Liability of the civil-law notary
Independent professionals such as auditors, lawyers, bailiffs, civil-law notaries and tax consultants may be liable in respect of their clients if they make a mistake. The criterion applied in case law is whether the professional has acted “as might be expected from a reasonably acting and reasonably competent colleague“. Depending on the assignment provided to them, professionals have to inform their clients on their position and warn them against certain risks and current instalments. Under certain circumstances, the professional also has an obligation to investigate.
Duty of care and liability of the civil-law notary
A civil-law notary has a compelling duty of care in respect of his clients. Under certain circumstances, this duty of care also applies in respect of third parties. The criterion applied in case law is whether the professional has acted as might be expected from a reasonably acting and reasonably competent civil-law notary. Among other things, the notarial duty of care includes the civil-law notary’s obligation to inform and warn his clients. As part of this, the civil-law notary has an obligation to investigate the background of the transactions in which he is involved and the capacity of the parties involved. If a civil-law notary acts in contravention of his duty of care, this may constitute an attributable shortcoming in the performance of his obligations under the agreement concluded with his client. In this case, the civil-law notary can successfully be held liable for the resulting damage. Whether or not the civil-law notary is actually liable for this damage will always depend on the specific circumstances of the case.
Evidentiary value of the notarial deed
The civil-law notary carries out his work on the basis of an agreement for services. Notarial deeds have significant evidentiary value. It is therefore important that participants in legal transactions can rely on the contents of notarial deeds.
Holding a civil-law notary liable
Like the estate agent, the civil-law notary is subject to disciplinary law. In addition to the liability on the basis of civil law, the civil-law notary may be liable under disciplinary law for his actions. In case of actions that are liable to disciplinary action and/or complaints about the civil-law notary’s services, the Royal Dutch Association of Civil-Law Notaries (Dutch KNB) may be asked to mediate. The KNB does not mediate in fee disputes, purely legal disputes and/or the determination of any compensation. Fee disputes can be submitted to the Disciplinary Board. The Disciplinary Board is a board that exercises disciplinary supervision on the civil-law notary on the basis of the Civil-Law Notaries Act. In the other two cases, you will have to apply to the civil court.
Lodging a complaint against a civil-law notary
If the intervention of the KNB is not successful, you can lodge a complaint against the civil-law notary with the Disciplinary Board. The Disciplinary Board judges complaints about the civil-law notary’s (incorrect) performance of duties or profession. A three-year time limit applies for such complaints. No time limit applies for complaints about fee disputes. In most cases, a complaint that is declared well-founded will also mean that the civil-law notary is liable under civil law. However, the court has to make its own assessment when establishing a professional error and may not rely on the disciplinary court’s judgment without a reason. If a judgment by the court differs from the judgment of the disciplinary court, the court will have to substantiate its judgment sufficiently.
Liability of the civil-law notary: lawyer
The property lawyers of AMS Advocaten have extensive experience in advising and litigating in the area of property law, including matters such as the assessment of liability of a civil-law notary. Our property lawyers are deeply committed to their clients’ affairs, work with short lines, and offer competing rates.