The effects and consequences arising from late registration of notarial acts

Abstract

This Professional Report primarily intends to explore the academic, legislative and practical dimensions of the notarial profession within the area of late registrations of notarial acts. Although the principle focus concerns contracts of sale of immovable property, references to wills and other notarial deeds are also made. This report aims to tie up black letter law with notarial ethics, which together bind the notarial profession. Conceptually, the subject matter regarding the late registration of acts is intended to also capture the non-registration of deeds altogether. This paper seeks to look at the problem from different perspectives; that of the defaulting notary, that of the contracting parties and also from the angle of a second notary that finds himself stumbling upon the discovery. An extensive analysis of various pieces of Maltese legislation is undertaken, whilst a brief reference is also made to the Italian Civil Code for comparative reasons. This exercise intends to uncover the importance of setting up temporal limits and why the publicity and registration of notarial acts is of utmost importance within our legal system. The several implications resulting from untimely registration is then discussed. Additionally, a number of possible yet undesirable outcomes are examined. These include late registrations due to difficulties encountered when utilising online registration systems, genuinely accidental cases, negligent situations and also instances of outright fraud. Nevertheless, the negative consequences are far reaching and go beyond the contracting parties and the defaulting notary. They extend and directly impact the notarial profession as a whole through the eyes of public perception. For clarity however, the scope of this report is to illustrate the actual and potential effects of late registration and not to highlight the shortcomings and defaults of notaries. Notably, the sourcing of local jurisprudence, which precisely illustrates the implication to notaries in consequence of a delayed registration, whereby the vendor subsequently sells the same property again in bad faith to a second buyer, has unfortunately (or fortunately) been futile. For this reason, an analysis of related case law containing comparable elements has been made in order to identify the potential reasoning and logic of our courts in a contemporary situation. Furthermore, hypothetical circumstances have also been created where required, with the scope of debating potential outcomes and solutions. Finally, the writer goes on to respectfully criticise specific aspects of the current system and proceeds to make humble proposals for legislative improvements through the contribution of personal observations based on the research conducted.