If the notary has made mistakes

Notaries also make mistakes.

And even in this honorable professional group there are black sheep as elsewhere. Various examples from recent years – some of which we have reported on in recent issues – show that humanity is by no means alien to this state of affairs either. The VfE recommends that, if necessary, you lodge a complaint with the Federal Chamber of Notaries if you feel aggrieved by the notary’s conduct. The following tips are intended to help you review the notary’s conduct and formulate the complaint.

Note, however:

Injury is usually perceived subjectively. Before complaining, you should therefore check thoroughly whether the damage is due to misconduct on the part of the notary (this has often been the case, for example, with “midnight notaries” – we reported!). If you are convinced that the damage was caused or contributed to by the notary, the Munich lawyer Johannes Fiala recommends the following procedure:

At the beginning there is a description of the case with the following indications, among others:

– Reference to case of damage and proof by expert opinion on the capitalized earnings value

– Reference to the number of further aggrieved parties in the WEG and derived therefrom

– Reference to estimation of the total damage in the object

– Reference to the possibility of statistics on cases in which the notary plays a role

– Note if “Notary activity on call” or “…. at night time?” … after the agent has 2soft-knocked the buyer”.

– Reference to possibilities of proof: Deeds (No … of …) and witnesses – Reference if notary has not read out everything that is written in the deed

– Note if notary has exchanged sheets or changed them subsequently

– Note if in the notary’s office provided rooms for other business (conclusion of loan agreement, etc.) or was present at signature and he “other business”, and did not give instructions

– Note if notary has only read out without ascertaining the legal capacity (aggrieved party was discouraged, under pressure, drunk, was on tablets etc.) – e.g. by brief conversation on the sidelines….

– Note if no instruction about high trustee costs has been given

– Note, if notary has not referred to a tax advisor for tax saving model (or advised himself?)

– Note, if other details give reason to doubt the impartiality (notary with the seller ?per DU? and the like)

– Note if the notary has also notarised the “preliminary documents” (e.g. declaration of partition, previous purchase by the vendor himself).

– Note if notary knows the object (also from the press…)

– Note, if seller or agent according to the contract already publicly known as unserious

1. warning (duty to tell the truth):

Correct information must be provided – in other words, it must not be added or presented in the case if it was not so. In the case of spouses, one should write and the other should be available as a witness.

2nd warning (troublemakers):

It is important that the description is factual and, if necessary, has been checked beforehand (punishability of defamation). In addition, assertions such as “sold far below value” must be substantiated in concrete terms – e.g. by means of an expert opinion on the capitalised earnings value, because without proof the matter will probably not be pursued (motto: There are different opinions … proof could not be provided … therefore the proceedings had to be discontinued … Such a thing could be done by form letter and without the support of expert opinions the accusations could easily be dismissed.

3. warning (claims):

In general, compensation for damages is only a secondary consideration in the case of the notary, because it is a matter of official liability as so-called subsidiary liability. Only when no one else is liable (or is still “sueable”) does liability come into question.

Example:

The intermediary would be primarily liable … is however over all mountains … or long since deleted after bankruptcy in the trade register … etc.. The address Bundesnotarkammer z.Hd. management personally Burgmauer 53 50667 Köln Perseverance pays off! Numerous new successes are in most cases among other things a result of tenacity, patience and persistence. This proves itself time and again in our negotiations with banks and financing institutions.

The chairman of the association, Johann Tillich, can boast of particular tenacity. His intransigence and perseverance, with which he works on the cases and “pokes holes” in the bankers again and again, with which he argues and sometimes also threatens, however, pay off many times over:

For those whose business he represents. Month after month, positive results are thus achieved by him and the employees as well as by lawyer Johannes Fiala and auditor Karl-Heinz Weber. It’s not always the big breakthroughs that some may dream of. But considerable results can also be accumulated in small steps. Here it is a few thousand marks in interest rebates, there it is agreements on the bank’s waiver of an early repayment decision, sometimes it is also a question in the first step of bending off threatening coercive measures in order to start agreements in favour of the aggrieved parties in the second step.

A tedious and laborious business it often is, involving great personal effort and demanding the whole man. And yet – or perhaps precisely because of this – we are delighted with every success, no matter how small, that we can chalk up. For on the one hand, this gives the affected person a first small help, and on the other hand, even the smallest success gives new courage and new energy to continue. Because perseverance is not only important for those who stand up for the members of the association and represent their affairs, but also for the people concerned themselves. Despondency and resignation are the factors that many banks rely on when dealing with injured parties. Confident that the economically stricken customers will very quickly run out of steam and simply have no more energy to fight on, the banks are trying to drag out all the proceedings, preferably extending them to the never-never day. But the VfE makes sure that this calculation does not work out. In the next issue, we’ll bring you another success story.

by Dr. Johannes Fiala

Our office in Munich

You will find our office at Fasolt-Strasse 7 in Munich, very close to Schloss Nymphenburg. Our team consists of highly motivated attorneys who are available for all the needs of our clients. In special cases, our law firm cooperates with selected experts to represent your interests in the best possible way.

About the author

Dr. Johannes Fiala
PhD, MBA, MM

Dr. Johannes Fiala has been working for more than 25 years as a lawyer and attorney with his own law firm in Munich. He is intensively involved in real estate, financial law, tax and insurance law. The numerous stages of his professional career enable him to provide his clients with comprehensive advice and to act as a lawyer in the event of disputes.
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