownership only arises when the land registry enters the buyer in Section I of the land register (section 873 BGB). The priority notice only secures the claim to it.
How long does the entry take after the notary appointment?
That depends on the responsible land registry. The notary submits the application directly after the notarisation and passes on the news of the entry.
Is the priority notice of conveyance mandatory?
Not by law. When buying from a property developer, it is usually a condition for payments to become due (section 3 MaBV). Without a priority notice and without other security, the buyer pays unsecured. The notary points out this risk.
What does a priority notice of conveyance cost?
The land registry charges half a fee under Table B: 317.50 euros for a purchase price of 300,000 euros and 467.50 euros for 500,000 euros. The later cancellation costs 25 euros. In the normal execution of the purchase agreement, the notary does not charge separately for it.
How long is a priority notice of conveyance valid?
It has no time limit and stays in the land register until the land registry cancels it. However, it depends on the claim under the purchase agreement. If that claim lapses, the land registry must cancel it.
Who cancels the priority notice after the purchase?
The notary applies for cancellation together with the transfer of ownership. Beforehand, the notary checks that the land registry has not entered any rights in between without the buyer’s consent.
What happens if the buyer does not pay the purchase price?
The seller can withdraw in accordance with the contractual and statutory rules. The land registry then cancels the priority notice on the basis of the buyer’s consent to cancellation or a clause in the contract. Without either, the seller usually has to sue.
What is the difference between conveyance and priority notice of conveyance?
The conveyance is the agreement on the change of ownership, declared before the notary (section 925 BGB). The priority notice secures the claim to this change in the land register (section 883 BGB).
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From the notary appointment to the land register
The notary applies for the priority notice directly after the appointment, monitors when the price becomes due and applies for the transfer of ownership only once the purchase price has been paid. The notary acts impartially for both sides. For how a property purchase with a notary in Berlin works, see the page Notary for real estate law in Berlin.
