Notary’s Role in Purchasing Property?

[editer]

I have been a member of the forum for a number of years and have benefited from the combined knowledge of other members. I hope someone can clear up an apparent contradiction for me.

One of the “prime directives” of the forum is to make sure that you have your own attorney when purchasing property. In fact, it’s been suggested that a buyer have two attorneys so that the second attorney can make sure that the first attorney is doing his job properly.

Imagine my confusion when I heard from another reliable source about the role of the notary in the transfer of property. According to the explanation, a notary is a lawyer with additional authority to handle transactions such as property transfers.

According to the source, which I consider highly reliable, the role of the notary is to ensure that both seller and buyer are treated fairly. Both parties should receive what they expect to get and the notary is obliged to see that this is what happens. In other words, the notary is more of a mediator for both sides than a adversary fighting for his client’s best interests.

Frankly, I would prefer the notary’s role as mediator, however this seems to contradict the need for hiring one or two attorneys. Can some forum member clarify this situation for me?

editer

[DavidCMurray]

The impression you’ve been given is certainly not the one I have. Attorneys are officers of the courts. Notaries, in Costa Rica, function as officers of the National Registry. Most attorneys are also Notaries.

A Notary’s main function is to authenticate legal documents . . . to verify that they are prepared properly, executed by parties who represent themselves honestly as to who they are, etc. They are not mediators of disputes or transactions.

Because an attorney typically represents only one party, it’s important that the other parties to any transaction be equally represented. An attorney may not legally misrepresent matters or otherwise break the law, but his or her first and only loyalty is to his or her own client. So you should not assume that the other guy’s attorney will tell you that you’re paying too much, that you’re assuming an undisclosed liability, that the property is not buildable, etc. Those are matters for YOUR OWN attorney to discover and disclose to you. And because they’re so momentous, you’ve read the advice to have a second attorney check the work of the first (both working for YOU).

[watchdog]

“Editor”, you essentially have the concept of the role of the Notary in property transactions in Costa Rica, correct. The legal system in Costa Rica is based upon the Civil or Napoleonic Law System, which exists in all of the Countries throughout Latin America, unlike the United States and Canada, where English Common Law prevails. In Costa Rica, a Notary is required to transfer the title to property registered in the National Registry, along with the certification of copies of documents and signatures. All Notaries are Lawyers, but not all Lawyers are Notaries. Notaries are required to complete a post-graduate degree in Notary and Registry Law, and must be a Lawyer and an active menber of the College of Lawyers for at least two years, prior to becoming a Notary. Lawyers and Notaries practicing in Costa Rica, are required to be licensed professionals with the Costa Rica College of Lawyers [Colegio de Abogados], and in the case of Notaries, admitted by the National Direction of Notaries [Direccion Nacional Notariado], and their credentials may be checked by name or incorporation number, via the Internet at: http://www.abogados.or.cr

Lawyers and Notaries in Costa Rica are held financially accountable for misrepresentation and/or negligence, and in addition, may be subject to disciplinary proceedings, for unethical or improper conduct. Legal fees charged by Lawyers and Notaries for real estate transactions, are based upon a tariff published by the College of Lawyers, and roughly translates to between 1% and 1.25% of the purchase price of the property. National Registry fees and Property Transfer Taxes are also payable to the Costa Rica Government, at the time of the completion of the real estate transaction. While a single Notary will normally prepare, attend on the execution of, and register the transfer deed on behalf of both a Buyer and a Seller, it is recommended that a Buyer retain an independent Lawyer from the Seller’s, to negotiate the terms of any real estate transaction on their behalf.

Note From Scott: ‘WatchDog’ is the username for my friend and attorney Richard (Rick) Philps who is a Canadian citizen, naturalized as a citizen of Costa Rica. Rick practiced law in Canada as a member of the Law Society of British Columbia, for fourteen years, prior to moving to Costa Rica in 1998. Mr. Philps the earned his Bachelor of Laws and Licensing Degrees (Civil Law), and a Post-Graduate Degree in Notary and Registry Law, from the Escuela Libre de Derecho University, in San Jose, is a member of the Costa Rica College of Lawyers, and has practiced law in Costa Rica for five years. Mr. Philps practices law in the areas of real estate and development, corporate, commercial, contract, and banking. To contact attorney Rick Philps and his associate attorney Roger Petersen, please use the Contact Form at the bottom of: https://www.welovecostarica.com/members/417.cfm

[editer]

Thanks to David and Rick. You’ve cleared up my confusion. I will of course, have my own lawyer(s) as I proceed with my relocation to Costa Rica. I tend to err on the side of caution, even if it costs a little extra cash. By the way, Rick, you spelled the word “Editor” correctly, but my forum name is “editer.”

Frank

[Author]

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