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El blog de Maria

Your daily Spanish Law reporter. Have it with a cafe con leche. www.costaluzlawyers.es

Legal tip 1241. NEW! Court Decission on Liability of Notaries in a property purchase
05 December 2014 @ 14:53

 Barcelona Appeal Court has declared the liability of a Notary due to lack of information to the client of dangers involved to the transaction he was authorizing.

The statement is dated February 19, 2014 (appeal number 526/2012 and speaker Mrs. Sanahuja Buenaventura).

Buyer-plaintiff believed the property she was buying was fully paid. The notary, in breach of his obligations, allowed the plaintiff to pay the full price without applying any withholding to respond to the charge, and without warning her of the risk involved in such action; which was his obligation according to the Notaries Act.

The seller did not allocate money from the sale to pay off the loan and cancel the charge, so Foreclosure proceedings were started.

Therefore, the plaintiff filed an ordinary lawsuit against the seller requesting payment of the mortgage loan and the cancellation of the mortgage, obtaining a favorable Court decision which could not be enforced against the defendant as it became insolvent-

The plaintiff then claimed against the Notary for all damages caused by that negligence

The judgment of the AP Barcelona

Barcelona Appeal Court  declared the responsibility for the provision of services, as provided by a Notary as in this case, is regulated by art. 26 of Consumers Act: "The actions or omissions of those who produce, import, provide or provide products or services to consumers or users, determinants of damages to these, give rise to the responsibility of those, unless it is established or certified that statutory requirements have been duly fulfilled and any other care and diligence required by the nature of the product, service or activity.”

System applied by the Barcelona Appeal Court is a system of subjective responsibility or guilt, where burden of proof is reversed, so, it is the service provider who has to prove that he acted diligently.

Both Barcelona Appeal Court and Notary Association agree it is a very important breach as a Notary due to " insufficient performance" as it is stablished in provisions 147 and 194 of Notary Act.

"Sagrada familia" in Barcelona, Northeast Spain



Like 4




2 Comments


ads said:
06 December 2014 @ 16:57

Excellent news for those compromised by these lack of due diligences.
Does the notary also have similar responsibility for due diligence to ensure a legal LFO or habitation licence is made available at point of purchase?


mariadecastro said:
09 December 2014 @ 14:28

Ads:
There was no explicit legal obligation on Notaries to check on planning status till 2013.

But... considering the rol they play and Consumers Regulations, more if the Notary was chosen by the Bank/developer instead of buyer... I can see a case against Notaries in those sales with no FOL.


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