The sentence of the Superior Court of Justice of Castilla León on February 19, 2015 resolves an issue, always controversial, which is the one referring to office unions, and thus confirming the resolution of the General Directorate of Registries and Notaries, which revoked a previous agreement of the Board of the Notarial College of Castilla León, which authorized a union of offices, says that "(...) the result of the union pursued is a notary transfer or succession by private agreement of the affected notaries, considering it reasonable according to which in a short period of twenty-one months, even less than the three years that the Notarial Regulation requires that they have elapsed to settle freely where another notary was, a new notary stays in the square where there were three previously, having shared offices and clients with them, which does not fit into our current legal system, where the Notary does not It is conceptualized as a company.
The sentence gives me enormous satisfaction because it fails in the sense that I had raised a few years ago in a very similar situation that occurred in the town where I develop my profession and that despite the fact that the General Directorate of Registries and Notaries (DGRN) did not agree with me, I believe that my appeal, despite the enormous personal cost that it entailed, and that made me withdraw from the lawsuit filed before the Superior Court of Justice of Catalonia, in the end has had some use.
With this entry, which unfortunately cannot be brief, I will try to illustrate what is underlying an apparently very technical issue, How are the unions of notarial offices, so that it can be understood by everyone, and I will use the case that I raised as an example, and that each one values the actions of all those who were involved in it.
The first thing we must point out is that it is a dispatch union. Well, simply, it is the situation in which two or more notaries carry out their work in the same office and whose regulation is established in the park article 42 of the Notarial Regulationwhat like general rule, does not allow a notary to establish himself in the same building where another notary has carried out his work, unless three years have elapsed since his dismissal or transfer or it is a population where there is a demarcated single Notary and as a special rule that in order for a union of offices to exist, it is necessary that there be an authorization from the Board of Directors of the Notarial Association, regarding which the DGRN has indicated that this authorization, although discretionary, has regulated elements, among them the general principles of the legal system legal.
Due to the fact that, as the ultimate purpose of article 42 of the Notarial Regulations is recognized, it is to avoid notary successions, transfer of clients or company succession, in principle the Boards of Directors cannot authorize office unions, when the obvious purpose of the Union is precisely to achieve the end contrary to legal principles, that is, the succession of the company.
In spite of this, the Boards of Directors of the Notarial Associations seem to be annoyed by the regulations, and they grant authorizations for offices with a degree of discretion, which in my opinion borders on arbitrariness and actions contrary to legal principles and regulations, and they do so by interpreting article 42 of the Notarial Regulations, not as a unit, but differentiating, on the one hand, the authorization to establish themselves in the same building where another notary has carried out his work, unless three years have elapsed since his cessation or transfer or in the case of a population where there is only one notary demarcated and on the other hand the authorization for a union of offices to exist.
The consequence of this is that through the authorization of the union of offices, the prohibition of establishment in the building where another notary has been established in the previous three years is mocked, causing a much more perverse effect, such as the transfer of notary, without interruption, and not from one notary to another but from several.
In the case resolved by the sentence that heads this entry, the following situation occurs: there are three notaries in the city of Valladolid, about to retire, and they request authorization from the Board of Directors so that another younger notary can join to develop their I work in the same office. In the period that elapses from the authorization of the union of offices, until the last of the three initially agreed notaries retires, a period of 21 months passes and the result is that the succession of the newly arrived notary to the other three takes place. , that very surely, maintained, computer systems, personnel, list of clients... and all those tangible and immaterial elements that make up a company.
As the notaries who filed the appeal said very well, that agreement authorization was in fraud of the law, and in a very humorous way "that the union was deserving of being in the Guinness Book of Records", since the circumstance occurred that the when the authorization was granted, the new notary had not taken office as a notary, and that the authorization should be conditional on the fact that in the event of termination of the agreement, none of the notaries who did not work on the premises, in the at the time of its granting, to avoid the succession of the company.
In the case that I raised in the city of Lleida, the mode of action was similar, but I will extend more, because obviously I know it better, and in it all the evils that have been afflicting Spanish society are revealed: corruption, eagerness of easy money, exclusion of merit and capacity as a means of social elevator, real estate hit, coming to worse fortune, private lenders... all seasoned with the particularities of the notarial profession, which gave rise to a case that I describe as "Lleida Connection”
I am going to analyze the situation since 2003, at which time three notaries from the city of Lleida decided to work together, opening a notary office in a location on calle Comercio number 40, which belonged to an investee company. by two of the notaries, called “COMERÇ 40, SL” Between the end of 2007 and the middle of 2008, the following events occurred: on December 28, 2007, one of the notaries retired; another of them obtains a place in another town, being appointed notary of the same on February 28, 2008; and a few days before, on February 13, 2008, the notary who was going to be left alone in the premises, granted a new notary the possibility of working together, but in exchange for something.
That something was the purchase of his part of the company to which the premises belonged (which had the premises as its only asset), at a certain price, and since the seller was going to request a transfer, the buyer would have sufficient returns to pay for it, since that their volume of work would be the equivalent of the three notaries, which separately had significant billing volumes. The premises were valued well above its market value, because it evidently included goodwill.
We see how all the dates add up, in mid-October 2008, a deed of change of administrators of that company is granted, becoming the new notary and ceasing to be the one who was going to leave. Anyone who has a certain habit with notarial documentation knows that these deeds are linked to a simultaneous purchase and sale of company shares. Finally, the notary who was selling took possession of his new position on November 13, 2008, thus consummating the transfer of notary, and a new notary in a position occupied by three. A couple of years later, at the beginning of 2010, the same notary who is left alone in the office, buys the other part of the company, remaining the sole administrator of it.
This notary, who was not the successor of any protocol (his position was newly created), authorized in the first year a volume of approximately 9,000 deeds, and a considerable number of policies, kept the staff, the captive clientele of the other notaries ( because in that place, respect for the free choice of notary was a chimera), the computer files (despite not being a successor in those protocols), ... that is, he was the successor of three notaries at the same time.
As a notary public, very affected by this action, I went to the Board of Directors of my notarial college denouncing the situation, providing few means of proof, but requesting that an investigation be opened to prove if the existence of a company transfer could be appreciated. , so that based on the result of that investigation, he adopted the corresponding resolution, so that if everything was proven it would be the revocation to act in that place and consequently he would have to open another office.
It must have been that the Board of Directors of my notarial college did not like my request very much and what they did was not to investigate in a reserved manner, but to make my request known to the other notaries in the square, who reported that there was no proven " consillium fraudis” among other niceties, absent from the slightest legal content.
Based on all of this, the Association issued a resolution on July 2, 2009, requiring the notary to whom we refer to individually identify his notary, omitting any reference, as soon as possible and at most within a month. to Notary Comerç 40 or Associated Notaries in any graphic medium of your notary. What was not accepted was my request that the notary leave his office because the Board of Directors considered his lack of objective competence to decide, since, according to what is said, he limits himself to understanding and resolving issues of disciplinary responsibility.
Not very agree, I went to the DGRN that on March 26, 2010 issues a resolution, forcing the Board of Directors of the College of Notaries of Catalonia to issue a resolution on the merits of the matter, because they have powers to do so. My perplexity that an administrative body does not know its powers is still capital.
In view of this resolution of the DGRN, the Board of Directors of the College of Notaries of Catalonia issues a new one that says "The agreement authorization granted by the Board of Directors in an agreement dated February 13, 2008 (main act), entails an intrinsic she, the authorization to occupy and settle in a certain professional office (secondary act that is a consequence of the first)”. In other words, the rules are interpreted in the sense that through the agreement purposes prohibited by the same rule can be achieved, and it does not even go into assessing whether there is a succession of a company or anything similar, which is the prohibited result, and the ultimate reason that should preside over its resolutions regarding office unions.
Given this resolution, I went back to the DGRN and issued a resolution on November 10, 2010, of technical content, because it indicates that the procedural channel was not correct, dismissing my request, but which meant a huge slap on the wrist for the Board of Directors of the Notarial Association, although all "obiter dictates", because it says:
a.- That the alleged fraud of law (which is based on the intention of the parties) is something that exceeds an appeal. To which I say, how can I get to prove that there is a fraud of the law, if who can do an investigation does not want to? It is as if a dead person appears in your house, you go to the police and the official tells you, or the dead person brings me or I don't believe it.
b.- That as the appellant Notary says, That is me, it is not possible to understand the difference that exists between a notary retiring or moving, and if the rules of the internal regime of the association have restrictions for office unions close to retirement age (they cannot give authorizations for unions of office notaries who are three years from retirement age) should be made some exception, in the case of authorizations of office unions in the case of the transfer of the oldest Notary.
c.- That the Board of Directors is warned that from now on, it should exercise extreme rigor in the consideration of the determining circumstances of the granting of the authorization to join offices as well as the consequences of their dismissal. That is to say, basically the appellant is absolutely right, but I cannot give it to him. If all was well, what warning was accurate?
Regarding the question that the procedural channel was not correct, the cause is that I did not directly challenge the agreement, and therefore it meant an acceptance of it. To which I would reply that communication of the request for an authorization from the office and its conditions should be mandatory, which was never done. I challenge when I see the consequences, that is to say, I do not make an untimely exercise of my rights, but rather the army when the fraud of the law is revealed, whose consequence should be the return to the initial situation because "quod nullum est, nullum effectum product”
I was defenseless and because my representatives did not fulfill, in my opinion, the duties assigned to them, I turned to other entities.
This is how I brought the matter to the attention of the Spanish Agency for Data Protection and the Catalan Competition Authority, since the presumption that there was a covert protocol circulating, among other information, and that it allowed a Notary to pose as the successor of other notaries was notable, as well as that an act of economic concentration had taken place, due to the acquisition of a market share of more than 30% of the volume of notarial documentation in Plaza de Lleida.
The AEPD answered me saying that it could not act, due to a presumption of innocence, but that it could file a claim with the College of Notaries, and once the corresponding resolution was handed down demonstrating what I was denouncing, it could notify the agency so that In your case, deduce the possible violation of data protection. Of course the road was closed because my own school did not want to know anything about it.
The Catalan Competition Authority answers me that it has no powers, since such actions correspond to the National Competition Commission.
Finally, I went to the Superior Court of Justice and withdrew from the contentious administrative appeal, due to the enormous personal cost that it caused me. I continued working, as honestly as I can, but in the long run, things went very badly for the great notary, to the point of considering that they might have done him a favor by revoking his authorization.
Someone could say that really, it would be necessary to prove if there really was a succession of the company, for my position to be justifiable. The fact is that time puts everyone in their place, and the most evident proof that there was a succession of a company is the statement of the successor notary himself, that his web page, to this day, has pearls such as the following:
“Since 1995, your trusted notary.” And it should be noted that in 1995, none of the notaries who carry out their work at that location were not even notaries.
Notaris associats”, has its origins in the union of the old Trade Brokers of the city of Lleida, and the successive incorporations of notaries, maintaining at all times the name, structure and professional team, highlighting the merger in the year 2013, with the Notary of Plaza Sant Joan 18. I believe that the reference to the merger cannot be more mercantile and allude to the purchase of a company and, on the other hand, the mandate of the first resolution of the Notarial Association of Catalonia, regarding the use of the denomination, continues to be breached.
Arrival on May twenty-first, two thousand and fifteen
