Notary Issue

Hi Madcarew,

Thinking through the sale/purchase process and don´t understand how the sellers can owe the notary money, unless their lawyer has failed to make payments on their behalf?  Were the sellers resident or non-resident?  Even if the notary won´t tell you the value of the outstanding bill, will they tell you - or your lawyer - what the amount is for?

Kind regards,

Kim

The lawyers have clearly made a mistake, but won't admit it. The notary refuses to tell us what the amount is or what it is for. The sellers have gone back to UK and are not interested.

The nub of the issue is about our deeds. Does the notary have the right to withold our deeds because of someone else's mistake?

That's why I asked whether the seller was resident or non-resident - if the latter, your lawyer (on your behalf) should have retained 3% of the sale proceeds to pay to the tax office, until such time that it's established that the vendor has no outstanding tax liability. The notary will highlight this at the completion meeting, but it's your lawyer's (your) responsibility to pay the retention to the tax office.  

The other liabilities could be Plus Valia (a tax on the increase in land value on which the property is built) and municipal taxes, such as IBI (Council Tax), but none of these are debts to the notary.  If your lawyer failed to settle them at the completion meeting, they become your liability, but that doesn't make sense if you say the notary refuses to discuss them with you - or is that what your lawyer is telling you?  If there are any issues that remain unsettled at the completion meeting, the notary can refuse to sign the deeds, so it doesn't make sense that the notary would refuse to release the deeds because of outstanding debts - they simply wouldn't have signed the deeds at the completion meeting.

If your own lawyer has made an error, you need a new lawyer.  If they are genuinely as unaware as you about the nature of the issue, why don't they speak to the vendor's lawyer?

Failing all else, you may have to make a personal visit to the notary to get to the bottom of it.  Don't go there "all guns blazing" - preferably make an appointment and, if necessary, take a translator; explain your confusion and ask for an explanation.

Good luck!

Kind regards,

Kim

Your remarks are useful, confirming what I understood the legal position to be. But here is the sequence of events which got us here.

We completed on 15 Dec, we moved in and the vendors went back to UK.

In May we asked our lawyers for our deeds, but they said the notary would not release them due to a debt owed by the vendors.

My solicitors have sent numerous emails and visited the notary twice, plus I have called the notary. The answer is always that dut to data protection they can only discuss the matter with the vendors or their solicitors.

I and my solicitors have spoken to and emailed the vendors solicitor. She says that the notary is going to send her the information - but after two weeks nothing.

So I think that the vendors solicitor wants payment from the vendors to sort this out, but they have done a disappearing act back in UK and cannot be contacted so she is dragging her feet hoping the problem will go away.

Meanwhile we are stuck in the middle.

Hi Madcarew,

I'm sorry, but none of this makes sense - no wonder you're finding all this so frustrating.

Before completion, the notary is required by law to request a "nota simple" to verify that the vendor has legal title and check for any outstanding encumbrances (mortgage, tax, bills, etc.) on the property.  If the notary had done this, they should have known whether there were any issues before the deed was signed - it's their job to ensure that all parties understand what they are signing for and that the transaction is legal.

Did you attend the completion meeting at the notary office and did you receive then, or from your lawyer since, a "copia simple" (an unsigned copy of the deed)?  The notary keeps the original, signed deeds, the "Escritura Pública" and records them in the notary's register - I assume that it's your authorised copy of the Escritura ("copia autorizada") which is being withheld?

Either the notary, or your lawyer, should have had the deed inscribed in the property register ("Registro de la Propriedad") and updated at the land registry ("Cadastre").  Do you know whether all these processes have been completed?  (You could also check the statement of account from your lawyers, as this will show whether you've been charged for these services.)

Perhaps you need to apply a little pressure that may elicit a response.  First, I'd check that both your lawyer and the vendor's lawyers are registered with the relevant Bar/Law Association (probably Alicante).  They should both have a practising number and it's usual for it to be printed on their letterhead.  Failing that, Spain's General Council of Lawyers ("Consejo General de la Abogacía Española"), has a website where you can look up any registered lawyer, using their name, to see the lawyer’s practising number, their regional Bar Association and contact details.  If they are registered, it's mandatory for them to have Professional Indemnity Insurance, which you could claim against for negligence or malpractice.  If either party's lawyer is registered, you may want to suggest that you will be submitting a formal complaint to their Bar Association if you don't receive a definitive response in, say, 10 days.

Good luck!

Kind regards, 

Kim

Hi Kim

Last message I promise.

You have been very helpful, and backed up my earlier efforts, I have already found the bar registration for the vendors solicitor from whence I suspect the problem originated.

I believe that all the legal processes took place. But could it be that the vendors solicitor has not paid the notary because she forgot to bill the vendors for it. So this is all about an outstanding invoice?

Regards Stuart 

Hi Stuart,

It depends on the arrangements agreed between the lawyers for settling the notary's fee.  Spanish law states that the seller is responsible for the fees associated with granting the deeds.  However, it also says that the buyer has to pay for the first and any subsequent copies; so, in practice, the respective lawyers typically agree how the fee will be split.  When we bought, it was split 50/50 between us and the vendor, and it's a line item on the completion account we received from our lawyer.  

Of course, while we paid everything for which we were responsible at the notary's office, we had no visibility of how and when the various fees and disbursements were paid, so I suppose it's possible that they weren't settled on the same day, even though we'd paid for them.  

If you can't see a line item for the notary's fee on your final account, your lawyer must be able to advise how/if they were apportioned and paid.  Of course, even if you were responsible for part of the fee and paid it, payment of the balance could still be outstanding from the vendor - their lawyer really needs to tell yours what the problem is and how they plan to resolve it.  So it's good news that the lawyer is registered and means that you can pursue the route I've already suggested.  Hopefully, just the mention of a formal complaint to their Bar Association will be sufficient to achieve the required response 😉

I look forward to hearing how you get on!

Kind regards,

Kim

I will let you know.

Yours etc.....