What is a notary?
The notary is an indispensable and fundamental figure in the buying or selling of a house in Spain. It is important to know the notary’s functions, responsibilities and rights before you embark on the purchase or sale of a home.
Notaries are public officers or civil servants who are required to provide legal security for their clients. In the same way, according to Spanish law, they can exercise this in any modality in which they are authorised. In fact, notaries derive their authority directly from the Directorate General for Registers and Notaries (DGRN) of the Spanish Ministry of Justice.
Regarding their functions, responsibilities and rights, notaries exercise public notarisation and grant the citizens with legal counsel related to all aspects of private law and write documents relating to legal acts and business with accuracy and according to their clients’ interests.
Much of notary business relates to notarial deeds relating to business transactions, and one of the most common operations is the buying and selling of houses, with or without a bank mortgage.
What a notary does?
Prior to the signature, the notary will always ask the parties for their DNI number (or NIE and passport in the case of foreigners in Spain) as well as all the original powers of attorney if they existed and all documents required by law that are necessary to carry out the notarial signature or the authorisation of notarial public instruments.
In the acts, the notary limits him or herself to the notarisation or legal documentation of all the facts that he/she perceives and as well as those facts which, without being perceived, can be proved. The notary can be labelled as an impassive professional who only applies the prevailing law, and who does not see nor examine the financial records regarding the economic situations of those involved in the transaction. In the same way, the notary does not deal with personal situations. He/she just reads the legal contract.
After the signature in the notary by both parties and the signature of the notary, these documents acquire probative value from that moment onwards, and their legality is presupposed.
In this document, all information related to the operation is gathered: Data from the participating parties, details regarding the object of the contract, method of payment, the guarantees acquired, etc. The original operational documents are attached to the deeds as certified copies by the same notary.
The notary will keep the original documents secret, providing copies that might be requested by the participating parties as needed.
Regarding the expense of notary services: The assessment services are always free and they are considered a duty of the notary to serve all the people that may request them, except for some exceptions defined under the law.
Notary service costs
Regarding notary service costs, we should make clear that although the notary’s bill can seem high, it is not much compared with the total expenses of most operations. For example, in the acquisition of a home, a buying and selling deed does not exceed 1% of the investment, in the case of a simple buying and selling transaction with no mortgage warranties, etc. However, the law allows for the signature of duties to defray all notarial activity. The notary must inform about his/her fees prior to serving these costs.
Regarding the choice of a notary public: The user has permission to choose the notary that will publicly notarise the operation, for example in the buying and selling of a home. In fact, in some occasions, the developer can even try to impose their notary but it is the final buyer who chooses which notary professional he or she will entrust with the notarisation.
In the case of a conflict of interest, the notary will be chosen by the party who must face the whole of notarial costs or the bulk of these expenses.
Notary public in Spain
In Spain, there are over three thousand notaries, in both big cities as well as smaller towns. There is a notary guide which permits people to check and verify the authenticity of any notary professional.
The signature of buying and selling home deeds of is a measure of the national economy, and its role deserves to be highlighted. There are also other operations in which notaries intervene: inheritance proceedings, granting of powers, mortgage loans and the creation of mercantile societies, a variety of legal agreements involving trade and change of property, protest bills of exchange, promissory notes or checks. Also, the new voluntary jurisdiction law on the books since July of 2015, allows the notaries to marry and divorce citizens.
By Massimo Filippa
Information given is offered for information purposes, excluding the company and the author from all responsibility, and does not constitute an official publication nor will it be legally binding. We always recommend checking with your lawyer or adviser.
Massimo Filippa
