The position at law of contracting parties, third-parties and the notary between the publication and the registration of notarial acts

Abstract

The registration of notarial acts serves several important functions particularly within the realm of real rights. Registration is a formal process by virtue of which an act - which for the purposes of this report, shall be the legal document conveying ownership of immovable property - is recorded through an elaborate record-keeping mechanism. The registration of notarial acts is a crucial process that enhances transparency and legal certainty, prevents disputes, safeguards property rights, and facilitates various transactions within the real-estate market. It provides a reliable foundation for property ownership and transfers, benefitting both the parties to the transaction and third parties. The Maltese legal system requires the registration of notarial acts in two separate registries, namely the Public Registry and the Land Registry (where applicable). AIMS AND OBJECTIVES: One of the main obligations of the Notary is to register the transfer of immovable property at the Public Registry and the Land Registry within fifteen working-days from the date of publication of the deed. This study intends to delve into the academic, legislative and practical aspects of the notarial profession within the area of registration of notarial acts, with the principal focus being on registration of deeds transferring immovable property and/or real rights thereon. The author will address the registration ‘gap’ - that is, the period of time between the publication of the deed transferring immovable property or real rights over such property, and its entry in the register. This professional report seeks to examine the circumstances which may arise during this fifteen-day time-period allocated for the registration of notarial acts in the registries, whether they may have detrimental effect on the contracting parties and on third-parties in good faith, and the responsibility of the receiving Notary. The study shall analyse the extent to which the laws currently in place for the registration of acts address satisfactorily the risks arising during the above-mentioned period for registration. The research methodology used to compile this term paper principally involved an examination of the relevant provisions of Maltese law pertaining to the registration of notarial acts. The laws related to registration are predominantly consolidated in the Notarial Profession and Notarial Archives Act (Chapter 55 of the Laws of Malta), however there are several other important pieces of legislation in this regard - such as the Civil Code (Chapter 16 of the Laws of Malta), the Public Registry Act (Chapter 56 of the Laws of Malta), and the Land Registration Act (Chapter 296 of the Laws of Malta). The main supporting sources to the law shall include: judicial interpretations and applications, government documents, and instruments of comparative and international law. A range of authoritative writings including journal articles, thesis and past professional reports, were also consulted as an integral part of this study. Chapter One of this study presents a historical overview of the registration of property transfers; a snapshot of the current system in place for the registration of notarial acts in the Public Registry and the Land Registry (where applicable), and the effects of such registration. Chapter Two then analyses circumstances which may potentially arise during the time-period allocated for the registration of notarial acts, and their effects on contracting parties, third-parties in good faith, and the Notary. The author will consider different scenarios in the context of relevant case-law and interpretations of the Court. As it stands today, and as will emerge from this study, the time-period allowed for registration may facilitate a scenario wherein the same property, or any real rights constituted thereon, is sold or transferred by the owner - the seller, to different buyers who do not represent the same interest. In this view, the author shall analyse the extent to which the parties to the contract, and third-parties, are protected or otherwise through the current time-frame stipulated for the registration of acts transferring immovable property in Maltese law. This Chapter will consider the relevant local jurisprudence. Although cases illustrating adverse circumstances precisely arising during the fifteen working-day period for registration, were found to be few and far in between, the case-law cited in this Chapter will be analysed to illustrate actual and potential outcomes which may occur during such period, and which include both accidental or negligent cases, and also instances of outright fraud. In Chapter Three the author will note the fragmentations currently present in our law and will point to the shortcomings of the hybrid system of registrations in two different registries. In this context, the ‘Central Registry Bill’ aimed at consolidating the separate pieces of legislation relating to the Public Registry and the Land Registry, and the suggestions and comments put forth during parliamentary sittings will be discussed. Finally, Chapter Four aims at proposing regulatory changes and amendments to the current system, with the aim of eliminating potential risks, by reducing as much as is possible the current timeframe available to the Notary for the registration of acts, in view of newer and improved levels of technology. In the Concluding Chapter the author will recap the main findings and results of this study and will provide an overall conclusion through personal observations based on the research conducted.