Newsletter No. 25 (EN)
Notarisation of Documents and Signatures in Germany and Thailand
I. When do I need a notarisation
There are certain cases and transactions where a notarisation of documents or signatures is required, for example for real estate matters, registration issues, special bank transactions or if the parties agreed to do so. Typical documents requiring notarisation in Germany are:
Real estate matters: If buying or selling real estate (land and/or buildings and apartments), notarization is generally required, Sec. 311b of the German Civil Code (BGB). Note that German law distinguishes between the sales contract (stipulating the legal duty to transfer the property and pay the purchase price) and the actual transfer of ownership of the property. Sec. 311b BGB only requires the notarisation of the sales contract. However, mostly the transfer of ownership is also done by the notary public. If a German notary public is asked to do so, he will implement these two legal transactions (sale plus transfer of ownership) in one contract, the fee for which is 20/10 of the matter. However, the sales contract alone does not have to be notarized by a German notary public. This can just as well be done by a foreign notary public and in many cases, a Swiss notary public is chosen because his fee is negotiable. The contract concerning transfer of ownership must be notarized by a German notary public, but the fee for this transaction is only 5/10 of the matter.
- Marriage contract and same-sex partnership contracts (Sec. 1410 BGB; Sec. 7 Abs. 1 LPartG)
- Declaration of adoption (Sec. 1750 Abs. 1 S. 2; 1762 Abs. 3 BGB)
- Contract of inheritance (Sec. 2276 Abs. 1 S. 1 BGB)
- Set up of a limited company (private or public) (Sec. 2 Abs. 1 S. 1 GmbHG, 23 Abs. 1 S. 1 AktG)
Although there are no notary publics in Thailand, notarisation is required or might be needful in some cases, such as:
- If the authority requires a foreign signer to sign documents in Thailand such as the power of attorney for any transaction at the land office (in most cases, the officer will request to provide the entry stamp visa page to prove that the principal visited Thailand on the date of the documents). Therefore, if the foreigner signs the documents from abroad, they will need notarization from their country;
- Real estate matters: Since the sales agreement concerning property is made before the responsible government officer, notarisation of the sales agreement is not required. However, if buying a condominium in Thailand as a foreigner with the assistance of a lawyer, notarisation of the power of attorney is required. The officer may also ask for notarisation of the passport copy.
- In the case of a registration of a trademark in Thailand by a foreigner, the power of attorney must be notarised.
- For projects by Government Authorities or State Enterprises the notarisation of documents showing the status of the foreign company is required.
- Registration of a branch office or representative office under the Foreign Business Act. All company registration documents and the power of attorney must be notarised.
- Notarisation of contracts might be necessary if the contracting parties agreed to do so.
II. Who is responsible for notarisation and certification?
Authorised persons for the notarisation of documents, transactions and for certifications in Germany are notary publics.
Furthermore, there are authorities with notary power, for example embassies according to Sec. 2 of the Consular Act (Konsulargesetz). According to Sec. 10 of the Consular Act, a notarisation provided by an embassy is equal to that of a notary public.
The Law Society of Thailand provides the services of notarisation and certification through specialised attorneys. They are specially certificated and called “Notarial Service Attorneys”. In general, if the certification of the notarization is required, the Ministry of Foreign Affair will certify the notarisation (which is called “legalization”) by confirming the status of “Notarial Services Attorney” with the Lawyers Council.
III. Legal Regulations
Notarisation and the amount of notary fees are regulated in Germany by the Federal Notarisation Act (Beurkundungsgesetz), the Federal Notary Ordinance (Bundesnotarordnung) and the Federal Act on Court and Notary Fees (Gerichts- und Notarkostengesetz).
Fees for notarisation will be levied according to Sec. 19 of the Federal Act on Court and Notary Fees. Invoices not complying with the regulations set forth in Sec. 19 (1) and (2) are invalid.
Under the provisions of this law, the fees depend on the value of the matter (see below). The fee for a “simple” service can be high because of the high value of the matter or low in another case although the notary had to invest a lot of time and work.
The minimum fee is EUR 15 (Sec. 34 (5) Federal Act on Court and Notary Fees). Appendix 2 to the Federal Act on Court and Notary Fees stipulates in table B the fee in relation to the value of the matter (please find below a copy of the relevant table).
a) What is the “value of matter” mentioned in the German law?
The value of the matter depends on the economic value of the authenticated statement (Sec. 3 Federal Act on Court and Notary Fees). Often the economic value of a case is expressed in the statement itself in the form of an amount of money. For example, if property will be sold for EUR 100,000, the value of that matter is EUR 100,000.
However, if the economic value of a matter is not assessable, the notary may estimate the value (Sec. 36 Federal Act on Court and Notary Fees).
b) Additional costs
According to No. 32000 ff. of Appendix 1 of the Federal Act on Court and Notary Fees, additional expenses can be charged, for example documentary costs (EUR 0.50/page for the first 50 pages, thereafter EUR 0.15) and additional actual expenses (e.g. for travel and telephone).
According to No. 32014 of Appendix 1 of the Federal Act on Court and Notary Fees, VAT has to be added.
Fees for legalizations by the Embassies are regulated in Sec. 25 f. of the Consular Act.
b) Can the fees be reduced in Germany?
The Notary is not allowed to reduce or raise the notary legal fees (Sec. 17 Federal Notary Ordinance). Thus each and every notary in Germany charges the same fees (whereas fees of notarisation in Switzerland are negotiable).
There is no regulation by law concerning notary publics in Thailand and fees are not fixed as in Germany. Therefore each “Notarial Service Attorney” in Thailand may charge as agreed.
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