Duties and responsibilities of notaries in deeds of sale : should these extend beyond the scope of a notarial act? (with a particular focus on tax, anti-money laundering, energy performance in buildings and land registry regulations)

Abstract

The aim of this paper is to identify the scope of deeds of transfer of immovable property to extrapolate the roles and responsibilities of the notary. This examination should aim towards determining whether the inclusion in a notarial deed of specific provisions at law under regulations implemented by national authorities and government departments are justified or not. Ultimately, the report should conclude whether the obligations imposed on notaries under specific regulations are justified or not and if not to suggest measures on how the situation can be improved without faltering on a national level. This study shall be limited to tax, energy performance and land registry regulations. It would be best to assess the objective of the report, qualitatively by adopting a subjective assessment as opposed to an objective assessment through quantitative analysis. The report shall gather information on the scope of the various regulations imposing obligations on notaries and notarial deeds. The assessment shall therefore focus on the gathering of information through: (i) the formulation of the legal texts both locally and compare these with that of other jurisdictions, where applicable; and (ii) comparing local and foreign practices analysed by this report in transfers of immovable property. According to Article 1363(1) of the Civil Code, Chapter 16 of the Laws of Malta (herein referred to as CAP 16) “The sale of immovable property shall be null if not made by a public deed.”, whereby a public deed is “an instrument drawn up or received, with the requisite formalities, by a notary or other public officer lawfully authorized to attribute public faith thereto.” (added emphasises). An instrument drawn up by a notary is referred to as a “notarial act” and the provisions of the requisite formalities of a notarial act are laid down in Articles 25 to 54 under Title I of Part III of the Notarial Profession and Notarial Archives Act, Chapter 55 of the Laws of Malta (herein referred to as CAP 55). Article 28 of CAP 55 lays down a list of the contents of a notarial act, which list seems to be an exhaustive list, as it stipulates that “Every notarial act must contain -” (added emphasises) rather than using the phrase “must include” which would otherwise suggest a non-exhaustive list. However, as to the validity of a notarial act one should also refer to Article 40 laid down in CAP 55 on null and annullable notarial acts. In this context, public deeds of transfer of immovable property drawn up by a notary are notarial acts and should therefore comply with the provisions laid down in CAP 55. However, there are various other obligations that one is to fulfil when transferring an immovable property, such as the provision of an Energy Performance Certificate pursuant to the Energy Performance Regulations (S.L. 513.01), anti-money laundering declarations, tax compliance including any authorisation that may be required from the Commissioner for Revenue, and so much more, of which no direct reference is made in Title I of Part III of CAP 55 or CAP 55 in itself. Most of these obligations emanate from daughter regulations enacted under other mother acts, which acts identify or even establish specific authorities and government departments for their implementation. Despite having such authorities and government departments responsible for the proper implementation of the act and subsequently its daughter regulations, the burden of the certain obligations laid down in the daughter acts were shifted onto Notaries by embodying them as a requirement that must be included in a notarial act of sale, by even ‘threatening’ the validity of a notarial act should any of the obligations mentioned in specific regulations not be met or included in the deed itself. In this context, it is imperative that the roles and responsibilities of Notaries and notarial acts be clearly identified and determined whether notarial acts should be used as catchment instruments towards the fulfilment of obligations imposed by other National and European regulations.