Notario Publico´s Job When Issued a Deed
This article has information purposes only. It is intended to help buyers and seller to understand the real estate purchase proccess, but nothing will substitute legal advice or professional consultation in your particular case.
First of all in the United States of Mexico the Notariado (notary´s function) is regulated by Ley del Notariado in every state. Notarios are appointed by the government.
We are going to refer only to Ley del Notariado in Michoacan, so for this article´s purpose I will refer to Ley del Notariado in Michoacan using only the word “law”.
Therefore the law defines a Notario as the law professional vested with public faith and legal authority, to record acts and attest documents to give them legal form according to law.
A Notario has to be a lawyer, among other requirements, with at least five years of practice, but once he/she is acting as Notario, prosecution or attorney activities are forbidden to him/her.
There are a lot of things to say about the Notario´s job but this article will refer only to the issue of an escritura (deed).
Notario is a neutral party in the transaction. In Mexico, Notario´s fee is usually a buyer´s expense, but this is negotiable between parties. Notario´s fee is also negotiable. It is a good practice to ask for a detailed list of closing costs (including recording fees and taxes) in two or three notarias, so you could decide which one to use.
Notarios are forbidden to hold money or documents representing money (like checks) referred to a transaction. They can´t be your escrow account. The only exception is for taxes money.
Notarios have the following obligations by law when they issue an escritura (deed):
1. – Explain to both parties the legal value and consequences of the event/act to be signed. Read the escritura aloud before sign it or let the parties read it by themselves. Make sure all parties understand the escritura in it’s entirely and agree to sign it. There will ALWAYS be some paragraphs stating this in ALL deeds issued by Notarios.
2. – Notarios have to issue an escritura in Spanish, write the place, date and hour and his/her whole name and number. Stated all declarations and documents submitted by parties. Relate at least the last escritura with Registro Publico numbers. Complete description of another Notario´s document if any. Write the deed clear and concise using clauses. Notario will precisely describe the property with measures and boundaries exactly as the last escritura unless there is a deed of measures rectification. Determine the valid law & rights renunciations by parties. Review and relate powers of attorney if any. Certifies, describes and added to the appendix all related documents. Write whole name, age, marital status, place of birth, nationality, occupation and whole address of parties, witnesses and interpreters if any.
3. – Ask for an interpreter to the party who does not speak/understand Spanish.
4. – When a document contains evident injustice to any of the parties, the Notario shall make the appropriate comments, but if parties insist, the Notario shall write that circumstance and go ahead to authorize and issue the document anyway.
5. – Keep records for 5 years and then send them to Archivo General de Notarias and Dirección del Registro Público de la Propiedad.
There is no obligation to perform title searches, inspections, review of liens, encumbrances or debts on the property. So it is buyer´s responsibility to have proper legal representation, or perform all these tasks by himself and submit the documents to Notario.
Notarios are responsible for infractions or misdemeanors. They are also liable when an escritura issued by them is declared invalid. This declaration has to be done by a court. Don´t you think it will be easier and wiser to get legal representation on time?
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