Searches a notary conducts prior to the publication of a notarial deed

Abstract

The aim of this thesis is to examine what are the searches a Notary conducts prior to the publication of a notarial deed. For practicing notaries, law students willing to embark in the notarial profession and other persons interested in title over immovable property this subject is very important, but unfortunately, as in my case, one does not find enough material to delve into this subject enough to state if such an important task is a notarial duty or not. The lack of legal provisions, case law and literature related to this subject in the Maltese scenario directed me to examine Italian authors, who based themselves mainly on their judgements. Maltese judgements on prescription were of invaluable help to show the basis, and the time-span in which searches are made. Chapter 1 of this thesis examines the nature of the notarial duty to conduct searches, Italian and Common law on searches, and the duty to conduct searches in the light of the Nature of the Notarial Profession. Chapter 2 asks the question if searches are a new notarial responsibility. The responsibility arising out of Civil Law, the Notary-Client relationship and the Notarial responsibility towards Third Parties were also important aspects that were examined. These were followed by searches and mandate and the exercise of powers in such a contract. The instances when a Notary is exempted from searches were also examined. Chapter 3 focuses on searches on transfers at the Public Registry in the cases that a vendor acquired by an onerous or a gratuitous title and Chapter 4 focuses on searches on liabilities. Both these chapters deal with case-law related to prescription. Chapter 5 looks at other notarial legislation such as the Computerisation, Inspection and Searches at the Public Registry Regulations, the Land Registry Act and the Central Registry Bill.