I am not going to make a great theoretical reflection on the right to choose a notary, but I do anticipate that what I am going to explain in these lines in a completely true case, which highlights the risks that can arise from the Notary who authorizes any type of document is not chosen by the person who is entitled to it, which, as I have repeated so many times in this blog, in the case of contracting with real estate companies and financial institutions, will always be the consumer.
We must go back to the year 2009 when a person close to me decided to buy a luxury house with two parking spaces from a real estate company well established in the city of Lleida and with interests in many other areas.
Since he did not have the cash to make the payment, but he was waiting for the sale of his house, he reached an agreement with the sellers, consisting of paying the parking spaces, the VAT on the entire purchase, and deferring the payment of the house price for two years, thinking that in that period he would sell his current property and with the amount he would settle the debt. As a guarantee, it was stipulated that failure to pay the price would imply the resolution of the sale, that is, the seller would recover the sold home.
And indeed, what nobody wanted happened, that the person close to me did not sell his home, and as a consequence of this he could not pay the price of the new home, so after a while the real estate seller told him that the entire operation had to be pulled back, as agreed, and they summon him to sign a deed at his notary, anticipating a draft.
Due to the confidence he has in me and in a meeting in which his son, a well-trained economist, was present, I tell him that the draft of the deed is not correct because the resolution on housing and parking spaces is being exercised, and not exclusively on the house, which was the right thing to do, since the parking spaces were paid for. She tells me that the person from the selling company does not understand that argument, and they threaten her that she has to sign that deed no matter what and under those conditions. For this reason, she goes to the Notary, where she is placed in a room with the two representatives of the real estate company, at which point the Notary appears and limits himself to saying, do you still not agree? It is not that he assumes any bad faith from the Notary, because surely he thought it was another operation of the usual ones of his client (the real estate company), that is, a sale in which some detail was being closed.
In the end, the person who surrounded me manages to convince the two representatives of the real estate company, and that the operation is signed as I had told him, which was the only possible one. The difference was that if this was not done, in addition to the house, he would lose 80,000 euros, which was the amount at which the two parking spaces had been valued.
Having said that, I am going to where I wanted to go from the beginning, which is the importance of choosing a notary. Well, from the foregoing it is first of all that the official who prepared the draft deed, based on the criteria of the real estate agency, did not analyze the state of encumbrances of the properties, since that proposed document was contrary to the registry information. In a very graphic way and so that it is understood, a resolution cannot be exercised due to non-existent charges, and as we have indicated, the parking spaces were not affected by the resolution condition. Secondly, the Notary was only aware of the matter, at the time of signing, at no previous moment did he perform any professional action, not even control over the work of his official.
It can be said that the person close to me did not have any problems in the end, which is true, but I do want to express to you the situation of nerves, exhaustion and uncertainties that we had to live through during the entire negotiation period, which lasted for more than a month, and that could have been avoided, if he had simply been allowed to go to a notary of his choice, who, without diminishing my impartiality, would have explained to both parties the consequences and scope of what was signed at the time, and proposed a legal solution.
I did not receive anything for all my efforts and actions, although yes, I was able to celebrate Christmas with a magnificent black leg, which a messenger left me one morning at my house.
I just want to end by saying that despite the fact that it is often said that it is the banks that prevent the free choice of Notary, as much or more than they are some notaries, whose main work is based on seeking complicity with banks and real estate, so that they take them their deeds to them, omitting the regulatory and deontological duties that should inspire their performance.
