It's been more than a year since I published anything written by me on the blog, although I have to say that there are several things pending, which I hope little by little will come to light.
Today I have been vaccinated against COVID, and perhaps that is why I feel strong enough to be able to resume that vocation of telling things.
The pandemic and confinement, despite not having caused me any health problems, have been very hard. A significant increase in work and the impossibility of being able to count on all my staff until recently, has meant a tremendous effort for me to be able to move the office forward.
Despite the hardships, there have also been gratifying things, such as the suggestions of different people, that I continue writing (I never thought of stopping, but as I said before, I lacked quiet time to deal with the keyboard) or having won two appeals against two qualifications, one from the Escalona Property Registry and the other from the Madrid Mercantile Registry, which allow me to address the issues that title this entry: registry independence and legal certainty, although I will focus more on the second one.
The two aforementioned resolutions can be consulted here and here. Regarding the merits of both matters and the arguments given by the General Directorate, I refer to what the resolutions say, since it is not what I want to discuss in these lines.
THE ISSUES DISCUSSED.
The Resolution of July 16, 2020 deals with the suspension of a deed of inheritance partition, liquidated for taxes electronically from the notary, and presented for registration, which is not returned with the following qualification:
I.-In the documentation presented it is observed: There is no pronouncement of the Management Office of the competent Autonomous Community regarding the payment, the exemption or non-subjection of the same in the Tax on Patrimonial Transfers and Documented Legal Acts and/or the Tax on Inheritances and Donations. To accredit it, it is necessary to present the note justifying the payment, exemption or non-subordination of the same and the letter of payment (duly sealed), documents that must be issued by the Management Office of the competent Autonomous Community.
I have never understood the subject of "properly sealed" because except for the fact that it refers to an ink stamp, I don't really know what it means. This "type" qualification was being recurring in any document presented in the Escalona Property Registry.
Until then, when one of these qualifications came to us (and I have to say that they were all the deeds that we sent to the Escalona Property Registry) it forced us to present the same document on paper, as already settled, normally in the dependencies of the General Directorate of Taxes of the Community of Madrid, and resubmit it via courier to the Property Registry.
In other words, it was prevented or made difficult, which is a comprehensive telematic management.
It seems that the ink stamp removed all doubts from the registrar about whether the corresponding tax had been paid, without caring about the loss of time and money, mine and the people who tried to register something in the Escalona Property Registry, that's not your record.
The first thing I raised as the basis for the appeal is that "The Escalona Property Registrar is the only one in all of Spain, and having said this from my daily experience, who systematically puts this defect in any deed whose taxes have been settled via electronic means, whether they are inheritances and donations or good of patrimonial transmissions and documented legal acts”.
I ask out loud Can the independence of the registrar support positions that are not supported by any other registrar in Spain? You can imagine my answer.
The Resolution of April 26, 2021, in essence, deals to some extent with the same thing, that is, how far the independence of the Registrar can go in its qualification work.
This resolution addresses two issues:
1.- One, the one related to the compatibility of the administrator's remuneration with an ordinary employment relationship.
2.. And another, the one related to the accreditation of the monetary contributions in the articles of incorporation of the company and of the capital increase, since lately the banks, or at least some of them issue the certifications, which are a printed copy of the certificate generated in digital format electronically signed.
In any case, the starting point of the resource and that does not include the text of the BOE is the following:
(...) FIRST.- In advance, it should be noted that, with respect to the two defects alleged by the Registrar, none of them is usually rejected by their own colleagues at the Madrid Mercantile Registry.
Thus the statutory clause that makes it impossible to register the deed, literally says so.
"The position of Administrator will be free, without prejudice to the payment that may be made as fees or salaries that could be accredited before the company, due to the provision of professional services or employment relationship, as the case may be."
Well, the existence of this clause, as literally stated, and according to the authorizing notary's own experience, has not generated any problem for the registration of the corresponding deeds that contained it, for the Mercantile Registrars of Madrid, (. .) with the sole exception of Mr. (...), who on one occasion maintained a different criteria, but admitted the partial registration, based on the request contained in the deed, which is not even enough for Mr. *.
And regarding the defect that says: "There is no record of who or who are the persons, proxies of the Bank, who issue the certification on behalf of the same, nor can the electronic signature be verified, since it is issued on paper. Articles 5, 6 and 58 of the Mercantile Registry Regulations.” It should be noted that other colleagues have not seen any obstacles to the accreditation, in the form that appears in the deeds, of the disbursements of social contributions. (…)
I ask again out loud Can the independence of the registrar support positions that are not supported by the other partners of the registry itself?. You can imagine my answer.
In any case, the current General Directorate of Legal Security and Public Faith does not seem to want to get too wet and simply says, in the second of the resolutions, regarding the issue of independence:
5. Regarding the allegations of the appellant regarding the fact that statutory clauses and similar deeds have been registered in the Mercantile Registry of Madrid, you must remember that, as this Directing Center has reiterated, the registrar, when carrying out the exercise of its qualifying competence of the documents presented for registration, is not bound by the qualifications carried out by other registrars or by the own ones resulting from the previous presentation of the same documentation or from the previous presentation of other titles, and this by application of the principle of independence in this exercise of its function, given that the greatest guarantee of accuracy in the application of the principle of legality must prevail for reasons of legal certainty (vid., for all, Resolutions of March 13 and May 8, 2012, 5 and March 11 and July 10, 2014, March 25, April 1, June 5 and 16, and September 7 and 17, 2015, November 2, 2016, September 13, 2017, and June 4, 2020, among many others).
This seems to me totally insufficient or at least not adjusted to cases such as those raised by the resolutions.
The independence of the registrar makes sense, especially in the case of Property Registries, which are one-person, since it may be perfectly possible and reasonable that there are obstacles that exist in one registry and not in another, since we are facing different realities.
In the same way, it is possible that a deed may be subject to registration in a commercial registry and not in another. Tract problems, for example, are different in each record, and the content of the entry may also be different.
In the qualification there is a legal interpretation that may be contrary to that maintained in the title presented. The authentic interpretation ultimately depends on the resolutions of the General Directorate (let me continue saying the Registries and Notaries) and the judgments of the courts of Justice.
But there are issues that are not of interpretation, such as the accreditation of facts, or in which the interpretation is consolidated, and in these cases independence cannot be used to treat the same things in a different way, converting the qualification into an exercise of the most pure arbitrariness, because as we will see later, it cannot be protected in an interpretation of the rules that is clearly unfounded.
Keep in mind that we are talking about people with high legal training, who should be required to be extra diligent.
This issue can become especially serious in the case of commercial registers, which are collective.
When a deed is presented in the Mercantile Registry, it is not done to a specific registrar, but rather they are assigned based on criteria, which have never been explained to me personally despite having repeatedly requested it.
What is not admissible is that the same deed may or may not be defective by pure chance, and from my experience, almost exclusively the deeds that corresponded to the registrar that motivated the resolution were classified as defective in the Mercantile Registry of Madrid. what we treat
DELIVERY SHIFTS
The necessary harmonization of legal certainty with the independence of the Registrar is dealt with in article 15 of the mercantile registry regulation, which tells us
Article 15. Registry with multiple owners.
1. If a Mercantile Registry is in charge of two or more Registrars, they will handle the dispatch of the documents in accordance with the agreement for the distribution of matters or sectors agreed upon.
The agreement and its subsequent modifications must be submitted to the General Directorate of Registries and Notaries for approval.
2. Whenever the Registrar to whom the qualification of a document corresponds appreciates defects that prevent carrying out the requested operation, it will inform the co-owner or co-owners of the same sector, to whom the documentation will be transferred. Whoever understands that the operation is appropriate, will practice it under their responsibility.
3. The Registrar who classifies a document will be aware of all the incidents that occur until the completion of the registration procedure.
In development of this precept we have the Instruction of February 12, 1999, of the General Directorate of Registries and Notaries, on the application of the provisions of article 15 of the Regulations of the Mercantile Registry, which can be consulted here.
BEFORE THE RESOLUTION. IS IT POSSIBLE TO CHALLENGE A REGISTRAR?
The first times that I had an unfavorable rating from this registrar, for "light" reasons or that did not convince me very much, I requested the substitute rating that fell to a Property Registrar, and who determined that the document was registrable, but that it was not registered. registered, because among the arguments that were given it was not fixed how the seat should be practiced.
It was later when I began the formula of article 15 RRM, requesting that the document be made known to the other holders of the registry, despite the fact that the aforementioned regulatory precept implies that it must be the registrar who appreciates defects who must put it. in the knowledge of the other holders of the record. But mysteriously, it all ended in a rating from the same registrar that reaffirmed its own rating.
In the specific case of the resolution that we are dealing with, before filing an appeal against the classification of the commercial registry, and considering that it was a matter of corporate interest, I tried to inform the Notarial Association of Madrid, but as you can imagine, I was not they listened.
As a consequence of this, I began to think about whether it would be possible to raise the challenge of a registrar in some way, when you know that it is a Free verse. Another example of peculiar qualifications would be that of the resolution of July 24, 2019, which you can consult here.
I tried to look for certain similarities with the causes of recusal of judges, but in the end the possible solution was given to me by the Instruction of February 12, 1999, whose fourth point says:
On the contrary, if the same matter is attributed to two or more Registrars by virtue of the agreement, or if there is a single sector, the presenter or any interested may request at any time from the Registrar to whom it corresponds to qualify that, if it notices defects that prevent carrying out the requested operation, it informs the other co-owners of the same sector, so that the person who understands that the operation is appropriate can carry it out under their responsibility.
In my understanding the fact that it can be request at any time of the Registrar who corresponds to qualify that, if he appreciates defects that prevent carrying out the requested operation, he informs the other co-owners of the same sector, so that he who understands that the operation is appropriate can carry out it under his responsibility, implies that it can be done preventively, this is in the registration application itself or in a separate document, which is attached to the title, and also that the request can be established, only in the event that the matter based on the agreement of the commercial registry, is attributed in the first place to a certain registrar.
HOW DID THE AFFAIRS END?
Regarding the Escalona matter, the deed was from February, the resolution was from July and published in the BOE on August 5, 2020. The registrar exhausted until the last day of the period to register, so it was at the end of August 2020, when we notified the interested parties so that they could collect their deed, and despite the fact that they had been informed at all times of the course of their file, we could not prevent their complaints from being addressed to the Notary, who had so diligently taken care of their interests .
Regarding the matter of the Mercantile Registry of Madrid, after two days of filing the appeal, I received a letter, by which I was notified of the total registration, and that as a consequence of this the appeal fell.
My surprise was great when I received the resolution by email in April, a few days later I received it by regular mail, and finally, once it was published in the BOE, I see that it has a certain impact, appearing as an outstanding document in the sic.notariado, and that is tweeted by frankseaman, and that generates certain comments of thanks, for resorting, because the resources have benefits for everyone.
LESSONS
The final text of the April 2021 resolution is totally devastating
"However, in the present case said request cannot be granted, since there are no circumstances that denote the existence of inexcusable ignorance of the registrar, although there is an interpretation of the applicable regulations that is clearly unfounded.”
You can say higher, but not clearer. Some people who learned of the resolution via twitter said: grades like this are worthy of a disciplinary record. This is not any legal certainty, they are other issues.
But above all it leaves two questions open:
1.- the reimbursement of expenses to the notary
2.- and the damages caused to individuals.
Regarding the first question, he says:
6.-Finally, regarding the request for the imposition of the costs of this appeal to the registrar, this Directing Center must be considered competent, taking into account the provisions of article 130 of the Mortgage Regulations, because, although in the present procedure before this General Directorate The intervention of a lawyer and solicitor is not mandatory and there are no fees, on the other hand, other expenses may be incurred (for example, costs of issuing copies or testimonies as well as any other disbursement that have their direct and immediate origin in the existence of this procedure ) which, once duly accredited, will have to be compensated (cfr., Resolutions of this General Directorate of March 13, 2008, July 24, 2019 and February 3, 2021).
However, I believe that he is stingy, since the damages to the Notary are much more than the costs of copies and testimonies. There is a reputational damage, which could be high, in addition to the loss of profit that the time to appeal implies.
And regarding the damages caused to individuals with an unfounded qualification, they can be very varied. For example, a delay in the companies that are constituted by capitalizing the unemployment benefit, and which, as I understand it, must justify the registration within a period of one month, could force the return of the amount received; the funds contributed to the society, many banks leave them unavailable until the registration is justified; the delay in a cancellation registration can cause withholdings in the sale price or loss of deposit….
I'm not talking about haste, just that an imaginative rating can cause very considerable damage and the cause more than legal in most cases is the lack of empathy of some with the needs of citizens.
In Leganés on June 2, 2021.
