Mandatory notarization of the transaction: description of the procedure, documents and features
Notarial certification of the transactionis one of the services providedcitizens and organizations. In many cases, access to authorized persons is a personal initiative of the subjects. According to the law, most transactions can be made in the usual written form. However, according to the established tradition, the subjects continue to apply to officials for obtaining greater guarantees. Let us consider in detail hownotary certification of a transaction.
Notarial certification of real estate transactionsis not expressly prescribed by law. This situation is due to the introduction of the Federal Law regulating the procedure for registering rights to objects. However, in practice, a variety of situations can arise. Therefore, in order to protect themselves and protect their rights, subjects turn to notaries. The procedure involves the commission of a special inscription on the document by an authorized person. Meanwhile,notary certification of a transactionis not only in this. The whole process of confirmation is regulated by the relevant norms and implemented in a certain order. The procedure is aimed at ensuring the validity (legality) of the contract being drawn up.
The rules of transactions are devoted to manylegal acts. The main provisions are present in the Civil Code, federal laws, presidential decrees, government regulations, ordinances of ministries and other authorities. Article 153 of the Civil Code contains the wording of the concept of a transaction. In accordance with the norm, it involves the commission of actions by organizations and citizens aimed at changing, establishing, terminating duties and rights. The deal is regarded as the most common legal fact.
In practice, subjects perform a variety oftransactions. The legislation does not contain an exhaustive list of all their types. Meanwhile, in the norms a certain distinction is made between them. As one of the criteria for classification is the subject composition. According to article 154 of the Civil Code, transactions can be one-, many- and two-sided. Within the framework of the topic under consideration, the classification according to the form of commission is of interest. Transactions can be made in person or through a representative. Separately, the Civil Code fixes types of invalid contracts and conditions for the recognition of agreements as such.
Notarial certification of the transaction: goals
Authorized persons referred toorganizations and citizens must ensure the protection of the interests of these entities. This task is realized first of all by fulfilling all the requirements stipulated in legislative and other acts, including civil-law norms. To recognize a treaty as valid, it must be drawn up on the basis of an act of volition by those persons who make and sign it.
Persons applying to a notary mustto have legal capacity. The content of the contract is set out in a document conforming to the rules established in the legislation. The essence of the transaction should be consistent with the requirements of the norms. If it is not stipulated by the law, then its content should not contradict the basics of the Civil Code. In addition, it is necessary that the result of the action correspond to the real intentions of the parties.
To conclude any transaction, according tolegislation, the will of the participants is necessary. If it is one-sided, then this rule applies to one person. The conclusion of the contract is carried out by agreement of the participants. They can be two, three or more. According to the norms of the Civil Code, when notarizing one-sided transactions, it is enough to have the will and presence of one person on whose behalf the action is committed. They include, in particular, powers of attorney, wills, waivers of inheritances, etc. If multilateral transactions are certified, the presence and will of each participant is necessary. They can be the seller and the buyer, the donor and the donee, the pledgee and the pledger. It is necessary that the will of all participants be consistent.
A notary must find out the will of the parties to the transaction. To accomplish this task, an authorized person checks:
- Conformity of the content of the contract submitted for certification, to the real intentions of the participants. To this end, the parties are asked questions.
- Competence of citizens, legal capacity of legal entities participating in the procedure. If the actions are committed by representatives, they are checked to see if they have the appropriate authority.
In accordance with the established rules, the notary must:
- Explain the meaning and meaning of the draft treaty submitted to it.
- Check whether the contents of the document comply with legal requirements.
- Identify the identity of the subjects who apply to it.
- Read the contents of the transaction to the participants.
- Offer to sign the document in your presence.
- Register the contract in the register.
Strict implementation of these rulesensures the validity of the procedure and makes the documents difficult to argue. Subjects who apply to an authorized person must provide identification papers and, in fact, an agreement. Representatives submit an additional power of attorney.
What transactions are subject to notarization?
Confirmation of the validity of contractsis carried out according to the law or agreement of the parties. In the latter case, the norms may not prescribe that notarization of transactions is mandatory. The parties' agreement is a legal fact and has legal force. The legislation defines the followingtransactions subject to mandatory notarial certification:
- A pledge to secure the performance of obligations, under a contract that must be certified. This rule is present in Article 339 of the Civil Code (clause 3).
- Rent, life maintenance with dependents (article 584).
- Cession of claims on a transaction notarized. The corresponding rule establishes Article 389 of the Civil Code (paragraph 1).
- Transfer of a debt under a transaction notarized. The demand is fixed by 391 articles (item 4).
- Agreement on termination / amendment of the contract, notarized. The rule provides for article 452, paragraph 1.
- Preliminary agreement, if the main contract in the future will be formalized with a notarial certificate. A corresponding prescription is present in article 429 (paragraph 2).
- Agreement between the pledgee and the pledgor on the application for property of recovery in a claim procedure. The corresponding rule is fixed by Article 55 of the Federal Law "On Mortgage".
- Agreement on the payment of alimony. The rule is set in Article 100 of the IC.
- Marriage contract. The requirement for notarization is provided for in Article 42 of the IC.
- A testament containing, among other things, refusal or imposition. In some cases, as an exception, it is permitted to draw up the document with two witnesses.
- Power of attorney for the conclusion of transactions for which notarization is required, for filing applications for the state registration of contracts or rights, for the disposal of rights registered in state registers.
- The power of attorney granted by the rules of transfer.
Always notarization of transactionsmandatory in cases where an additional agreement is drawn up for the main certified contract. It should be said that failure to comply with the established rules entails the invalidity of the document. Iftransactions requiring notarial certification,were not certified, and one of the participants partiallyor has fully complied with the established obligations, the court may, at its request, recognize the agreement as valid. In such situations, subsequent confirmation of the document is not required.
Transactions subject to notarization,concluded in violation of the rules, can be considered void. Claims for the application of consequences may be presented within three years from the date of commencement of execution. The law provides for another type of invalid transactions - disputable. The claim for the application of the consequences in this case is allowed to be presented within 1 year from the date of termination of the threat or violence, under the effect of which the contract was concluded. The calculation of the period can be carried out from the day when the victim learned or he could become aware of other circumstances acting as grounds for recognizing the invalidity of the transaction.