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Notary: his role in the purchase and sale process of a property

By Frédéric Frachon , June 10, 2022

When buying or selling a property, it is mandatory to have a notary to validate the change of ownership. In this article, you will find more information about her/his role and how to choose your notary depending on your situation.

In Switzerland, according to the article 216 of the Code of Obligations, the sale of a property can only be valid if it is certified by an authentic act. In other words, you must go before a notary to authenticate the sale contract as she/he is the only one authorized to do so. This deed must be signed by all parties, i.e. the buyer, the seller and the notary, in order to be valid. 

 

How to choose a notary ? 

Depending on the canton where the sale is taking place, situations may differ. It is customary for the buyer to choose the notary, but it is also possible that you have no choice, since this depends on the type of notary’s office in force. 

  • In the cantons of Zürich and Schaffhausen, a state notary’s office is in force. This means that the notaries are employed by the canton. Therefore, it is necessary to contact the appropriate department of the municipality or the canton in order to find the notary to carry out all the procedures. 
  • In the cantons of Aargau, Bern, Basel-Landschaft, Basel-City, Fribourg, Geneva, Neuchâtel, Jura, Ticino, Uri, Vaud and Valais, a liberal notary's office is applied. In other words, notaries practice independently while remaining under the supervision of the canton. In this case, the choice of the notary remains free. 
  • Finally, "mixed" forms of notarial practice are found in the cantons of Appenzell Innerrhoden, Appenzell Ausserrhoden, Glarus, Graubünden, Lucerne, Nidwalden, Obwalden, St. Gallen, Solothurn, Schwyz, Thurgau and Zug. In these cantons, the choice of the notary is also free, however, she/he will not be in charge of all the steps mentioned below. Your real estate agent will be able to inform you about the specificities of these cantons. 

With rare exceptions, it is mandatory to work with a notary practicing in the canton where the sale is taking place.

 

What is her/his role?

As for the choice of the notary, there are specificities according to the cantons. In all cases, several steps must be completed in order to certify the sale and register the change of ownership. Here are the steps in which the notary can operate. 

 

  • Drafting the deed

Once the notary has been chosen or appointed, it is imperative that she/he proceeds with the drafting of the contract. To do this, she/he must gather a certain amount of information concerning the buyer, the seller and the property sold. Depending on the type of notary's office, it is the notary's responsibility to gather all this information. Otherwise, in the case of the State notary's office in particular, it is up to the real estate agent in charge of the sale to centralize all the data and to submit the request for the draft to the notary. In addition to the purchase price, the deed must contain the rights and obligations of each of the parties, the terms of payment, any easements or even the land charges. Once finalized, the draft deed is sent by the notary to the seller and the buyer for review. As a neutral third party, the notary can advise both parties and answer all their questions. She/he can also help them find solutions if there are points of disagreement. Thus, she/he may have to modify the contract in order to take into account the remarks and wishes of both parties. 

 

  • The signing of the final deed 

As soon as an agreement has been reached on all the terms of the contract, an appointment at the notary's office is scheduled in order to sign the deed. Both buyer and seller must be present. The notary will carefully read the deed to both parties. She/he will then have it signed by all the parties, including himself, and then certify it.

Depending on the situation, several options can be considered:  

  • If the transfer of ownership can be operate at the same date, then full payment must be made on the day of the appointment and the keys will also be handed over to the buyer. This is called a direct sale. 
  • If the transfer of ownership cannot take place at the same date, then the payment and the handing over of the keys take place at a later date. This is called a forward sale. In this case, a deposit is usually paid. This option makes it possible to obtain an agreement from both parties while giving the seller time to find a new home, for example.

In all cases, the notary ensures that the buyer has the full amount of the funds or the amount of the deposit on the day of signing. 

 

  • Registration in the Land Register 

Once the deed is signed, it is imperative to proceed with the registration in the Land Register. Indeed, it is only at this precise moment that the buyer really becomes the new owner of the property. In the cantons where the liberal notary system is applied, the notary takes care of this task. In other cantons, it depends on the organization of the notary's office. Your local Neho agent will be able to provide you with information on this subject.

 

  • Establishing the mortgage note

If the buyer is financing the property with a mortgage, it is necessary to establish a mortgage note. In some cases, the existing mortgage note can be assigned free of charge or resold to the buyer. Whichever option you choose, it is up to the notary or the competent authority, depending on the type of notary, to proceed with the formalities. 

 

Have you completed all these steps? Congratulations, the transfer of ownership has been taken into account and your sale or purchase is now finalized. 

 

It is important to note that this whole procedure generates costs called "notary fees" which you will find detailed in our dedicated article. A potential tax on real estate gains may also be applied depending on the canton and the value of the property sold.


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