The role of the Notary

In this article I have attempted to explain the role of the Spanish Notary. The Spanish legal system is very different from the UK system where the concept of ‘Public’ and ‘Private’ documents does not exist. I have overheard many British people saying ‘it’s all okay because we signed before a Notary’. Unfortunately this is not necessarily the case.

Becoming a Spanish Notary is without doubt one of the most difficult posts to attain. Many years of study are required and competition is intense. Their role varies according to the particular transaction and the documents to be signed. With regard to buying a property, no sale of property in Spain is valid without the presence of a Notary. The Escritura (Title Deeds) must be signed before the Notary in order that they can be registered at the Land Registry. The Notary’s role is to ensure the legality of the sale, to certify the presence of all the papers and identity of the people required by law to be present and ensure that property buyers or sellers who do not speak Spanish understand the nature of what they are signing.

Equally there are a number of other documents that must be signed before a Notary in order to be legally enforceable in Spain.  For example a power of attorney must be signed before a Notary, and the same applies to a Spanish Will. The formation of a limited company must also be signed before a Notary whose fee will in each case be fixed according to a set scale.

However, the Notary is not there to advise you and is not obliged to check the work performed by your own lawyer, adviser or agent.

To illustrate how the unwary can be caught out I have used the following example. Mr & Mrs Newcomer are buying a property in Javea from Mr & Mrs Sale for € 280,000 euros. Within days of the offer being accepted contracts are signed, 10% is paid to the vendors and completion before the Notary is arranged to take place in 21 days’ time. The Newcomer family are excited and take comfort from the misplaced belief that everything is being done officially and therefore without risk. Having signed the Escritura before the Notary the Newcomer family then discover that Mr Sale extended the property during 2003, and built a pool in the garden without having applied for a building licence for either project. The Town Hall subsequently become involved levying fines and insisting that part of the house be pulled down. Mr & Mrs Newcomer protest on the basis that everything was signed before a Notary. Unfortunately they then discover that the Escritura makes no reference to the pool or the extension, and they are now lumbered with the problem. I am sure many readers will know of people who find themselves in a similar situation.


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Information courtesy of Marc White LL.B. (English Solicitor) - Visit homepage

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