It was written on 1 June 2016. The law and practice in Spain change all the time. Our guides are updated as frequently as possible - typically every three years - but may be out of date.
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This guide explains the roles of Notaries in Spain and how to contact a Notary if required.
It describes, in particular, the role of a Notary in the area of Andalusia/Andalucía – which contains the Costa del Sol. See a map here. Please note that certain aspects of the law in Spain vary from one "autonomous community" (comunidad autónoma) to another.
Notaries play an important role within the Spanish legal system. This will be of no surprise if you come from a mainland European country but quite surprising if you're used only to systems in places such as the US and the UK: the so-called Anglo-Saxon legal system.
In Spain - as in most European countries - the profession of Notary is an independent profession. It is related to but independent of the general profession of lawyer.
Notaries are in the strange position of being independent professionals running their own business and generating their income from the fees they earn but, at the same time, being an essential part of the State administrative system.
Theirs is a public office and an office greatly respected. They are answerable to the State and a certain part of the State's power is delegated to them.
They start their training by taking a law degree and then continue not by going into practice as a lawyer but by taking further exams to qualify as a Notary. The exams focus on property law, inheritance law, certain aspects of company law and international aspects of the law - with particular reference to what documentation is required for particular purposes in various countries and what documentation from other countries is needed to carry out certain tasks in Spain.
Thus they are a far cry from the Notary in the US or some other countries, where Notaries may have no legal qualifications at all but exist only to witness the authenticity of signatures.
A Notary in Spain:
... has the obligation of giving advice, interpreting, drafting and authenticating public documents in accordance with the law in force and the will of all the parties involved
(Article 147 of the notarial regulations)
Notaries do not deal with court cases, nor do they give advice about criminal law or family law. However, due to recent law amendments, Notaries can now deal with marriages and divorces (when there are no children under the age of 18). This is done by mutual agreement, thus speeding up the process.
The most likely role in which you, as a foreigner, will find a Notary is when they're dealing with the purchase and sale of land and buildings. By law, all such sales must be finalised by a Notary.
The Notary will prepare the final contract of sale, transferring the ownership of the property to the buyer. It is the duty of the Notary to make sure that the contract reflects the wishes of the parties, complies with any obligations imposed by law, is understood by the parties and then signed by them in the Notary's presence. After the contract has been signed, your lawyer will ensure that the necessary fees and taxes are paid and that the document is registered in the Land Registry.
It is important to note that in Spain, unlike in some other countries such as France, the Notary is not responsible for making enquiries about the property; about whether it has the benefit of building licences or whether it is in good physical condition. These tasks are performed by the buyers' and sellers' lawyers, or the surveyors when any are appointed.
Because he is a public official and because the buyer and seller each have their own lawyer looking after the transaction, only one Notary is involved in any given case. Both the buyer and the seller are his clients. See our Guide to Buying Property on the Costa del Sol.
The Notary must witness the signature of documents creating a limited company. With the details and under the terms specified by your lawyer, the Notary officer will prepare the draft of the company creation deed, and company rules (estatutos). Then the Notary must identify the people signing this deed, ensure that they understand what they are signing and then witness the signature.
In some cases, the Notary will then deal with the registration of the new company in the Mercantile Registry. This is only for a specific type of company (which is called an express company), and in all other cases your lawyer will deal with registration at the Mercantile Registry.
In Spain, a Will must be made in front of a Notary in all cases.
The Notary may only be engaged to identify the person making the Will and then witness the signature; but in many cases he will also interview the person concerned, discuss his wishes and then prepare a Will giving effect to those wishes.
Once a Will is made the Notary will register it at the Wills Register.
When someone dies there are a number of tasks that the Notary will need to perform.
He will be approached by the heirs with a view either of giving effect to the dead person's will or - if there is no will - of distributing the dead person's possessions in accordance with the law.
This can often involve a number of the Notary's other tasks, such as transferring the ownership of real estate or dealing with shares in a company.
When dealing with an estate, the Notary will not only have to identify the people who are approaching him but he will also have to be satisfied that (either under the Will or by law) they are the people entitled to inherit the estate.
Once he has dealt with the estate, your lawyer will ensure that registration of the new owners' interests in any land or buildings they have inherited.
You can approach a Notary direct or you may be introduced to a Notary by your lawyer, accountant or adviser.
Whichever way you make contact with a Notary, his duties to you remain the same.
In order to find your nearest notary, you can do a research on the College of Notaries website.
When you need to approach a Notary there are various steps that will always be taken.
The first thing that will happen is that you will be asked to produce proof of your identity. For a foreigner, the identity is always proved by the passport. The Notary will scan your passport and keep that electronic copy on file. Unlike Notaries in some other countries, Spanish Notaries do not request proof of address.
This process of identification will normally be done by one of the Notary's assistants, but the Notary will check your passport anyway. If you go to the Notary ten times for ten different things, you will still have to show your valid passport. If you do not bring your original passport with you, you will be unable to sign any documents.
An assistant in the office will then usually establish your requirements. For example, if you're selling a property, what are the details of the property and what are the terms of the deal you have done? If you want to make a Will, what do you want to do with your assets?
It is only in very rare cases that you will see the Notary himself at this stage. If you do see him, it is usually because the assistant has identified something unusual or difficult about your case.
There will then follow a period during which the Notary's office review all the documents provided, normally by your lawyer (for example, copies of your title deeds or copies of a dead person's Will) and then prepares the draft of the document/s you need to sign.
Once this draft is ready, you will need to attend the Notary's office to sign the document in front of the Notary. You will need to show your passport again.
Usually the assistant will then go through the documents that have been prepared to make sure that they are correct and to make any alterations necessary.
If you do not speak Spanish, you will need to arrange for an interpreter to be present when the Notary reads the document to you. This is where you meet the Notary.
The Notary will, yet again, check your identity. It is the Notary's obligation by law, so this time your ID will be checked by the Notary personally.
The Notary is then required by law to read to you the document you are about to sign. This can often cause difficulties because the legal wording can make these documents very lengthy.
Once they have read the document the Notary will ask you to sign it in their presence.
Once you have signed the document, the Notary will produce an invoice that you must pay, either on the Notary appointment, or when you collect the documents. If you have appointed a lawyer, your lawyer normally takes care of this as part of the process. Usually, payment of the Notary fees will be required in cash or by bank transfer – before collecting the documents - or by credit card.
You will have been given an estimate of the Notary fees in advance. The estimate is usually pretty accurate. In fact, the bill usually comes out a little lower than the estimate. The fact you have this estimate, of course, allows you to gather together the money needed to pay the Notary.
The Notary will take copies of any documents that he needs and then return the originals to you.
He will then keep the original documents that he has prepared, together with all the copies of your documents that he has taken, as part of his official records known as his protocol and archive.
He will prepare copies of any documents that need to be registered and give them to you so you or your lawyer can deal with registration.
He will also prepare a copy of the documents he prepared for you and, in the case of a sale, the other party.
He will prepare additional copies if you ask him to do so but this will be at a modest additional cost.
It is almost impossible to give you any sensible guidance on this because they depend upon the type of document being prepared and how long it is. For example, the fee for preparing a document transferring the ownership of land will vary depending on the value of the land and the number of pages in the transfer.
Notaries in Spain are regulated by the College of Notaries.
Your complaint should be made to the College of Notaries, who will investigate it and give you a written response to it. See the complaints page on their website.
Have you had experience with Notaries in Spain? Tell us about it and share your story by emailing firstname.lastname@example.org.
Notaries are highly respected members of Spanish society. In terms of public confidence they are right up there with bishops and way ahead of ordinary lawyers, politicians and the like.
Notaries provide a strong security in terms of compliance with the law and safekeeping of all your important documents.
You will not be in Spain for long before you find that you need a Notary.
|Buying a Property on the Costa del Sol
This guide is mainly about buying a resale residential property in Spain in general and in the Costa del Sol in particular. It covers everything from finding a property to closing the deal and looks at the legal framework that operates when you buy a property in Spain.
|Inheritance on the Costa del Sol
This guide covers the rules in Spain concerning who inherits what when you die.
|Wills on the Costa del Sol
This guide is about how to make a will that will be valid for use in Spain.
|Powers of Attorney on the Costa del Sol
This guide is about how Powers of Attorney ("Powers") must be prepared for use in Spain.
|Notaries in Spain
Another brief guide, this one from Spanish Property Insight
|European Directory of Notaries
Find a Notary wherever you are in Europe (including on the Costa del Sol, of course!)
We hope you have found this guide useful. If you need any further help, please contact us.Manzanares Abogados S.L. 1 June 2016