It is not so easy to meet a complaint against a notary as with similar claims against officials and other persons whose activities are socially significant. The law prescribes the procedure and procedure for filing a complaint.
Who is a notary public
A notary is a person who provides services to citizens for a fee. The law allows, if necessary, to assign notary duties to an official of the municipality. Their functions are performed by captains of naval vessels, chief medical officers of hospitals and chiefs of military units.
Those who do not work in public notaries or in the municipality are not considered to be representatives of government bodies or officials. Like lawyers, this is a community of individuals who perform specific functions unique to them. They have a special status; today a multi-level system of notary public insurance has been built.
If you do not take into account the whole range of activities of a notary public, which is very extensive, citizens encounter it mainly for two reasons:
- execution of transactions;
- drawing up wills and registration of inheritance rights;
- other actions in accordance with the law.
Control system
Where does the law allow a complaint against a notary? The activities of this person are controlled by the notarial chambers and bodies of the Ministry of Justice. They periodically conduct checks on the implementation of the rules of office work and the norms of current legislation. At the same time, departmental inspections do not replace the role of the court.
Citizens who believe that a notary or other person violates the law in the performance of professional functions has the right to complain to a court. The law does not provide for another form of control, allowing to cancel its decision or oblige to perform specific actions. A complaint against a notary is the only way to get something from him if there are legal grounds, if it is sent to a court. The court is the only body whose failure to comply with decisions leads to criminal liability.
If instead of a notary public official
The law allows, in the absence of a notary public, to involve one of the administration officials for the performance of his duties. The head of administration may deal with these issues.
The activities of such an official are regulated by special instructions and are supervised by local justice authorities. A case statement is lodged with the local department of the Ministry of Justice. If he is sent to the local notary chamber, she will not be engaged in it, but will be sent to the department of the ministry.
The situation is similar with complaints against other officials acting as notaries: commanders of military units, captains of ships, chief physicians of medical organizations.
Indirectly, this is confirmed by samples of complaints to the notary chamber against a notary public.
Grounds for complaint to the court
Procedural law gives two reasons to submit such a claim:
- improper performance of a notarial act;
- refusal to perform a notarial act.
Applications are sent in a special proceeding. Its peculiarity is the absence of third parties whose rights are affected by actions or refusal to act. For example, to issue a certificate of inheritance to the sole heir.
The legislation sets aside another mass of disputes that affect the rights of third parties. Here, normative acts oblige the parties to resolve a dispute among themselves in the course of action proceedings. A complaint about the actions of a notary is filed in the form of a lawsuit.For example, when one of the heirs is refused a certificate, because the other believes that the deadline for acceptance has been missed or there are other reasons to refuse succession.
The reason is that the actions of a notary affect individuals whose interests are opposite. There is a dispute between them about whether the applicant has a reason to receive an inheritance or not. The subject of the dispute is, first of all, property or intangible goods, and not the legality of the actions of a notary.
In a special proceeding, the subject of the proceedings is precisely the actions of a notary.
Misconduct
Notaries are subject to the code of ethics. In the document, morality is translated into legal norms and regulates the behavior of a notary public, interaction with clients.
For actions directly related to a violation of applicable law, you must complain to the court, and not to the local notary chamber.
If you write a complaint to a notary in court about violations of the rules of the code, it will not be accepted. The judge does not replace the chamber, and the complaint will be rejected.
At the same time, the application to the court may raise the issue of incorrect behavior (rude, disrespectful attitude, violation of notarial secrets, etc.). What then does the court do?
Having found out that the actions of the notary were really illegal, and there is a violation of the code of ethics, the judge decides issues within his competence, recommends contacting the chamber regarding other violations.
Serious violations are an occasion to send a private determination to the chamber for disciplinary action. The measures taken to the court are reported in a month. Due to the action of the court, a complaint against a notary to the notary chamber may not be needed.
Dispute about law
A judge, having allowed a complaint against a notary to be examined, may find out that in reality there is a dispute between citizens. Then he stops production. The applicant is explained that a lawsuit must be filed.
By the way, a legal dispute does not mean that the second heir or the second party to the agreement or another person does not really recognize the applicant’s authority or rights. The only question is the presence of another person in the legal relationship. A complaint against a notary remains a complaint in its essence.
Case study
The citizen accepted the inheritance, not addressing the notary with a statement six months after the death of the owner. After a long time, he decided to formalize his rights, the notary refused him.
Two options remain:
- to prove that the notary is wrong, and the evidence available to the heir is enough by filing a complaint;
- establish the fact of acceptance of the inheritance through the court;
- ask the court to establish the fact of acceptance and recognize the right to property, if there are other successors.
Thus, filing a complaint against a notary is not always the right decision.
Preparation of appeal to the court
All cases related to notaries are heard by district courts. They do not get to the world for two reasons:
- the price of the subject of the claim is above 50 thousand rubles;
- special proceedings involve proceedings in a district court.
Which court to apply to? In this case, the court serving the area of the organization. If we are talking about the captain of the vessel, then the location of the port of registry.
Application deadline
The applicant has 10 days to file a complaint against the notary to the court. The same applies to other bodies or persons performing its duties. If there is a dispute about the right, then the limitation period under the general rule is 3 years.
Missed time is not necessarily a dead end. If you confirm that the pass is connected with good reason, then the court will restore it and accept the case for proceedings. What is it about (illness, being on a long business trip, natural disasters, etc.).
In the case of a 10-day period, it is counted from the day it became known about the violation of the law. Formally, it may not be missed at all, despite the fact that the appealed action was committed many days ago.
The evidence is envelopes with seals, outgoing numbers on letters, etc. In order to not be returned from the court, you must immediately attach them, justifying that the deadline has not been missed.
By the way, a complaint about the actions of a notary to the notary chamber does not suspend the time allotted for appeal to the court.
Who is entitled to complain
A person whose rights have been affected by them or his representative is entitled to report violations.
In disputes about the right to property, for example, the parties to the dispute are its alleged owners and owner. A notary is not even involved as a third party. Evaluation of his actions is only one of the elements of the process.
How to prove a violation
The notary, refusing to perform any action, for example, to issue a certificate of inheritance, is obliged to issue a written refusal. No one tries to give failures and has to be persistent. If all else fails, you can try to write a complaint to the notary chamber.
A formal answer can serve as evidence that some action has taken place. The statement may refer to the fact that the notary public gave the explanation orally.
Other documents supporting the violation (powers of attorney, statements, testimony, etc.) will also be useful in court.
In disputes over property, expert examinations are still being conducted aimed at ascertaining the authenticity of wills, mental state, etc. It should be noted that only the testimonies of witnesses are insufficient. We need documents that can be evaluated.
Complaint scheme
Complaints are written in a single pattern.
- name of authority or court;
- name of applicant;
- information about the official or notary public against whose actions the complaint is submitted;
- statement of circumstances;
- description of violations;
- request to the court or body to which the complaint is filed.
State duty is paid in the amount of 300 rubles, as in other cases of special production. The original receipt must be attached to the application, otherwise the judge will refuse to consider it.
A list of documents related to the complaint is attached, date, signature of the sender, the representative needs to have a power of attorney. If he sends a complaint, then a copy of the power of attorney must be attached to the application.
A sample complaint against a notary public can be seen above; in total, two types of documents are offered:
- form or scheme;
- full complaint, it remains only to insert your data.
However, all situations, despite their similarity, have their own nuances, which must be taken into account.
What to ask the court
A complaint about the action of a notary is filed in two ways:
- recognize the act as unlawful;
- oblige to commit an action (to certify a specific contract between certain citizens).
If a dispute is present, such requirements are incorrect. The law, of course, gives the right to formulate claims as you like, but their incorrect choice will lead to the denial of the claim. The second time it is not filed. The lawsuit asks to recognize the right to property.
Things to remember
Notaries are considered one of the most trained lawyers. The system of preparation and admission to the post is strict, and random people are rarely found there. It is recognized that these people approach their work carefully and it is difficult to find mistakes in their work.
Do not rush to write a complaint to the notary chamber, you need to figure out how to proceed. Whether the law is really violated or the notary does everything right.
It is advisable to prepare an appeal to a court or other body with the help of a lawyer. He will help to figure out which way to go, how to make a complaint, what evidence will be needed.
Judicial practice has accumulated excessively few cases of complaints against notaries. Disputes arise more about transactions that have been certified by them.
Practice shows that it is difficult to collect evidence against notaries, and only cases that have a serious evidence base are passed in court.