Notaries in the Netherlands

Notaries in the Netherlands

NOTARISSEN

Notaries (notarissen) in the Netherlands have large practice of law as well as notarial functions (registration and creation of certain essential documents). In the world of legal professionals the notaris occupies a very special position. This appears firstly in the method of his appointment and secondly in the performance of his role.
Nomination

Although the notary acts entirely as a free professional, this is only possible after appointment by the authorities. The notary – like the judge – is appointed by the Crown for life, on the understanding that he is granted a discharge at the age of 65. The appointment for life is made because of the independence necessary for the performance of the duties of the notary.

Organisational Forms

The position of notary is a public appointment. There are limited posts available. Notaries must have liability insurance. The notaris can be self-employed or he can practice in association with other notaries and/or solicitors and/or tax consultants. He may cooperate with accountants or other non-juridical financial professions.

Professional activities

The notary is charged with balancing the interests of all parties in a legal matter. In the conveyance of real estate, for instance, the notary acts both for the buyer and the seller. He is bound to professional secrecy.

The notary is a legal expert in the fields of family law and the law of succession, corporate law and property law. He is also familiar with fiscal legislation and fiscal case law in so far as they relate to these branches of law. Furthermore, if necessary he may have to coordinate the activities of other legal experts. The notary doesn’t engage in litigation.

The notary also drafts agreements. These agreements will often be laid down in a formal document, either because the law requires this or at the request of the parties. This document, drawn up by a notary, is called a notarial deed. It provides certainty of date, signature of the parties and easy enforceability of their agreement. Moreover the notary is obliged to retain the original notarial deed and to issue certified copies at the request of the parties.

The law makes the notarial deed compulsory for a number of agreements and legal transactions. The most important of these are:

  • conveyance of real estate located in the Netherlands;
  • the creation and discharge of mortgages;
  • the incorporation and alteration of articles of a public limited liability company or corporation (N.V.) and of a private limited liability company or closed company (B.V.);
  • transfer of shares in not listed companies;
  • creation and alteration of articles of an association or foundation;
  • making or altering wills;
  • making or altering marriage settlements.

Besides these there are legal transactions and agreements that are often performed through a notary for practical reasons. Furthermore the notary acts as a consultant in the fields of law in the above mentioned subjects.

Author: J Lonbay (A), 2008

Other Activities

Reserved activities

Professional titles

Advertising/Publicity

Client confidentiality/Professional privileges

Clients’ money

Fees

Accounting

Professional insurance

Specialist practitioners

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

Higher education in the Netherlands is currently a two-trunk system consisting of higher education in the University sector, and vocational higher education. There are currently active debates and legislative proposals (published in 1988) to alter the funding basis of higher education, admission requirments and to grant more autonomy to it, including the abolition of central curricula guidelines and rules.

Article 2 of the Advocatenwet specifies the alternative types of Dutch law degree that are neccesary in order to apply to become an advocaat. Such a degree is sufficient provided that they have taken an examination in Dutch civil and commercial law, and criminal law, as well as in one of the following three subjects: Dutch constitutional law, administrative law or taxation law.

The law degree lasts for four years. It is not uncommon for it to take longer (but not more than six years). There are seven models of law degree available at Dutch Universities, according to the Academisch Statuut. After a common first year, and passing the propedeuse exam, the student must choose one of the seven models. Within each model there are a core of compulsory courses, together with optional topics.

The first model is the Dutch law (Studie Nederlands Recht) model. The intending advocate must ensure that he has taken this option. The second is the notarial option . The intending notary must choose this degree (emphasis on natorial law, family law, law of succession, business law, property law and tax law). The third option is fiscal law. Other courses are law-political science , law-governmental science, law-international, and finally Antillian law. The above types of law degree give rise to the title Meester in de Rechten (Mr). The final model is the so-called free course which gives rise to the degree of doctorandus (Drs).

If accepted by a supervisor, a degree-holding candidate may take a doctorate degree (Doctor of Legal scholarship). This too is an acceptable degree in terms of Article 2 of the Advocatenwet. The average time to complete this degree is four years.

Legal Training

The “Wet op het Notarisambt” (Wet not. ambt.) (Law on Notaries, 1842 as amended) sets out the relevant rules. The position of a notary is public and there are a limited number of positions available (approximately one thousand). The intending notary is thus usually a kandidaat-notaris for some considerable time.

An intending notary must:

  • Have been awarded the Dutch “notarial” law degree.
  • Have Dutch nationality.
  • Be between the ages of 25 and 65.
  • Stage as kandidaat-notaris (110 hours a year during six years, consisting of family law, succession law, inheritance law, real estate law, law regarding foundations and other legal entities).

Kandidaat-notarissen must undertake the Beroepsopleiding notariaat (professional training for notaries) which is spread over six years and organised by a foundation in which the KNB and the concerning dutch universities are represented. The courses, mainly given by notaries, end with a final examination. After this stage continuing education is obligatory for all (candidate) notaries. It consists of notarial juridical education as well as education on communication and management.

Governing Bodies

They are:

  • The Netherlands Order of Advocates (The Hague).
  • The Koninklijke Notariele Beroepsorganisatie (Den Haag).
  • Koninklijke Vereniging van Gerechtsdeurwaarders (Utrecht).

Relevant Legislation

Author: J Lonbay (A), 2008

Other Legal Professionals

Lawyers

The advocaat is the only one mentioned in the 1977 Legal Services Directive. Most advocaten are also procureur, the exercise of which profession is compatible with that of advocate. Information about lawyers in the European countries is provided here.

Bailiffs

The judicial officer is a public civil servant, appointedby the Crown, who has the care of supporting the execution of the judgment. The judicial officer is also an independent entrepreneur. 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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