Although the popular perception nowadays is that the Notary is the person who examines title to a property and who decides whether the title is correct or otherwise this was not always the case, and is in point of fact not the case according to law, Bisazza explained.
“Up to 20 years ago the notary prepared the documentation, but it was the lawyer who decided as to the correctness of the search and took responsibility for the acquiring party. Since then it has become more customary for the lawyer to leave everything in the hands of the notary, and indeed lawyers are rarely present for the signing of contracts,” he added.
Both the law regulating the notarial profession and the Code of Organisation and Civil Procedure, however, are clear that Notaries are not responsible for the veracity of their searches. “In notarial law there is no indication that advice on title is a function a Notary performs nor is remuneration for ensuring title to be found in the tariff, and in the COCP the function of examining and giving advice on title to property applies to lawyers and the law itself lays down the tariff payable to a lawyer,” notary Bisazza told this newspaper.
“Notwitstanding the Notice excluding Notarial responsibility The Notarial Council is not a body that shirks responsibility,” Bisazza continued, “and we have had to make an examination of our conscience to see whether the time was ripe for us to officially take on the responsibilities of searches and advice on title.
“However, it has become apparent over the years that as more laws are promulgated inadequacies and pitfalls have increased and we have literally found ourselves walking on a minefield which, as things have become at present make it impossible for us to assume responsibility particularly where our advice on title is requested,” Notary Bisazza listed five different problems notaries face in the certification of title.
First: The retroactive procedure sanctioned by the Ecclesiastical Enities Properties Act 1992 giving the right to Government (but denying it the ordinary citizen) to register title to land at the land registry in non-registration areas and without the need of documentation. There are some 30,000 of these properties which the Joint Office has not yet registered for 13 years and which,- without documentation, in registration and non registration areas, is now registering profusively with retroactive effect from the 18th February 1992 giving title to the Government, and making it incumbent on the citizen to prove that his title acquired diligently with proper searches in most cases, is the correct one, a process which is a tortuous and lengthy affair.
Second: there are no formal indications of Government expropriated lands unlike hypothecs and transfers which are registered in the Public Registry. One only comes to know of an expropriation if one is lucky enough to find it in the local newspapers or the Government Gazzette.
Third: Requisitioned property still exists for non-decontroled premises. But there is no index of these to make a search easier. Another henious pitfall is that prescription does not run against Government.
Fourth: When conducting official services to title these are delivered to the notary 10 days old, and even if an unofficial check can be made by an online search even this is three days old. It is obvious that the notary cannot be held responsible for what may have happened in the intervening period.
To give an example of the intrinsic danger of advising on a title notary
Bisazza referred to the yet unresolved case relating to property at L-Ibragg, where private persons have acquired land which the government registered on the strength of the Ecclesiastical Entities law after a number of Notaries advised favourably on the title. This whole messy situation resulted in a constitutional case contesting the validity of certain sections of the Ecclesiastical Entities Properies Act.
Clearly Malta’s notaries are not prepared to take on added responsibility unless the necessary changes are made to the law particularly where the Citizen and the Government are on the same footing where title to property and registration are concerned.
Last, but not least, while it may be a common perception that notaries are well remunerated for their work, Bisazza did not restrain himself when asked by this newspaper whether the fees paid to notaries currently were adequate to cover the additional responsibility of giving advice over title.
“Our tariffs are disastrously ridiculous, compared to the situation in most of Europe,” Bisazza said, “we are paid on average 0.5 per cent of the contract price, but we have advised the government that if we are to take on these added responsibilities the tariffs would have to be increased to at least 1.25 per cent. Only in this way would notaries also be able to cover their added risk with insurance.”
Bisazza believes the law should be changed in such a way as to allow notaries to give advice with due diligence, but so far the Council’s requests have not been met.
“The Notarial Council has always approached the authorities in a constructive way, and expects the same from the authorities but unfortunately simple matters and fast yet fair remedies are taking too long to come into effect.”