The notary is a holder of public office. Nevertheless he or she is not a civil servant, but works on a self-employed basis. The notary carries out the tasks assigned to him/her as an “entrepreneur fulfilling state functions” in his/her own name.
In contrast to the lawyer, the notary does not represent one party, but looks after the interests of all those involved independently and impartially. The notary is under an obligation towards everyone to maintain confidentiality.
Notaries are appointed by the Justice Administration Department. Anyone appointed a notary must have studied law successfully and completed several years of service as a trainee lawyer and passed the two (German) state law examinations. In Berlin there is the so-called “Anwaltsnotariat”. The only individuals who can be licensed to practice as a notary are those who have worked for at least five years as a lawyer. In practice most notaries have worked for 10 – 15 years as lawyers before they are licensed to become a notary. A further precondition for licensing as a notary is evidence of proof of the specific legal expertise required by notaries.
A notary always carries out notarisations only within his area of competence. Where the parties involved have their residence and where the subject matter of the legal transaction to be notarised – for example real estate that has been sold – is located is of secondary importance.
The notary has to instruct those involved on the legal consequences of the transaction and record their declarations in the written deed. Notarial documents are therefore automatically assumed to be correct and complete. Claims arising out of notarial deeds with submission to compulsory enforcement can be enforced without any further judicial proceedings.