The notary
Who is the notary?
Buying a home and applying for a mortgage; donating one's home to one's child; setting up a company; or making a will. What are the risks in carrying out these operations? Can one be aware of all the obstacles and pitfalls caused by constantly evolving laws that are not always easy to understand?
Our legislature is aware of this and has taken care to protect the public by requiring the involvement of a notary, a public official who by law must be impartial and therefore protect the parties in equal measure, on whom the State also relies for the collection of taxes, for economically significant activities and operations. Because transacting a sale, a loan, a gift, an act of incorporation or making a will does not mean filling out a preprinted form, but rather preparing a secure, valid deed that is unassailable over time.
To fulfil this role, the State requires that a notary have expert legal knowledge guaranteed by the passing of an open competition run directly by the Ministry of Justice, and subjects the notary to ongoing inspections by state agencies.
Responsibilities of the notary
For his work the notary, as a public official, must adhere to strict rules laid down in the code of ethics and the law to ensure that:
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notarial deeds are in accordance with the will of the parties;
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notarial deeds are valid, meaning in compliance with the law;
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the legal effects of deeds are not affected by any encumbrances or rights of third parties (such as mortgages, foreclosures, easements, pre-emption, etc.) that the notary did not warn the parties about.
If the notary fails to perform his professional duties he is responsible under the law in several cases:
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civil: if he has caused damage to the parties through non-performance of his professional duties, the notary is obliged to make good the damage;
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criminal: if he has committed crimes;
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disciplinary: if he has violated the ethical standards of the profession, the notary must pay pecuniary fines or be suspended from the profession for a specified period of time or, in serious cases, he may be struck off.
In view of these responsibilities, notaries were the first profession in Italy to have set up, in 1999, compulsory insurance that by law covers every notary in the case of civil liability for error. There is also a guarantee fund for damages resulting from criminal offences.
By law, notaries are liable to continual State control: all deeds are subject to periodic inspection (every 4 months) by the Tax Department and the Ministry of Justice (every 2 years).
The District Notarial Councils also oversee the proper conduct of the notary. In case of irregularities, he is judged by a regional disciplinary commission, independent of the District Notarial Council and presided over by a senior magistrate. This ensures absolute impartiality in the decisions and cuts the ground from under any possible form of "in-house justice" among members of the same profession.
Il notaio mette solo una firma e legge alcuni fogli?
FALSO. L’intervento del notaio, la cui “lettura di alcuni fogli” e la cui firma non è che la conclusione di una serie di verifiche capillari e di indagini dirette ad assicurare il buon esito dell’acquisto, assicura che si compri da chi è effettivamente proprietario e che la casa sia esente da ipoteche.