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Municipal Vorkaufsrecht (§§24–28 BauGB): the notary’s 3‑month window, deposit clauses and checks for foreign buyers
Clear, usable guide to §§24–28 BauGB: how and when a municipality may step in, why a three‑month clock matters for notaries and buyers, contract clauses that protect deposits, and the specific checks foreign buyers should insist on before signing.
What the municipal Vorkaufsrecht is and where it comes from
Municipal pre‑emption (Vorkaufsrecht) is a statutory right in the German Building Code (Baugesetzbuch, BauGB). The relevant provisions are §§24–28 BauGB. Section 24 lists the situations where a municipality is entitled to a Vorkaufsrecht (for example: within a binding local development plan (Bebauungsplan), in certain redevelopment or preservation areas, or where land is shown as future residential use in the land‑use plan). Section 28 contains the procedure, including the municipality’s right to be notified and the remedies and valuation rules that apply if it exercises the right. (See §§24 and 28 BauGB.)
The notary’s (and parties’) 3‑month window: what it means in practice
Once the municipality has been given the content of the purchase contract, it may exercise the Vorkaufsrecht only within three months (drei Monate). That three‑month period is set out in §28(2) BauGB. The seller is legally required to inform the municipality; the buyer’s notification replaces the seller’s. Until the municipality issues a certificate that the right does not exist or will not be exercised (a so‑called Negativzeugnis), the land registry (Grundbuchamt) must not register the buyer as owner without proof that the right is resolved. The municipality may ask for a Vormerkung (priority notice) to secure its claim; the municipality bears the entry and deletion costs for that Vormerkung. (See §28 BauGB.)
What notaries do (and must be authorised to do) — practical points
In practice the notary frequently sends the contract or an excerpt to the municipality and — if so authorised in the contract — receives any exercise declaration on behalf of a party. That practice is addressed in guidance from notary bodies and legal commentary: the notary is not automatically obliged by statute to transmit the full contract, but will do so on the basis of a specific authorisation in the deed. Notaries and local authorities also discuss using a Negativzeugnis as a condition precedent for payment of the purchase price. If you are the buyer, instruct your notary in writing to obtain the municipality’s statement (or to withhold fulfilment of payment obligations until a Negativzeugnis is delivered). (See Bundesnotarkammer guidance and professional commentaries.)
Contract clauses that protect deposits and the buyer
Because the municipality can step into the buyer’s position, include clear, express clauses about deposits and payment timing. Useful clauses (to discuss with your German notary/attorney) are: 1) a condition precedent that any deposit or balance becomes due only after a Negativzeugnis is delivered or after the municipality’s three‑month period expires without exercise; 2) an escrow/Treuhand arrangement (deposit held by the notary or an independent escrow agent) with express refund rules if the municipality exercises the right; 3) an express seller obligation to notify the municipality promptly and to indemnify the buyer for losses caused by late or defective notification; 4) a clause that the buyer may rescind and receive immediate refund of deposits if the municipality validly exercises the Vorkaufsrecht or sets the purchase price to the Verkehrswert and the seller withdraws under §28(3) BauGB. Because German law treats Vormerkung and the municipality’s administrative act specially, you should also include timing triggers tied to the municipality’s written statements. These contractual approaches reflect the procedural rights and remedies in §28 BauGB and the practice described by notary professional guidance.
What foreign buyers should check before signing
1) Is the site inside an area listed by §24 or subject to a local Vorkaufs‑satzung under §25 (Bebauungsplan area, Sanierungsgebiet, Erhaltungssatzung, Flächennutzungs‑designation)? Ask the municipality for a written statement. 2) Is the property already WEG‑divided or an Erbbaurecht? §24(2) excludes Vorkaufsrecht in many WEG/Erbbaurecht cases. 3) Who will notify the municipality (seller, buyer or notary) and will the notary be authorised to obtain and accept the municipality’s declaration? 4) Build into the deed the payment‑condition clauses above (Negativzeugnis trigger; escrow) and require the notary to delay registration until the municipality’s position is cleared. 5) Engage a German notary and a local lawyer to check the land‑use status, because the Vorkaufsrecht is a matter of municipal planning law and varies by location. These steps reflect the statutory procedure (BauGB §§24–28) and common notarial practice; they reduce the risk that a deposit is lost after a municipality validly steps in.
When to get professional help
If you are buying from abroad or the property is in a potentially sensitive area (planned Bebauungsplan change, Sanierungsgebiet, Erhaltungssatzung), instruct a German notary and a local lawyer before you sign. Do not treat the model clauses above as a substitute for legal advice. Notaries are the official experts for notarisation, but matters of planning status and the municipality’s discretionary decision are administrative law issues where a lawyer’s local knowledge is often essential.
Nothing on this page is investment, tax or legal advice. Price bands are indicative asking prices and disagree between sources by design. Verify every figure with a qualified German notary, tax adviser (Steuerberater) or lawyer before committing capital.
