I take up the gauntlet that Justito the notary had thrown down, in the blog “notariabierta”, which can be consulted here, and that he had answered it on his personal blog, which can be consulted here.
I will not deny that this is a subject, this one of banking agencies and macro-notaries, which can be thorny and very susceptible to hurting sensibilities.
But the first thing I would like to point out is that I do not intend to claim any moral superiority over anyone, as was attributed to Justito and in general to all those who express their opinions on social networks, in one of the comments on his post. But I also don't see anything wrong with anyone who believes that there are bad practices, in any field, saying so, because hiding things doesn't get us anywhere.
What is management?
Getting down to business, we should describe what is called “management”. When we are in the notarial field, management is the process that follows the signing of a deed, which involves the fiscal liquidation of the taxes accrued, and its registration in the Property Registry, the Commercial Registry, or in some administrative registry, such as that of cooperatives…
It should be clear that not all writings are managed, and so I think that four blocks can be identified:
a.- Deeds that do not accrue taxes nor are registered in any public registry, as would be the case of wills or powers given by individuals.
b.- Deeds that accrue taxes, but are not registered in any public registry, as would be the case of a donation of money, or an inheritance in which the estate is made up only of money. In this case, the management is only fiscal.
c.- Deeds that do not accrue taxes, but are registered in a public registry, as would be the case of the appointment of an administrator, or the cancellation of a mortgage. In this case, the procedure only involves going to the corresponding Registry, at least in Catalonia in the case of documents not subject to taxes, which are registered in the commercial registry, and sometimes making a tax settlement of 0 euros.
d.- And finally, the deeds that accrue taxes and are registered in a public registry, as would be the case with the sale of homes or mortgage loans.
In the section indicated under letter a) there is no procedure after the deed, and therefore there is no management; in sections b) and c) the management is more reduced; and in the case of section d) the management can be more or less intense, depending on whether it includes only the fiscal aspect or also the procedures with the registry.
Management is not simply taking the deeds to the registry as many people tend to believe.
It involves technical work that involves:
a.- know the tax qualification of the act or acts contained in the deeds;
b.- correctly liquidate the tax forms (very simple in some cases and very complex in others);
c.- present the deeds to the liquidation offices with the complementary documentation, for example, justifying a tax bonus;
d.- collect them with justification of having met the tax requirements;
e.- submit it to the Property Registry;
f.- and know how to finely interpret the registrar's qualification, and if in all the literature they carry, there is something relevant, which should be taken into account to be corrected and above all the way to do it.
I say this last point because quite often people come to the Notary Office with a record rating that prevents their registration, consisting of “the will is missing. Article 14 LH”, and which can only be corrected by presenting the will that the gentleman has in the folder he keeps.
The provision of funds
Processing a document usually involves requesting money in advance to pay expenses, whether taxes or invoices from the registrars and the notary.
But I emphasize, the amount of the provision of funds is not the notary's fee, as unfortunately many people think..
As an anecdote, a few years ago a person came to the Notary in a very bad mood, complaining that we had charged him 12,000 euros for his mortgage. It is true that the settlement of the provision of funds made by the bank's agency caused some confusion, but we had to explain to him that of the 12,000 euros paid, only 400 euros were the notary's bill.
Telematic management
Many of the actions involved in managing a notarial document can be carried out electronically, through notarial platforms, or through those that the Autonomous Communities have enabled for the general public.
That said, it should be noted that it is a system, the telematic one, that does not work for all documents (it is not viable in inheritances), and it does not fully take hold when taxes of a certain amount are accrued, since it requires having funds to pay them almost on the same day of signing, in order to be able to send the settled deed to the registry.
There is an increasing demand for remote management in corporate matters, precisely because there are no taxes in many cases, such as the incorporation of companies, capital increases, acts without value, mergers, spin-offs... leaving capital reductions and company liquidations as acts clearly subject to tax when there are refunds to the shareholders.
¿Who is responsible for management?
There is no rule. But taking into account that the person most interested in complying with the tax requirements, in order to avoid penalties, and to have the additional guarantee of registration, is the acquirer of the right (the buyer, the heir, the creditor bank, etc.), it will be up to him to decide whether he carries out the management procedures himself or entrusts them to a third party, which may be the notary itself or a trusted manager or lawyer.
Notaries as managers of their own documentation.
Notaries can manage authorized documents in their offices, and in fact this is a well-established practice, especially in rural notaries. However, they are not obliged to take on the management of any document. If they decide to do so, they can do so through their own staff or they can turn to third parties to assist them in the task.
Personally, I like to manage the firm, not for the monetary aspect, but for the training aspect for the office staff. After working for several years, it is a great joy for me to know that my officers resolve many doubts, on how to organize the operations fiscally or on registry procedures, in a very satisfactory way, even for other professionals.
Bank management offices
When granting mortgage loans, banks acquire a right over real estate, which on the one hand accrues the Stamp Duty, and on the other hand must be registered in the Property Registry.
For the reasons we have pointed out above, banks are the ones who must decide who manages the documents by virtue of which they acquire rights, as well as the complementary documents for their registration. The clearest case is the sale with a mortgage; as the latter can only be registered by registering the sale, it is appropriate that both documents be managed.
However, banks can only require the management of documents by which they acquire rights, but not those by which rights are extinguished in their favor, as is the case of mortgage cancellations, or those by which they transfer rights, as is the case of sales of assets awarded by auction.
Despite this, and it being more than confirmed that this is a practice that is not in accordance with the law, they continue to try to find a way to manage the cancellation of their mortgages, through their agencies and certain notaries called macro-notaries, in notarial jargon.
For more information on this subject you can click here, either here. the number of questions raised on the subject being especially relevant.
The new functions of banking agencies
Banking agencies, which until a few years ago only performed the role of collecting deeds from notaries, paying taxes and submitting them to the registries, are currently expanding their work to provide a signing service to banks, replacing the traditional bank representatives.
I'm sure the banks have their reasons for doing so, but what actually happens is that the bank manager and the employee from the agency continue to come to the signing, so claiming reasons of efficiency seems a bit far-fetched to me.
Furthermore, there is often a difference of opinion between the employee of the agency and the branch manager on important aspects of the operation, such as the case of bank links to access the most advantageous interest rates, which causes a lot of confusion.
In Lleida on July 18, 2016.
