Liability of a Spanish Public Notary in the purchase of a property with embargos and charges. We always inform clients, readers and friends, that in Spain it is extremely important to hire the services of an expert lawyer, familiar with all of the buying process in Spain, when buying or selling a real estate property. As most people are aware, in Spain we have a notarial system and the completion of the purchase takes place before the public notary, so they assume he will check that everything is correct, and therefore there is no need to seek any other legal advice. Unfortunately, this is not the case. Spanish public notaries do not check, because it is not their obligation to do so. For example, it is not their obligation to determine whether the property has an occupation license, what is its urban situation, the existence of urban discipline or penalty proceedings, the existence of outstanding debts or obligations for the urbanization of the area, the wording of the private purchase contract and the commitments agreed by the parties, etc. Therefore, notary duty does not cover all aspects of the sale, it is limited to state on the Public Deed the agreements and information provided by the parties, to check the land registry registration status, cadastral situation, debts on local tax (IBI , etc.), and warn about the necessity of paying taxes, etc. Indeed, a recent court order from the Supreme Court of Spain confirmed a previous judgment against a notary for authorizing a sale of a property with a charge ( embargo), without informing the buyer properly, forcing the notary to compensate the purchaser for damages with 2,450,000 euros. The court understood that the land registry faxed the information of the existence of the embargo four days before the signature of the deed, and the notary must have received it, although the notary denied this. The court concluded that in any case, the fact and truth is that the communication and information between land registry and notary was inadequate and did not work, and the lack of knowledge of the notary about the existence of a charge, does not prevent him for being responsible for the damages caused, due to his negligence. All according to Article 146, of the known as the Notarial Regulation , which reads The Notary is civilly liable for damages caused by their actions when they are due to fraud, fault or inexcusable ignorance. The notary performs a very important role in the buying process, but do not substitute the role and work performed by a lawyer. If you have any problems before, during or after a purchase or sale of a property in Spain , our firm can help . White & Baos
Posted on: Wed, 23 Apr 2014 20:19:49 +0000
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