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Old 18.01.2021, 09:14
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What are the best practices with Notary contract when buying property?

Hello EF members,

We are in the process of buying a property in canton VD. We made an offer which was accepted and got confirmation from the bank that they will finance the purchase (I don't know the exact conditions yet).
But I am very confused about the Notary part of the transaction.

1. Who chooses the Notary?

There are several posts stating that the buyer should select the Notary. Our bank also confirmed this. But when I called a local Notary, they noted that usually they are contacted by the seller's Agent and not the buyer. The sellers Agent recommended a Notary and offered that he will arrange everything. This offer sounds appealing, but wondering if this Notary will be impartial.

2. What are the best practices for the reservation/purchase contract? Should any clauses be included such as:

- under which conditions can we walk away from the deal after the reservation is paid? e.g. if the financing for some reason does not materializes, I get hit by lighting, etc.
- what are the "must have" clauses to put into the reservation contract?
- what is the "normal" reservation amount?
- what is the "normal" penalty for not closing the sale? Can we expect to get some of the reservation amount back?
- should there be any penalty for the seller for not closing the sale?
- will the standard contract prepared by the Notary be good enough and I should stop to worry?


I realize most of the above are negotiable. But I don't want to over-complicate things, yet I would like to have some common sense protection and follow best practices with the contract.

We are first time buyers and would like to avoid some common mistakes if possible.

Thank you for your help!


Huba
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Old 18.01.2021, 09:30
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Re: What are the best practices with Notary contract when buying property?

- under which conditions can we walk away from the deal after the reservation is paid? e.g. if the financing for some reason does not materializes, I get hit by lighting, etc.

financing is usually solved by having a promise to pay from the bank and making sure this is guaranteed ahead of time.

- what are the "must have" clauses to put into the reservation contract?
- what is the "normal" reservation amount?
- what is the "normal" penalty for not closing the sale? Can we expect to get some of the reservation amount back?
- should there be any penalty for the seller for not closing the sale?

these are all negotiated. i had one where we had a 10% deposit and very little penalty for non-closure (buyer only) and another where we had a 50k penalty on both buyer and seller depending who was at fault.

- will the standard contract prepared by the Notary be good enough and I should stop to worry?

final purchase contract can be relatively standard and should be OK, but of course you should review carefully yourself.
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Old 18.01.2021, 09:30
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Re: What are the best practices with Notary contract when buying property?

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This offer sounds appealing, but wondering if this Notary will be impartial.
By law it must be impartial.

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2. What are the best practices for the reservation/purchase contract? Should any clauses be included such as:
To be valid a pre-purchase or reservation contract must be signed at a notary.

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- will the standard contract prepared by the Notary be good enough and I should stop to worry?
You should not only understand the clauses but also be aware of the impact and consequences. For this as helpful EF members and your lawyer.
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Old 18.01.2021, 10:04
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Re: What are the best practices with Notary contract when buying property?

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these are all negotiated. i had one where we had a 10% deposit and very little penalty for non-closure (buyer only) and another where we had a 50k penalty on both buyer and seller depending who was at fault.
thanks Phil_MCR - I realize there is room for negotiations, but I was wondering where the line should be drawn in the sand for a purchase which does not have special circumstances (certainly not yet), and if there are a set of clauses which are considered "must have" and are considered "fair".

Of course, my incentive is to have clauses that are favorable to me, but I don't necessarily want to overcomplicate the process and negotiate if I have a fair contract.

Will the Notary propose the base-line terms of the reservation/contract, or I need to agree with the buyer?

The potential risk for me is that the seller/agent has more experience, and I will not know if they are taking me for a ride or offering fair terms.
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Old 18.01.2021, 11:50
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Re: What are the best practices with Notary contract when buying property?

How old is the property?
Make sure you have inspected the property prior, since unless agreed otherwise you buy as is (except if the seller has willfully not disclosed a fault).

Normally the buyer choses the notary - you pay the fees unless agreed otherwise (very rare).

A reservation fee is different from the deposit (10%) of the purchase price.
Whilst a reservation fee will be returned in case of a no deal. A deposit (should you back out) is for the seller to keep.

Just to make sure you can incorporate into the reservation agreement "that only if financing is secured."

You agree on a date for the handover - a few days before you pay the remaining 90% of the purchase price to notaries client account.

Of course any paid reservation fee will be deducted.

Any reasonable clause can be incorporated into the contract, which is normally done during the contract reading when all parties are present.

For example a fine should the house not have been vacated on the day of handover etc.
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Old 18.01.2021, 12:20
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Re: What are the best practices with Notary contract when buying property?

From experience you need a clause that sets out that the property is to be delivered vacant of everything not nailed down and in an impeccably clean condition. And what happens if (when) it isn't. If you can try and hold back 5-10% until it is acceptable.

When we bought we kindly agreed to let the previous owners stay an extra couple of days to meet with their scheduled departure.

The left the place filthy and full of junk. And they were gone.
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Old 18.01.2021, 12:41
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Re: What are the best practices with Notary contract when buying property?

No experience to share at the moment but logging as very interested in this thread. Good luck with your purchase!
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Old 18.01.2021, 12:53
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Re: What are the best practices with Notary contract when buying property?

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How old is the property?
Make sure you have inspected the property prior, since unless agreed otherwise you buy as is (except if the seller has willfully not disclosed a fault).

Normally the buyer choses the notary - you pay the fees unless agreed otherwise (very rare).

A reservation fee is different from the deposit (10%) of the purchase price.
Whilst a reservation fee will be returned in case of a no deal. A deposit (should you back out) is for the seller to keep.

Just to make sure you can incorporate into the reservation agreement "that only if financing is secured."
It must have been built in the late 1800, but it "looks" like it has been reasonably well maintained. I am sure there will be some issues, and surprises, but hopefully nothing major. We know that it needs some attention/love and renovation, for example bathroom, kitchen, painting etc.
But we were not planning to do any professional inspection, sounds like this is ignorance in my part?

The bank approved the financing, but nevertheless I think too that we must make the contract contingent on securing the financing.
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Old 18.01.2021, 13:14
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Re: What are the best practices with Notary contract when buying property?

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It must have been built in the late 1800, but it "looks" like it has been reasonably well maintained. I am sure there will be some issues, and surprises, but hopefully nothing major. We know that it needs some attention/love and renovation, for example bathroom, kitchen, painting etc.
But we were not planning to do any professional inspection, sounds like this is ignorance in my part?

The bank approved the financing, but nevertheless I think too that we must make the contract contingent on securing the financing.
Not necessarily, however make sure you get all the documents such as the latest elecricity safety check (OIBT) done every 20 years as well as the energy certificate for buildings (CECB ) mandatory since 2017 (the agent should have those).
Clearly ask if there has been any water damage or mold problem in the past.
Have you looked at the roof? Is there a chimney?

Also make sure you understand all servitudes if any.
The notary will have a copy, but it can also be obtained at the registre-foncier.

Last edited by Sigh; 18.01.2021 at 14:05.
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Old 18.01.2021, 16:15
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Re: What are the best practices with Notary contract when buying property?

I just spoke with the Notary. The lady explained that I choose the notary (since I pay), but the agent needs to initiate the file opening and the start of her work by sending a request email with the information about the property, location, seller, etc.
Once she has all the information, they will open the file and send me an invoice for CHF 10k which I need to pay immediately to start the real contract work, which is deductible from their fees. (Seems steep - it looks like they don't want to do any work without having some skin in the game from the buyer).

Based on the request and information from the agent (courtier), the notary will prepare the contract file. In lack of specific request or indicating specific agreement between the seller and the buyer which is submitted by the agent, the notary will prepare the "standard" contract, whatever that means.

When I asked her if different walk away clauses could be included (i.e. if financing fails, X% of the deposit is returned), she said that in principle clauses can be introduced, but this is rare and these have to be very reasonable and justifiable. She was not very encouraging at all regarding the financing clause and she noted that this would probably be met with resistance from the seller. And the assumption is that if I pay a deposit, I have my financing arranged and I am serious, and intend to close.

I gave her an example of getting into an accident and dying or loosing capacity to work, etc. and she pretty much said that then I would loose my deposit.

The conversation made me less comfortable and not more. I am wondering if she is just looking to keep things "standard" (i.e. simple) to streamline her work. Frankly, I feel a bit disappointed. This Notary was recommended by my bank as being very competent and efficient. Maybe I should have gone with the one recommended by the agent!?
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Old 18.01.2021, 16:44
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Re: What are the best practices with Notary contract when buying property?

When was the last renovation? Based on what I've read here on EF, if it was renovated between about 1950-1985 there may be asbestos under floor and bathroom tiles or in walls, etc. It would be handy to know before you start doing your own renovations and find an expensive surprise.
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Old 18.01.2021, 17:19
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Re: What are the best practices with Notary contract when buying property?

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I just spoke with the Notary. The lady explained that I choose the notary (since I pay), but the agent needs to initiate the file opening and the start of her work by sending a request email with the information about the property, location, seller, etc.
Once she has all the information, they will open the file and send me an invoice for CHF 10k which I need to pay immediately to start the real contract work, which is deductible from their fees. (Seems steep - it looks like they don't want to do any work without having some skin in the game from the buyer).

Based on the request and information from the agent (courtier), the notary will prepare the contract file. In lack of specific request or indicating specific agreement between the seller and the buyer which is submitted by the agent, the notary will prepare the "standard" contract, whatever that means.

When I asked her if different walk away clauses could be included (i.e. if financing fails, X% of the deposit is returned), she said that in principle clauses can be introduced, but this is rare and these have to be very reasonable and justifiable. She was not very encouraging at all regarding the financing clause and she noted that this would probably be met with resistance from the seller. And the assumption is that if I pay a deposit, I have my financing arranged and I am serious, and intend to close.

I gave her an example of getting into an accident and dying or loosing capacity to work, etc. and she pretty much said that then I would loose my deposit.

The conversation made me less comfortable and not more. I am wondering if she is just looking to keep things "standard" (i.e. simple) to streamline her work. Frankly, I feel a bit disappointed. This Notary was recommended by my bank as being very competent and efficient. Maybe I should have gone with the one recommended by the agent!?
Who is asking you to pay 10k?
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Old 18.01.2021, 17:42
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Re: What are the best practices with Notary contract when buying property?

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Who is asking you to pay 10k?
The Notary! This is not a function of the purchase price, but a fixed fee. It is just to get them started on the contract. It will be reduced from their final invoice.
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Old 18.01.2021, 18:06
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Re: What are the best practices with Notary contract when buying property?

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I just spoke with the Notary. The lady explained that I choose the notary (since I pay), but the agent needs to initiate the file opening and the start of her work by sending a request email with the information about the property, location, seller, etc.
Once she has all the information, they will open the file and send me an invoice for CHF 10k which I need to pay immediately to start the real contract work, which is deductible from their fees. (Seems steep - it looks like they don't want to do any work without having some skin in the game from the buyer).

Based on the request and information from the agent (courtier), the notary will prepare the contract file. In lack of specific request or indicating specific agreement between the seller and the buyer which is submitted by the agent, the notary will prepare the "standard" contract, whatever that means.

When I asked her if different walk away clauses could be included (i.e. if financing fails, X% of the deposit is returned), she said that in principle clauses can be introduced, but this is rare and these have to be very reasonable and justifiable. She was not very encouraging at all regarding the financing clause and she noted that this would probably be met with resistance from the seller. And the assumption is that if I pay a deposit, I have my financing arranged and I am serious, and intend to close.

I gave her an example of getting into an accident and dying or loosing capacity to work, etc. and she pretty much said that then I would loose my deposit.

The conversation made me less comfortable and not more. I am wondering if she is just looking to keep things "standard" (i.e. simple) to streamline her work. Frankly, I feel a bit disappointed. This Notary was recommended by my bank as being very competent and efficient. Maybe I should have gone with the one recommended by the agent!?
As I said above, get your financing sorted out first before you start paying people to draw up contracts etc. You don't need to spend money writing clauses on failed financing if you sort your financing out first.
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Old 18.01.2021, 18:09
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Re: What are the best practices with Notary contract when buying property?

I can't speak for VD specifically, but we didn't use a separate notary / lawyer at all in SG.

Initial agreement (Kaufzusage) was proposed by the seller, we made a few small changes, total size of the document two pages. Simple German, easy to understand - basically bullet points on who does what when and what the consequences would be.

The contract was provided by the land registry (Grundbuchamt), standard document with seven pages of which two were signature sheets.

In SG it is not mandatory to use a notary - the person from the Grundbuchamt confirms that both parties understand the contract and acts as notary.
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Old 18.01.2021, 18:13
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Re: What are the best practices with Notary contract when buying property?

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The Notary! This is not a function of the purchase price, but a fixed fee. It is just to get them started on the contract. It will be reduced from their final invoice.
I never heard of an advance of notary fees. Have you asked for a breakdown of costs? It should be a fixed % of the purchase price including taxes etc
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Old 18.01.2021, 18:15
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Re: What are the best practices with Notary contract when buying property?

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I can't speak for VD specifically, but we didn't use a separate notary / lawyer at all in SG.

Initial agreement (Kaufzusage) was proposed by the seller, we made a few small changes, total size of the document two pages. Simple German, easy to understand - basically bullet points on who does what when and what the consequences would be.

The contract was provided by the land registry (Grundbuchamt), standard document with seven pages of which two were signature sheets.

In SG it is not mandatory to use a notary - the person from the Grundbuchamt confirms that both parties understand the contract and acts as notary.
It is mandatory to go through a notary in Vaud.
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Old 18.01.2021, 19:39
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Re: What are the best practices with Notary contract when buying property?

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I never heard of an advance of notary fees. Have you asked for a breakdown of costs? It should be a fixed % of the purchase price including taxes etc
She pretty much told me that she will put together the first scope of work letter based on initial info and then I need to pay the 10k fee to advance to the contract. She did not even know what the purchase price is when she stated this amount, so it is definitely not a function of the purchase price.

On top of this, it looks like they might need about 2 weeks to prepare everything for signature, which according to the agent is longer than usual. The agent said that normally it takes 3-4 days. I am not too worried about the 10k prepayment, since we want to go forward with this, and I will have to pay it anyway. But the apparently longer than usual preparation and lack of responsiveness (had to chase them on the phone to be considered) are annoying. I will speak with the agent tomorrow and see if we should look for another Notary. It is ironic, but so far the agent has been very helpful and professional all along, even though his interest is more aligned with the seller. But of course, he wants to move on and close to get his commission.
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Old 18.01.2021, 19:49
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Re: What are the best practices with Notary contract when buying property?

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As I said above, get your financing sorted out first before you start paying people to draw up contracts etc. You don't need to spend money writing clauses on failed financing if you sort your financing out first.
Very good point. I have it sorted, sort of... The bank approved it, but I will get the details of their offer tomorrow. During the preparation of the financing, the bank has been referencing average market rates, so I hope there will be no surprises tomorrow. They have already said that they recommend indirect amortization via a cash 3rd pillar. This is definitely not the best potential return, but I would not speculate with this money anyway. So if it helps a bit with taxes is fine for me in return for a competitive interest rate.
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Old 18.01.2021, 20:04
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Re: What are the best practices with Notary contract when buying property?

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Initial agreement (Kaufzusage) was proposed by the seller, we made a few small changes, total size of the document two pages. Simple German, easy to understand - basically bullet points on who does what when and what the consequences would be.
If you make a pre-sale contract and it is not notarized it is actually unenforceable (only an issue if there is a dispute and disagreement).
See Code of Obligations for more details.

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In SG it is not mandatory to use a notary
Notarization for real estate contracts is mandatory in all of Switzerland.
Once again see the Code of Obligations.

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the person from the Grundbuchamt confirms that both parties understand the contract and acts as notary.
Which is a notary, but one specially for real estate matters only. In this regard canton SG is special as the normal notaries can not notarize real estate contracts.

Canton Vaud is one of the more expensive cantons when it comes to real estate transactions. It can cost several thousands https://www.preisueberwacher.admin.c...iatstarife.pdf However, I think 10k is rather expensive, are you sure the notary does not act as lawyer?

Also it is rather unusual that you would lose the whole deposit.
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Nevertheless, the interested party can usually demand the return of the deposit paid. In principle, the seller can only retain the costs for the effective efforts made in good faith.
https://www.notariate.zh.ch/deu/grun...svereinbarung/

But be aware, once the real sales contract has been signed and notarized there is no regular way to get out of it. At that point the financing must have been secured.
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