Notaries and junior notaries deal with matters of private law (also referred to as civil law). Private law involves legal relations between persons, i.e. natural persons (individuals) and legal persons. Private law as dealt with by notaries and junior notaries can also be divided into the following areas.
Property (real estate) law
The purchase and sale of immovable property (also known as real estate or real property) is a complex process. Banks will only agree to a mortgage once a person has become the actual owner of the house or flat. However, the seller will be willing to transfer title to the property concerned only if he is certain of getting his money. Furthermore, the purchase price of the property must be transferred from one bank to another without complications. The notary or junior notary is the hub of the entire process. He guides the seller and buyer and ensures that all agreements are formally recorded. This involves the following documents:
- contracts of sale and purchase setting out the terms agreed between the buyer and seller about price, date and any conditions subsequent; it should be noted that the seller and buyer can themselves draw up this contract or arrange for their estate agent (realtor) to do this.
- deeds of transfer/conveyance of title; the buyer, seller and notary sign the deed of transfer of title (the contents of the deed are taken from the contract of sale and purchase) at the notary’s office, after which the keys are handed over. However the buyer becomes entitled to call himself the owner of the property only when the deed of transfer of title has been entered in the land register and other public registers.
- mortgage deeds recording that a property serves as collateral for a mortgage provided by a bank.
In addition to the purchase and sale of immovable property, notaries and junior notaries also arrange foreclosure sales by public auction and make the formal arrangements for splitting ownership of a building (for example, where a house is divided up into a number of flats).
Law of persons and family law
Generally speaking, the role of notaries and junior notaries in these areas of the law relates to the following subjects:
- wills: in their will clients indicate who will inherit what on their death;
- guardianship: parents record who will be responsible for looking after their children if anything should happen to them;
- marriage contracts (prenuptial agreements) or life partnership conditions: couples who marry or conclude a registered partnership may agree that certain possessions (income, goods and capital) and debts should be kept separate;
- gifts: recording certain gifts in a notarial act can offer benefits for the donor and the obtainer, but it’s not compulsary.
- winding up estates: in the event of a death the notary or junior notary advises the heirs on the possibilities for accepting or refusing an inheritance; he also arranges for the capital and possessions of the deceased to be divided among the heirs in accordance with the will;
- it has also become possible recently for notaries and junior notaries to be involved in the arrangements for a divorce.
The task of notaries and junior notaries in this area of the law is to arrange for and advise on the incorporation of legal persons such as private and public companies and the establishment of cooperatives, associations and foundations as well as partnerships. Notaries and junior notaries play a role in:
- the amendment of articles of association;
- business succession and the merger, splitting and transfer of companies;
- trading in, cancelling and pledging shares and the issuing of depositary receipts for shares.