Luis Prados Ramos



The increasingly frequent internationalization of legal relationships may make it necessary to make a reliable notification to a person who does not have their residence or domicile in Spanish territory.

There are many examples that can be brought up but I will cite some of the ones that we have had to do at my Notary:

a.- The requirement for the creditor to accept a unilateral mortgage under article 141 of the mortgage law.

b.- The notifications that must be made to the trustees under article 426-39 of the Civil Code of Catalonia, so that the trustees can sell assets of the inheritance.

c.- The need to notify the revocation of a power of attorney.

In order to focus the matter correctly, we must point out that, within the different modalities of notarial documentation, there are the so-called minutes of notification and requirement minutes, regulated in articles 202 to 206 of the Notary Regulations, whose purpose is to transmit to a person information or a decision of the person requesting the notarial intervention, and those of requirement, in addition, to intimidate the person requested to adopt a certain conduct (article 202.1 of the Notarial Regulation).

The practice of these notifications can be done personally by the Notary or sending to the addressee the certificate, copy or letter by certified mail with notice of receipt, provided that a legal rule does not result otherwise.

In any case, it is essential that it be carried out by a territorially competent notary, so that the requested party can exercise their right of response.

When we are in the national territory, the configuration of the notary, with implementation everywhere, guarantees that any reliable notification that must be made can reach its addressee.

It is true that notaries can only act within a certain territorial area, but when it is necessary to make a notification outside of it, a copy of the request is sent to a territorially competent notary, without the need for the person who wants to make the notification to travel. notification to the place where it must be carried out, and this notary will be the one who makes the notification. All of this is greatly facilitated today by the computer tools that we have.

But how should the notification be made when the notified party resides abroad?

Well, in the event that the act of notification or requirement must be dispatched in a foreign country, the notarial warrant, the consular warrant, may be used if the country of destination authorizes the Spanish consular authorities, in the manner provided in the treaties. international, and in the case of countries of the European Union, through the procedure provided for in Regulation number 1393/2007 of the European Parliament and of the Council, of November 13, 2007, regarding the notification and transfer in the Member States of judicial documents and extrajudicial in civil and commercial matters, admitted by all the countries of the European Union, including Denmark, which in its article 16 establishes that "out-of-court documents may be transmitted for the purposes of notification or service in another Member State in accordance with the provisions of this Regulation.

That is, in the case of documents that must be notified within the European Union, there is the possibility that a copy of the request is sent to the authority, official or person who, in the country of destination, is competent to transmit extrajudicial documents.

In most European countries this authority, official or person are the notaries themselves, so that although it is a little more cumbersome due to the need to apostillise Spanish notarial documents, probably translate them and that they must be sent on paper, the action ends up being very similar to the one we have described with respect to the notifications that are made within the national territory.

I want to finish all this theoretical approach with an example of a practical application.

A few years ago, a Spanish company constituted a unilateral mortgage in favor of a company domiciled in the United Kingdom. The guaranteed loan was paid, but the mortgage remained hanging there in the Land Registry. In view of the query that was made to us as to how it could be cancelled, we explained to the gentlemen of the Spanish company, the requirement procedure provided for in the mortgage law, and that it was verified through a notification that had to be made at the company's registered office creditor, that is to say in the United Kingdom. All this has allowed us to deal with some London Notaries and gain important experience for other cases that may arise.

I end with a simple recommendation, which is an amendment to all that has been explained, and that is that when contracting with foreigners, it is highly advisable to establish an address for requests and notifications in Spain, precisely to avoid notifications abroad.

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