On March 2012 the Various Laws (Registry and Notaries Archives) Amendment Bill which has introduced amendments as regards the notary’s profession and the Notarial Archives has obtained Parliament’s approval thus leading to the promulgation of Act No. XXIV of 2011 amending the Notarial Profession and Notarial Archives Act.
Under the new amendments, it is expressly laid down that notaries may act as mediators and as Commissioners for Oaths ex officio and that they are empowered to draft private writings containing agreements that purport to create legal rights and obligations between third parties and to examine title to immovable property.
In view of the recent amendments, estate agents or similar brokers and partners in a commercial partnership or directors or shareholders in a limited liability company whose principal service is estate agency may not practise as notaries.
The requirements preceding the obtainment of a warrant to practise the profession of a Notary Public in Malta have been further tightened, making it obligatory to first pursue the LL.D course which includes appropriate study-units in notarial studies and obtain a Doctorate of Laws from the University of Malta and to practise as a trainee for a continuous period of not less than two years at the office of a practising notary who has practised his profession in Malta for at least ten years.
The notary, before entering upon the exercise of his functions, must now inter alia submit to the Notarial Council proof that he has adequate insurance cover for professional liability. It is now the responsibility of every notary to be adequately insured against all risks of professional liability during the time he is exercising his profession. The professional liability insurance does not safeguard any Notary who is criminally liable for fraud.
The Notarial Profession and Notarial Archives Act now includes a provision stating that persons who falsely assume the designation of Notary or purport to be entitled to practise the profession of a Notary Public in Malta is guilty of an offence liable to a fine (multa) ranging from a minimum of one thousand euro (€1,000) up to a maximum of five thousand euro (€5,000). The new amendments have also increased the penalties subjected to notaries for late registration of notarial acts.
The new law reviews the acts which may not be published by a notary, increasing the list of acts which may not be published from four to ten. A notary may not publish a notarial act before the note appears on the Gazette and is liable to a fine (ammenda) of five hundred euro (€500) for each act so published. A notary may not publish acts of parties represented by an agent or other representative who is related to the notary or acts which involve a commercial partnership, civil partnership, foundation, association or trust the notary is a director, shareholder, partner, founder, associate or a member thereof or a trustee or determined or determinable beneficiary of the trust involved.
The Amending Act has also introduced a new Title devoted to Notarial Deposit Accounts which establishes in a nutshell that a notary must open an account with a local commercial bank to deposit all monies deposited with him and hold such money in the name of the persons entitled thereto. The funds held by the notary are deemed to be separate from the notary's own funds and the personal creditors of the notary may have no recourse against the money held in these accounts. The Notarial Council is to be informed of the opening and closing of Notarial Deposit Accounts.
Minor amendments have also been inserted as regards the identification of the parties one of which being that when an official document such as an identity card or passport cannot be produced by a party, the party’s identity may be ascertained by the testimony of two attestors who may also be the witnesses appearing on the act without the need of having attestors which are personally known to the notary.
The new law also reviews the reasons why a deed could be declared null. Under the new provision, for instance, a notarial act is not deemed to be null in the following instances which used to bring about nullity, on the other hand the act is deemed to be annullable:
- if the notary has not read the act to the appearers;
- if the notary has not explained the act to the appearers;
- if the notary has not read and explained the act to the appearers in the presence of the witnesses when their presence is legally required.
A new part has also been inserted in the Amending Act No. XXIV of 2011 in order to clarify the notary’s duties in relation to the examination of title however it has not yet come into force and is thus not yet part and parcel of the Notarial Profession and Notarial Archives Act. Under this new part a notary is empowered to compile documents to establish both the title to an immovable property and the causes of preference among creditors affecting such title. The notary has the right to interpret the compiled documents and give advice thereon. A notary who publishes a notarial act of transfer of ownership of immovable property or other real rights over such property is deemed to have been instructed by the transferee to examine its title. Regulations are to be promulgated under this new section in the future in order to regulate how the examination of title should be conducted, the diligence required and the notary’s relative responsibility.
In view of granting more protection to the public and ensuring that the trustworthiness which necessarily devolves on notaries ex officio is respected, the amendments further strengthen the supervisory positions of the Notarial Council and the Revision Court, leading possibly to the suspension of erring notaries. Revision of deeds by retired judges and lawyers will be facilitated as revision of notarial acts will not be solely restricted to the premises of the Notarial Archives.
In conjunction with the above mentioned amendments, an amendment has been introduced to the Civil Code in order to make the Director of Public Registry the only competent person to represent the Public Registry in any legal proceedings although he could delegate his judiciary representation to subordinates.
The new amendments are intended to bring the law up to date with the notaries’ current working environment and requirements and to ensure that this important public function is carried out in a decorous and respectable manner which is beneficial to the public.
