Civil law notaries in general
Introduction
Notaries occupy a special place in the world of legal profesionals in the Netherlands Antilles, alongside attorneys-at-law (advocaten), bailiffs (deurwaarders) and tax advisors (belasting-consulenten). This is apparent first and foremost from the way in which a notary is appointed and performs his duties. Like a attorney, a notary is a legal professional with clients who pay for his advice and services, but like a judge, a notary is appointed by the government until the age of retirement at 65. The permanence of the appointment is designed to safeguard the independence of the notary.
The notary is independent and impartial. Unlike an attorney-law or other legal advisor, a notary does not act for just one party. Instead, in the Netherlands Antilles legal system, he is required to weigh up and balance the interests of all the parties to a legal transaction. A notary is, as it were, above the parties. For example when real property is conveyed a notary acts for both the seller and the buyer. He has a duty of secrecy in relation to his clients and has the right to withhold information in court, in the same way as an attorney-at-law or a doctor.
All notaries are law graduates. Not only are they experts in family law, succession law, corporate law and property law, but they must also stay abreast of certain aspects of tax legislation and case law in so far as they relate to these fields. If necessary, a notary may coordinate the activities of other legal professionals. However, a notary does not represent clients in court.
Apart from providing legal advice, a notary also records agreements, either because the law requires it or at the parties’ request. The formal document drawn up by a notary, which is known as a notarial instrument, constitutes definite proof that the date and the parties’ signature are correct. A notary is requested to retain the original instrument and to issue the parties with certified copies. A specially-endorsed copy, known as the execution copy, provides conclusive evidence of title in the same way as a court judgment. It follows that the holder of a notarial instrument need not conduct legal proceedings to prove the authenticity of an instrument. By contrast, a deed drawn up by an English solicitor is not treated as an authentic document and cannot therefore be executed as such in the Netherlands Antilles.
The law gives the notary the exclusive task to draw up deeds with regard to:
- Prenuptial agreements
- Last wills and testaments
- Gifts of some assets
- Transfers of real estate properties
- Splitting buildings in apartments
- Establishing and cancelling of mortgages on real estate
- The incorporation of legal entities, including limited liability companies (N.V. or B.V.), Foundations (stichtingen), Private Foundations (stichtingen particulier fonds), Associations (verenigingen)
Though not prescribed by law, other agreements are also drawn up by notaries, including “living together” contracts, partnerships and certifications of legal existence.
The notary also has to collect some taxes like a 4% transfer tax (overdrachtsbelasting) when transferring real estate and a two per mil (2o/oo) tax on the amount of the mortgages.
Legal fees of the civil law notaries
In the Netherlands Antilles the fees of the notaries for the deeds are established by the Joint Court of Justice of The Netherlands Antilles and Aruba.
There are fixed fees for real estate transactions, mortgages and public auctions, and there are minimum fees for other deeds, such as partitions, prenuptial agreements, last wills and testaments.
