Problematic Notaries or Notaries problems?
Author: Alena Pedchenko
Junior Legal Counsel of JSC Colares
Especially for Legal Newspaper, №38
More often in the media you can find information that the person in the evening goes to sleep the owner of the apartment, and the next morning wakes up homeless, in this case, without signing any documents on the alienation of real estate. It's amazing and realistic - about this kind of thought may arise. After all, real estate transactions are subject to mandatory certification by a Notary, which must be verified the person of the buyer and seller. Therefore, how, without the owner's knowledge, the alienation of the property does occur?
A person who has at least some opportunity to shed light on the situation is a Notary who has certified such agreement. Often it is in such situations that notaries make their hands and tell the same story: the buyer and owner of the apartment came; the latter provided the passport of a citizen of Ukraine; according to information from the public register it has established that this person is the owner. Everyone behaved naturally, and from the content of their actions it was clear that they are aware of what is happening buying and selling. Even the costs in the presence of a Notary transferred by the buyer!
Only such stories do not always work, as it often turns out that the so-called “owner” either died or is constantly on territories not controlled by Ukraine, and have not left since 2014, or even at the time of the transaction's approval, was in another state.
However, such cases are not limited to real estate transactions. The interaction of such “notaries” and sellers affects not only ordinary citizens, but also large companies.
Several events have recently been held involving agribusiness companies. During the negotiations on the purchase of products, which were carried out by contractors with strong business connections, and further exchange of documentation, including by means of e-mail, the terms, prices, volumes of production, terms of delivery, etc. were agreed upon. However, after fulfilling one of the contractual obligations of transferring funds, the other did not hurry to send products.
Given the long time of fruitful cooperation, the buyer did not adjust the shipment, waiting for some time and assumed that the products will be sent “from day to day”. Similarly, the seller also behaved, waiting for the transfer of funds to a bank account. Subsequently, it turned out that during the course of correspondence with electronic letters appeared “third party”, which conducted correspondence in parallel with the buyer and seller. Therefore, when a letter appeared on the change of the details of the party, namely the bank account, the buyer had no doubts about such changes. Moreover, the banking institution made a transfer of funds, and the details of the recipient and the account holder fully met the seller's company. It would seem like this is possible?! But with the right “Notary” dreams are realized.
So, during the pre-trial investigation, the Notary began to repeat the long-known mantra: “The head of the enterprise came, presented a passport; the photo was precisely the head, several times verified. I certified signatures on documents. I entered information to registries. He could not even think that he had certified the documents to the fraudsters, not the director of the enterprise!”
Thus, the cases of using forged passports are increasing and spreading not only to dubious real estate transactions, but also to agricultural producers, and the “right Notaries” do not notice anything.
Taking into account that Notaries of the specified category do not notice forgery of documents, certify agreements with the deceased or citizens who are not physically located on the territory of Ukraine, it is expedient to create a register of documents certifying a person, for example, passports of citizens of Ukraine with photos of their owners. The consolidation of such actions at the level of the Notary's duty will reduce the cases of certification of documents from the deceased or other abuses.
However, this is only part of the cases that occur in the daily lives of ordinary citizens due to negligence and incompetence of notaries.
A more significant problem today is the commission by Notaries of notarial actions with the aim of obtaining unlawful benefits (that is, the activities of so-called “black Notaries” who systematically commit acts in violation of the law). So, recently the Kyiv Local Prosecutor's Office No. 2 was informed of the suspicion of a private Notary of the Kyiv City Notarial District, which contributed to the raider seizure of the property complex the shopping center. As a result of the pre-trial investigation, it was established that the Notary, abusing his powers, in order to obtain unlawful benefits in the amount of 18 thousand dollars, has made the state registration of the real rights to the specified object of the real estate to unauthorized persons, as a result of which the property left the legal possession of its owners. And such cases in the modern world (especially in our state) are becoming more frequent.
Given this situation, it is thought that to date, any person with the help of a Notary can deprive anyone of ownership of this or that object of real estate. In order to prevent such actions from the side of Notaries, it is necessary to strengthen their responsibility in this aspect. But much more, if the responsibility of Notaries from the beginning of last year was strengthened up to the criminal?
The fight against “offenders-Notaries” is still under way. So, since the beginning of last year, hundreds of Notaries had been denied access to the State Register of Property Rights for Real Estate and the Unified State Register of Legal Entities, Individual Entrepreneurs and Public Associations. Such “cleaning” of Notaries from the state authorities is positive, since the elimination of offenders is taking place.
However, you should take into account the disadvantages of such blocking. Deprivation of Notaries access to registries can lead to a rise in the cost of notarial services. In addition, the consequences of such blocking and disconnections are the deprivation of the Notary's ability to issue a property inheritance, since he does not have access to the registries. In turn, citizens who have addressed such a notary before he was denied access to the register will not be able to execute an inheritance, and the transfer of inheritance cases to other Notaries not provided by law.
Thus, it is quite clear that due to such “cleaning” there is a violation of the rights and interests of citizens protected by law, because they cannot receive the notarial services in a timely manner. Therefore, the government should eliminate this gap in order to prevent such violations.
Analyzing the subject matter of the activities of Notaries as a whole, we can conclude that the quality of their work depends not only on themselves, but to a certain extent on the legislation that regulates the procedure for committing certain notarial acts.
An important issue affecting the activities of Notaries is legislative innovations that affect one another or each other.
The State Property Fund of Ukraine recently introduced an electronic real estate valuation system. Someone of this innovation is fear, and somebody says that this will, on the contrary, bring positive changes, as it will be possible to overcome the old corruption schemes in this area. If we briefly talk about this innovation, then the property valuation report is made on an electronic platform, after which the information passes through the evaluation value module, the system automatically analyzes the indicators and decides whether the report has been reviewed and whether the notary can arrange an agreement.
As we can see, this electronic system is required for Notaries to carry out operations on the alienation of immovable property. To obtain access to the electronic database, the Notary must first authorize the electronic portal and use his own EDS to perform each verification.
On the one hand, most of the Notaries are satisfied with such an innovation, on the other - complain that this electronic system has shortcomings, because the parameters, by which the module conducts the evaluation, are quite controversial. This, in turn, will affect their work, since now the money for using the system will be paid by the client.
Due to changes in the legislation, the Notary has lost some authority. So, from now, he does not issue a certificate of consent of one of the parents for the departure of another child abroad. At the same time, such a norm is not categorical, since one of the parents with whom the child lives under a court decision may temporarily take her out of Ukraine without the consent of another parent for the purpose of treatment, study abroad, rest, in the presence of a certificate issued by the state executive body services, about the existence of arrears for the payment of alimony, the aggregate amount of which exceeds the amount of the corresponding payments for 6 months. That is, if there is such certificate, the father or the mother, depending on who the child lives with, the consent of the other parent is no longer required for notarization.
Carrying out a systematic analysis of all this, it is quite obvious that in the activities of the Notary there are both pluses and minuses. To put it lightly, at present there are both “problem” Notaries, as well as problems with Notaries, which require further resolution. The most successful solution to these issues will be to improve the legislative framework, which regulates the entire activities of the Notary.