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What does a notary do?

Discussion in 'Bulgaria Property' started by Jain and Chris, Aug 28, 2007.

  1. Jain and Chris

    Jain and Chris Senior Member

    UK buyers are often confused as to what a notary does and how that differs from the work of a solicitor/lawyer. British purchasers are not familiar with the practices of a notary as they do not participate in conveyancing. However, in Bulgaria a notary has to be involved in the purchase/sale of real estate. I thought the following might help understand the differences between a solicitor and a notary.

    Since nearly everyone knows what a solicitor does for a client, it is useful to take a look at the notary’s duties that will help you understand why and when you need a notary.

    Both solicitors and notaries are lawyers holding a law degree. Following graduation, in order to become a solicitor a legal professional needs to pass a special exam and if successful, the latter joins the so-called “Attorneys’ College”. There is no limitation on the number of solicitors that can practice in Bulgaria or in a certain region. In order to become a notary, a legal professional needs to pass a special exam for notaries, and if successful, one joins the Notary Chamber. The number of notaries in Bulgaria and in the regions and towns is limited – therefore in order to become a notary, there must be a vacancy open in the respective region in which one wishes to work.

    The functions of notaries and solicitors differ significantly.

    One realises that, if hired to render a certain service, consultation or to conduct litigation, the solicitor’s function is to act in the client’s best interests. The solicitor works for and in favour of the client, provides a full range of services, offers different resolutions, sometimes negotiates or acts in another way on behalf of the client in protection of its rights.

    Notaries are seen as much more “independent” in their activity. Although they are also “hired” by clients, the substance of their functions is such that even when involved in a certain deal or a separate legal action, they remain a relatively independent party.

    The most substantial part of the notary’s job is to certify the relevant date on a document, the availability and the occurrence of certain facts, the will that was expressed by certain persons, the authenticity of someone’s signature - or in other words, to act as a trustworthy witness of important acts.

    Notaries are not supposed to act in your best interest, but mainly in the interest of the truth.

    When authorising a signature on a document, a notary has to be convinced that the signature belongs to the person stated in this document. When certifying the will of one or more persons, a notary has to be convinced that this is the free will of these persons and that they understand the consequences of their expressed will.

    When witnessing a sale of a real estate the notary must make sure to have examined and to have convinced himself that the seller is the owner and that there are no legal obstacles in order to execute the transaction. This is where the notary’s responsibility ends.

    He does not become a consultant, unlike a solicitor. The notary will consult his/her clients only as much as this is necessary for the client to understand the relevant procedure, which requires the witnessing by a notary and to accomplish such procedure in the proper manner. However, the notary is not obliged to advise a client, whether he/she is signing in his/her best interests or to provide consultation, whether there may have existed a better way of doing this. Of course, this does not mean that most notaries would stay silent and would not utter a word, if they realise that the client’s interests may be seriously damaged in spite of everything being legally correct and done as a consequence of free will. This is not their job, however. It is the solicitor’s job.

    One would say, why is a notary needed, if the latter would not act in the client’s best interests? Under Bulgarian law certain documents are held to be valid only if they are notarised, i.e. if the authenticity of the signature of their author is certified by a notary with a notary stamp and signature. Such documents for example are Powers of Attorney, the specimen of the Signature of a Director of a company which has to be submitted to the company file of the company in the Court Registry, most Declarations when they are presented before an authority by a third party on behalf of the declarer, etc.

    Some transactions are also held to be valid only, if they are executed in a notary form, that is, not by way of a simple written contract, but through preparation of a Notary Act (Deed), having a strict official form, signed and stamped by the notary. Such transactions are all deals involving real estates – purchase-sales, donations, exchanges, constitution of limited real property rights on real estates, etc. The legislator has provided for a mandatory notarisation in all cases affecting serious legal and contractual relations and therefore need more legal security and certainty. The providing of such security is assigned to notaries and that is why their functions are very important and, accordingly, their responsibility is very substantial. Thus, not only the contractual parties, but also every third party will be sure of the authenticity of a signature, a will, a sale-purchase, etc.

    In the cases of a sale-purchase the notary appears usually only at the end of the process, at the finalisation of the deal. At that time the notary prepares the Notary Act (deeds) and ascertains the parties, the property, subject to the deal, the ownership and the will of the parties. Bear in mind that the notary is obliged to make sure that the seller owns the property subject to sale, that the persons on behalf of whom the Notary Act is signed are the persons described in it, or in the case there are proxies, that the latter have valid representation power and that the will expressed in the Notary Deed matches the will of the parties.

    Although many notaries require it, the notary is not obliged to make sure that the property is free of encumbrances. The notary is not obliged to include declarations of the seller in this sense, the notary is not obliged to include penalties or other similar provisions protecting the parties’ rights.

    Generally, the notary is not acting on the side of any of the parties; he is independent and supervises the observation of the law. The Notary Act has several obligatory elements and as long as the notary has complied with such requirements, he has fulfilled his duties. That is why, even at this final phase of a transaction a buyer or a seller must not rely on the notary only, but be careful, read carefully, and if possible, use professional legal assistance.

    One can use a notary every time you want to authorise a date or a signature in a document and also, what is very important – when you want to deliver an important notice (for example for terminating a contract) to a third person, you can use a notary who certifies the date of delivery and the receiver, which may be used as solid proof in the court phase of a dispute.

    Best wishes
     
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