Who chooses the notary in a home purchase and sale operation?

In the process of buying and selling a property, one of the key aspects is the intervention of the notary. This professional plays a fundamental role in guaranteeing the legality and legal security of the transfer of the property.

And in this article, we are going to focus precisely on the role played by the notary in a transaction of this type and who is responsible for choosing him, as well as who must pay the costs and fees derived from his services.

What is the role of the notary in the sale and purchase of real estate?

The notary is a public official with powers delegated by the State to authorize and attest acts and contracts.

In the specific case of the purchase and sale of a property, his main function is to ensure that the process is carried out in accordance with the law and that the rights of both parties involved, buyer and seller, are duly protected.

Some of its functions are described below:

·       Verifying all documentation. The notary verifies that all the documents necessary for the purchase and sale are complete, correct and in accordance with the applicable legal regulations. This includes the current title deed, the certificate of charges and encumbrances, the energy certificate and any other relevant documents.

·       Give impartial advice. Although the notary does not act as legal advisor to either party, he or she provides unbiased and objective information about the legal implications of the purchase contract. This ensures that both buyer and seller understand the legal consequences of their actions.

·       Draft and authorize the contract. Based on the information provided and after verifying the identity of the parties involved, the notary drafts the purchase contract. This document must faithfully reflect the will of both parties and comply with the established legal requirements.

·       Sign the contract to give it legal certainty. Once the contract has been drawn up, the notary proceeds to sign it in the presence of both parties. This signature confers on the contract a special legal security, known as "elevation to public deed", which gives it enforceability and probative force before third parties.

·       Managing registrations and taxes. In addition, the notary is in charge of settling the taxes associated with the sale and purchase and registering the public deed in the corresponding Land Registry. This registration is crucial for the change of ownership to be official and enforceable against third parties.

Who chooses a notary in the sale of a property?

The choice of the notary in a home purchase is a decision that, in principle, corresponds to the parties involved in the transaction. Both the buyer and the seller have the right to propose a notary of their confidence to formalize the purchase contract. This right derives from the principle of free choice that governs most legal systems.

In practice, it is usual for buyer and seller to reach a mutual agreement on the notary who will be involved in the transaction. This agreement may be based on prior recommendations, geographic proximity or any other criteria deemed relevant by the parties.

In many cases, the parties choose a notary close to the place where the property is located. This facilitates the management of the procedures and reduces travel time, although it is not a mandatory requirement.

Sometimes, when the sale is financed through a mortgage, the financial entity may suggest or impose the choice of a specific notary with whom it has an agreement. However, this does not exclude the possibility of the parties agreeing on a different notary if they so wish.

It is important to emphasize that, although the parties may propose a notary, he/she must be a professional duly authorized by the College of Notaries and be qualified to perform his/her duties. The choice of the notary is a crucial step to guarantee the legal and juridical security of the whole sale and purchase process.

Who pays the notary in a sale and purchase operation?

The question of the payment of the notary's fees in a home purchase and sale is another relevant aspect that usually generates doubts among the parties involved.

In the usual practice, the notary fees are usually shared between the buyer and the seller according to the agreement between them. This agreement may be subject to negotiation and will depend on the specific circumstances of the sale.

The notary's fees include various concepts such as the drafting of the public deed, the intervention in the signing of the contract and the management of the registration in the Land Registry. These costs vary depending on the value of the property and the complexity of the transaction.

In addition to the notary's fees, the parties must pay other related costs, such as transfer taxes (if applicable) and Land Registry fees for the registration of the property in the name of the new owner.

It is important to note that the costs associated with the notary and the public deed are an integral part of the costs of buying and selling a home and should be considered when negotiating the terms of the contract. In addition, transparency in the information about these costs is fundamental to avoid misunderstandings.