Beyond the minimum standards in the examination of title regulations

Abstract

The study conducted throughout the contents of this thesis is intended to serve as a complementary source of reference to the Examination of Title Regulations by identifying the risks to title and the enjoyment of immovable property that the notary public is to be on the lookout for following the necessitated compilation of the documentation in terms of the concept of due diligence envisaged in the Regulations. While some of these risks may be mitigated by the notary with reference to the law and jurisprudence, others extend beyond the diligence of the bonus paterfamilias, often necessitating (i) an examination of the factual circumstances in question, thus better suited to the assessment of the Court on a case-by-case basis; or (ii) the intervention of another independent professional. The manner in which these issues are adapted to dayto- day practice have been broadly segregated into risks affecting the ownership of the property; risks inherent to real and personal rights; issues arising in relation to the precise devolution of immovable property in matters of succession; and miscellaneous factors linked to the risks which may call the validity of the notarial act into question. The conclusions reached following this study associated the existence of these risks to specific areas which may be unanticipated by the law and the present Maltese legal system, ultimately relying on the warranty of peaceful possession granted by the transferor in favour of the transferee in a given transaction. The identification of these risks to the parties involved is nevertheless intended to assist the parties involved in a given transaction to make an informed decision, encouraging the notary public to fulfil his functions as a libero professionalista within the parameters of the Regulations in a transparent manner and to the best of his ability.