Gecko Towers
If you come from the UK the role of a Notary Public may be a little alien to you. Indeed you may never have visited the office of one in the UK, where they are not very frequent but have a particular role in the legalization and authentication of documents to be used in international trade, Court Cases and for Powers of Attorney to be used outside the UK.
In Spain their role as a Notary Public – which is that of a Public Official and an important part of the Spanish state – is key to the legal system. Their essential role is to ensure not only that the contract they are being asked to formally witness is entirely legal but also that the parties to it clearly understand their mutual observations under the agreement.
The Notary carries a vital role in the property purchase process as without the benefit of a Notary witnessed Deed of Sale it would be impossible to register your interest in a purchased property on the Land Registry that is in control of such records in the region where you are buying.
The Private Purchase Contract (“PPC”) you entered into at the Spanish equivalent of “Exchange” stage in the English process – when you paid a % deposit of the final purchase price – is given added legal weight when it is turned into a Public Deed by the Notary. This is done by the Notary signing his/her signature to it – often a rather complicated and floral sweep of the pen – at the Spanish equivalent of “Completion”. Here the final amount of the purchase price – due under the PPC – for the property is paid over to the seller together with associated purchase taxes.
If you are purchasing with a Mortgage, the Notary will call you to meet at least ten (10) working days clear of Completion (“a cooling off period”) to ensure that you fully understand the terms of the Mortgage Deed you are entering into. At Completion, the Notary will sign in witness of the Mortgage Deed making it a Public Deed that can then be added to the Land Registry as “notice to the World” that there is a Mortgage bearing your name that is registered by way of a legal charge against your property.
The Notary’s ancillary role, which has the interests of the Spanish Tax Office (“Hacienda”) at heart, is to ensure that the correct taxes are being levied as a result of the contract being entered into and that they are being paid by the correct party.
A visit to the Notary will also be required to turn a Will into a Testamentary Deed to be legalized with the original bearing yours and the Notary’s signature being sent for storage at the Madrid based Will’s Registry. The signing of a Power of Attorney will also require a visit to the Notary.
If you would like your Abogado to conduct many of the activities that you may be asked to attend to when purchasing a property in Spain a Power of Attorney can be entered into. This will effectively mean that your Abogado will represents you in Spain in your stead. Powers of Attorney may be specific in nature allowing your Abogado to attend to very defined activities, including the signing of Deeds, the raising of a Mortgage or similar. Conversely they may also be more General allowing your Abogado to attend to a broad range of matters in place of you.
If you have yet been to a meeting at the Notaries office in Marbella you are, in my experience, in for an interesting couple of hours.
The Notary’s offices differ greatly but they have one thing in common, Spanish officialdom loves pieces of paper and the walls of the offices are stacked floor to ceiling with neat files.
There are, at least, three distinct types of Notary’s offices. Firstly, there’s the cavernous building, often square in architecture, with many offices off a central core. Others are more intimate with glass walled offices and in open spaces many colleagues on pc keyboards. Finally, the last is a newer breed which are bright with airy spaces with clean lines of well furnished offices with glass tables dressed with curious artworks and artifacts.
You will be notified that you will need to be at the Notary’s office for say an 11.00 am meeting. Meetings tend to run over as pieces of paper that should be in place are often elsewhere on another desk and need to be located. Your Abogado will spend time ensuring that the administrative staff of the Notary have all they need and there may be a little delay before the event you have come for gets underway.
Once underway the Notary will enter and read aloud in Spanish the various pages that form the document you have gathered to sign. He/she will establish that all required are present and that Passports have been seen and photocopied. There is often somewhat of a surprise as although it is usually your Abogado’s job to act as translator, so you understand the Spanish text being signed, the Notary will often speak rather good English acquired over many years of dealing with English-speaking clients.
Even if the clients are not all English it is comforting to know in these post Brexit days where you have EU nationals of all member states gathered to complete a transaction the majority of discussion that is not conducted in Spanish will be held in English. Many of the Notary’s support staff will also speak very good English.
Most of the Dramatis Personae in the Notary’s office will be elegant in a kind of El Corte Ingles meets Ralph Lauren cool style. In the summer, the custom has evolved that few wear socks or, at least, plump for invisible “trainer” socks, inside black or brown Castellano moccasins. Many team members at the Notary’s office will also wear Rolexes, often older steel models, with the Notary sometimes trumping his/her colleagues with a Bi-colored or 18ct. Gold version.
The more Notary’s office meetings I attend the more I am impressed by the calm, if sometimes a little slow, efficiency of the system. There is far more importance to the Notary’s work than simply applying a flowing signature to important documents in an obligatory blue ink but the process seems to work very well. It is also a narrow view into a rather special world of Spain’s administration and its thoroughness is very well received.
Should you be interested in discussing the legal process involved in buying a property in the Marbella region, we would be delighted to assist you. Our multi-disciplinary team of bi-lingual, highly experienced and wholly independent Abogados and Asesores Fiscales are ready to help you.
Please call me, Mark FR Wilkins, during usual business hours on +34 600 343 917 or, if you prefer, or e-mail me at mark@roslegal.es
Please note that our posts are for general interest. There is no substitute for proper legal advice tailored to your specific circumstances as provided by a qualified Abogado who is experienced in the application of the Spanish Law.
Nothing contained in this article should be seen or taken as the writer or the publisher providing legal or financial advice.
© Mark FR Wilkins 2022. All rights reserved.