When concluding a contract, it is necessary to check what are the requirements for the formal side of the transaction. It is important to establish whether it applies to those agreements that necessarily require notarization. The fact is that in 2017 there were some innovations in this area (for example, the law on the features of real estate registration came into force). It should also be noted that notarization of the transaction is indicated not only by law, but also by the condition specified in the contract.
In what cases is it required? This is what will be discussed in this article.
Types of transactions with mandatory notarization
Notarization of transactions is mandatory if there are the following cases:
- A power of attorney to carry out transactions that require a notarial form, to dispose of the rights registered in state registers, to submit applications for state registration of transactions and rights must be certified, except for cases provided by law. A power of attorney issued as a trust must also be notarized. The rule on notarization of those powers of attorney that are issued as a reassurance by individuals does not apply to powers of attorney given as reassurance by legal entities, as well as by the heads of their representative offices and branches.
- Notarized pledge agreement. It can be concluded in the usual written form, which is provided, for example, in article 22, paragraph 2 of Law No. 14 “On limited liability companies”. It is indicated here that the contract of pledge of a share or its part in the authorized capital of a company must be certified. A pledge agreement to ensure fulfillment of obligations under an agreement that must be notarized is subject to a notarial certification.
- Assignment of the claim, which is based on the certification of the transaction in notarial or simple written form, must be made in the appropriate written form.
- Transfer of debt, to which, from a formal point of view, the rules established at the legislative level are applied.
- An annuity contract must be notarized, an agreement on the alienation of real estate for annuity payments must also receive state registration.
- A will must be in writing and certified by a notary. Compiling it in the usual written form may be allowed only in rare exceptional cases provided for by law.
- Consent of the spouse. In order for one of the spouses to be able to conclude a deal to dispose of such property for which state registration of rights is required, a transaction with a statutory notarial certificate or a transaction that is subject to state registration, a notary must obtain the consent of the second spouse.
- A prenuptial agreement must be concluded in writing and notarized.
- The alimony agreement is also in writing and must be notarized.
- Transactions alienating shares in the right of joint ownership of real estate, including the alienation by all participants of their own shares in one transaction, must be notarized, excluding transactions that are related to property that makes up the unit investment fund or is acquired for inclusion in it, transactions on the disposal of shares land for the acquisition and alienation of shares in joint ownership upon conclusion of an agreement providing for the transfer of property rights to a residential building as required by legislatively level.
- Transactions related to the disposal of real estate under guardianship, and transactions for its alienation, if the immovable property belongs to a minor or to someone who is recognized as having limited legal capacity, must also be notarized.
- A transaction with a focus on the alienation of a share or its part in the authorized public capital also falls under the notarization by compiling one document, which is signed by the parties.
- An investment partnership agreement, which includes a general activity policy (investment declaration), and all changes made to it, annexes, additional agreements, agreements on partial or full transfer by partners of their own duties and rights under this agreement, preliminary agreements on this should also notarize at the place of stay of the authorized manager of this partnership.
- The partnership management agreement, as well as any changes made to it, must be notarized and must be stored at the place of stay of the partnership with a notary, enter into force for those who participate in the agreement and third parties from the moment the certificate is received . The partnership management agreement, as well as any changes that are made to it, must also be registered with the state, and information about it and the provisions included in it does not fall into the unified state register of legal entities.
- A transaction aimed at alienating a share in a joint partner capital, including also an obligation to complete a transaction that is aimed at alienating a share in it when any obligations arise or when a second party fulfills a counter-obligation, must be executed in a notarized form. In general, a transaction on alienation of a share must have a notarial certificate as required.
Why might an agreement party need this certificate?
Notarization of an agreement by a notary may be required not only by state law, but also by parties to the agreement who have every right to fix such a condition. The possibility of including such a requirement in the text, which notarizes the transaction, is mandatory and is not determined by whether or not the document will need to be registered after that.
When the parties choose a notarized form of agreement, they get some advantages. In this case, the notary will describe to the parties to the contract its terms and conditions, as well as their duties and rights. In the presence of an imbalance of interests in him, he will certainly indicate this. In addition, notarization of the agreement allows you to get an additional guarantee against possible dispute. Upon confirmation by a notary of a fact, it will no longer be necessary to prove it at the court session.
When can a court not take into account a document from a notary?
An exception are situations where the authenticity of such a fact or document is refuted in the established manner. A notary, whose practice is private, bears absolute property liability in case of violation of the law during the performance of his actions and causing property damage due to this.
Slight nuance
However, when choosing a notarized form of agreement, there is also a negative side. In this case, the additional costs of both financial means and time are required. The fact is that before the certification is carried out, the duty of a specialist is to check the legal capacity of two parties to a transaction subject to notarization and the authority of their representatives. The participants themselves or representatives will have to visit the notary office in person.
What could be the consequences of a violation of mandatory notarization?
If at the legislative level or by agreement, notarization of the transaction is mandatory, then in this case it is impossible to violate the established form. In case of non-compliance, its contract becomes void. If one of the parties evades notarization of the transaction, the second has the right to obtain in court the recognition of such an agreement valid. In this case, the party, unreasonably avoiding the notarization of the agreement, must compensate the losses to its counterparty that have arisen due to the delay in processing their transaction. If the counterparty evades compliance with the prescribed form of concluding the contract and the second party wants to file a lawsuit, one should pay attention to the statute of limitations for this type of dispute.
In what cases notarization is required?
You must also know such situations in which notarization is not required. These include the following:
- selling an apartment jointly owned by a husband and wife;
- selling an apartment if it has only one owner.
What else can you not certify?
In addition to the cases listed above, from the list that falls under the mandatory notarial certificate, those transactions that are related to the property of the investment mutual fund or what is acquired by this investment mutual fund are excluded. At the legislative level, it is determined that this property is a joint property of all representatives of the mutual fund, while they are controlled by the Central Bank, and therefore do not need additional certification. It was canceled, because the once existing norm was inherently redundant.
The cost of notarial services
Notary services have a cost consisting of two components:
- state duty for actions performed by a notary;
- fees for technical and legal activities established by the notary chamber of a region in a centralized manner.
Finally
Notarial certification of the transaction gives great guarantees of protection of the rights of the parties in comparison with a simple written form. Notarization is a lifetime guarantee of the rights of the owner in the legal, domestic and financial sphere of life.