Notaries in Spain

Notaries in Spain

Professional activities

Notaries are considered a free profession but also fulfill a state function. They may not choose their clients in relation to their public function. Article 1 of the law of 1862 as amended states:

“The notary is the public official who is authorised to certify, according to the law, contracts and other extrajudicial acts. There will only be one class of these officials in the whole Kingdom.”

The Notarial regulations define the scope of the functions of the notary and are so clear that Article 1 is hereafter set out in full. According to the regulations of the organisation and rules of the body of notaries in Article 1:

“The Body of Notaries is constituted by all of the Notaries of Spain, with identical duties and rights and obligations that are determined by the laws and regulations.

The notaries are both professional men of Law and public officials, and the organisation of the Body of Notaries corresponds to this dual function.

As professionals of the Law they have the mission of giving legal counsel to those people who require their services and of advising them of the juridical means most appropriate for the attainment of the lawful objectives that the former wish to achieve.

As public officials they make public notarial attestation, which has and protects a double content:

  • In the sphere of facts, the preciseness of which the Notary sees, hears and perceives with his senses.
  • In the sphere of the Law, the authenticity and evidential force of statements of volition of the parties in the public deed drawn up according to the laws.

The Body of Notaries will enjoy full autonomy and independence in its operation, and in its hierarchical organisation it will depend directly on the Ministry of Justice and the Executive Direction of Registers and the Body of Notaries.

Without prejudice of this dependence, the regulations of the Body of Notaries will be considered decentralised, by means of Colleges of Notaries, governed by Boards of Directors with jurisdiction over the Notaries of their respective territory.

Each Notarial College will comprise the provinces assigned to the same, and will be divided into Districts, whose extent and boundaries will be determined by the National Demarcation.”

Reserved activities

The Notary is the civil servant with authority to give evidence (public faith), according to the laws, of contracts and other extra-judicial acts, (article 1, Notary Act).

As a civil servant he exercises notarial public faith, which has a twofold content:
In the sphere of the facts, the precision of what the Notary sees, hears or observes and feels.
And in the sphere of the Law, the authenticity and force of proof to declarations of will of the parties in the public instrument written according to the laws. (Article 1 NR, paragraphs 2 and 3).

The Notary is, in turn, an independent Legal Professional whose task is to assess, out of a neutral position towards all parties, those who request his services and to advise them the most suitable legal means to achieve the licit ends they propose reaching.

The Notary then is competent to act in and to document all kinds of facts, acts, contracts and, in general, all kinds of legal business, in the scope of private extra-judicial law (article 2 NR).

No other kind of civil servant can act so widely in this area.

Professional titles

Only titles that are directly related with the profession and are not incompatible with it are allowed.

Advertising/Publicity

The principals of professional ethics prohibit publicity to Notaries.

The Notary Regulations only allow two means of publicity, both in the interest of the public: Article 38 obliges the Notary who has recently taken up office to notify the authorities in his district, for their information and that of the public, of his availability to exercise the office. Article 71 grants the Notary studio the category and consideration of “public office”. This may be announced by showing an enamel plate with the emblem of the Notary Office, bordering it with the Name of the Notary, his surnames and place of residence.

Client confidentiality/Professional privileges

Notary protocols (archives of notarial documents) are secret (article 274. NR).

Clients’ money

The Notary only receives money from clients by way of payment of fees and financial cover to pay for the client’s obligations, for example taxes.

Fees

The remuneration of Notaries is ruled by the Notarial Tariff (Article 63 NR and Royal Decree 1426/1989, of 17 November). It differentiates two classes of documents:

  • Documents without quantity, for example powers of attorney, wills, marriage articles and, in general, documents that refer to facts or acts with no determinable economic value. A fixed tariff is applied for these.
  • Documents with quantity, when these are acts and contracts whose purpose or content has a specific or determinable value, for example donations, loans, corporate and mercantile operations. A tariff is applied to these proportional to the amount or value declared or fiscally verified of the act or contract.

Accounting

Professional insurance

Professional Insurance is compulsory for every Notary who wants to exercise his office to deposit a guaranty.

Specialist practitioners

Organisational Forms for Notaries

Organisation

Notaries work independently of each other, through their individual notary offices.

It is quite commonplace however to join up various offices located in a same building. To do so however permission is inexcusably needed from the respective Management Board of the College of Notaries, that will only grant this when the necessary conditions are present to ensure respect of the principle of free choice of Notary by the public, according to the circumstances of population and number of Notaries (article 42 NR).

In some cases, Notaries form General Partnerships. But these have potentiality exclusively in the tax field.

Territorial competence

Article 116 NR establishes a territorial competence per districts for Notaries, according to which Notaries do not have authority to attest documents outside their respective notary district.

When fixing the territorial scope of action of each Notary, the presence of the notary service is guaranteed in the entire national territory.

Incompatibilities

Exercise of Notary Office is incompatible with any office that holds dependent jurisdiction, with any public office where a wage or bonus is drawn from the general, provincial or municipal budgets, and with offices where it is mandatory to reside away from the regular domicile (article 16 Notary Law), Ley del Notariado, de 28 de mayo de 1862).

Inter- or Multidisciplinary Activities

Under no circumstances is the association of Notaries with other law professionals allowed, for example with lawyers, auditors or tax consultants.

Governing Bodies

Main institutions governing Notaries

In its hierarchical organisation, the Notary Office depends on the Directorate General for Registries and Notary Affairs, of the Ministry of Justice (article 307 NR). The Minister of Justice is the “Senior Notary of the Kingdom” (article 308 NR).

The Directorate General for Registries and Notary Affairs has the following duties, among others: to propose the regulations needed to observe the Law on Notary Affairs and Regulations or Orders for their enforcement; to settle consultations and doubts by the Governing Boards of the Notary Colleges or Notaries; to rule the appropriate Decisions in matters falling to its competence; to settle appeals against decisions by the Governing Boards contesting notary accounts; to exercise the registration, inspection and supervision of notary offices (article 313 NR).

In its decentralised corporate organisation, the Notary Office is made up of 16 Colleges of Notaries (Colegios Notariales) and the General Council of Notaries (Consejo General del Notariado), (articles 314 to 345 NR).

They are all Public Law Corporations, protected by the Law and recognised by the State, with legal personality and full capacity.

Each Notary will be a member of the College of Notaries belonging to the territory of the town where he has his residence.

Each College of Notaries includes the provinces assigned to it, divided up into Districts and holding jurisdiction over Notaries in its respective territory.

Each College of Notaries is governed by a Management Board that is made up of a Dean-President, a Secretary, a Treasurer and two to five members.

The General Council of Notaries is made up of the Deans-Presidents of all the Colleges of Notaries.

Bodies handling education / training and behaviour (ethic or disciplinary rules)

Among others, the duties of the Colleges of Notaries consist of organising common services and activities of interest to their members in the training, cultural, assistance, provision and other similar areas. It specially falls to them to supervise the discipline of the Notaries and to arrange their activity in respect of a correct attention to the public, discipline and professional ethics.

Through the Colleges of Notaries, a consistent training and updating work is carried out. Normally it is their respective Culture Commission what offers seminars, superior courses or cycles of conferences to the collegiates.

The most important duties of the General Council of Notaries are: to organise communication between the Colleges; to adopt the appropriate measures to unify the notary practice, to organise common activities and services of interest for the Notaries; to stimulate, protect and supervise the organisation and conservation of farchives; to organise training course of notary practice and to hold the defence and representation of the notary profession.

In the university area, the General Council of Notaries has signed agreements of collaboration with Universities to hold monographic or specialisation courses for professionals of Justice.

Other Issues

Mobility

Notaries are covered by the general Directives on mutual recognition of diplomas, unless they can show that their activities are exempt under the Treaty exceptions to free movement to be found in Articles 39 (4) or 45 EC. They have argued for this exemption (exercise of official authority) to be applied to them. This is unlikely to be accepted now however as the European Commission reportedly (Law Society Gazette) has recently decided (November 2000) that notaries are not to be considered as immune from the effects of the free movement articles of the Treaty. Member States that do not remove the nationality requirement will face Article 226 enforcement action.

Legal Education

Although the universities are guaranteed autonomy under the Constitution, this autonomy is within the framework of these basic laws. In Spain there are Autonomous Communities (e.g. Catalunya) which have devolved power in relation to university education. This devolution relates primarily to administrative and financial matters concerning the university, but not the curriculum. The autonomy of the universities in relation to their programmes of study primarily concerns the fine detail of the programme of study. That is to say within the framework established centrally each university can vary slightly what is taught. Their ability to do this is somewhat limited due to the large number of students. At the University of Barcelona for example, there are approximately 13,000 law students. At the Autonomous University of Barcelona there are a further 3,000 law students. At the University of Complutense in Madrid there are 26,000 law students. With these enormous number of students there must be team teaching for practical reasons, and this means that the lecturers must organise a common curriculum within the framework of each Faculty of Law.

The Spanish Law Degree comprises a minimum of five years of university studies in one of the 3 Law Faculties. The topics taught are laid down in a law of 1953 and include 25 subjects .

The degrees are primarily examined in a written mode. There are some oral exams and there is some limited possibility of submitting written work.

The grading is as follows:

4 and under FAIL
5-6 PASS
7-8 GOOD
8-9 EXCELLENT
10 HONOURS

Essential entry requirements

Article 6 of the Notarial Regulations (NR), (Reglamento Notarial, de 2 de junio de 1944), lists the conditions needed to become Notary:

  • be a Spanish citizen,
  • not be included in any of the cases of incapacity or impossibility to exercise the office of Notary and be Doctor or Graduate in Law.

An examination must also be passed, called “competitive examination for admission to Notary Office” (articles 8 to 21 of the NR) that requires a long and intensive training period.

The examination is made up of four exercises, the first two being oral and the third and fourth written. The first consists of verbally answering, in 60 minutes, four topics on Civil Law and on Tax Legislation. The second exercise, that lasts 45 minutes, consists of verbally answering six topics: two on Commercial Law, two on Mortgage Law and one from each subject on Notary, Procedural and Administrative Law. The third exercise is a composition, in a maximum time of six hours, with an opinion on a topic on Civil, Commercial, Mortgage or Notary Law. And the fourth exercise, is also a six-hour composition of a public deed, separately justifying the legal problems raised or resolved by the candidate.

Legal Training

Continuing Practice or Education Requirements and their Basic Functions: It is not compulsory to do practical training or continuing training programmes. For active Notaries however, the most important form of promotion is an examination called “competitive examinations between Notaries” (articles 97 to 108 NR) where the most suitable candidates obtain a certain personal seniority that allows them access to more important towns without having to follow the standard but slower procedure where exclusively seniority in the corps holds priority. This examination requires a continuous up-grading and training effort.

Relevant Legislation

Author: J Lonbay (A), 2008

Other Legal Professionals

Lawyers

Information about lawyers in the European countries is provided here.

Bailiffs

Information about bailiffs in the European countries is provided here.

Notaries in other European Countries

Resources

Notes

See Also

Further Reading

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