Notarization, certification of contracts

The concept and functions of notarization of a transaction, persons performing notarial actions

Notarization of transactions is the process of confirming the legality of a transaction between individuals or legal entities, a person authorized to carry out such actions. People apply to confirm a transaction for various reasons, and the process takes place in the manner prescribed by law.

A transaction is an act of expression of will of individuals or legal entities that confirms the desire to obtain, change or terminate certain rights. The basis for completing a transaction is legal capacity that allows individuals and legal entities to carry out such acts.

The most common reason for certifying transactions with a notary is transactions involving real estate.

According to the law, this action is not mandatory, which is confirmed by the Federal Law “On State Registration of Rights to Real Estate and Transactions with It.”

The specifics of notarization are regulated by Article 163 of the Civil Code of the Russian Federation. According to the provisions of the law, identification is carried out using the inscription of a person authorized to perform such an action. Notarial actions can be carried out by a notary or an authorized official. The meaning of notarization of a transaction is to confirm the legality of the agreement through the signature of a notary. The signature of an authorized person indicates the right of persons to complete a transaction and the legality of the contents of the agreement.

The need to certify the transaction by a notary is required:

If there is this requirement in the provisions of the law.
If there is an appropriate agreement between the parties to the contract.

Persons entitled to notarize transactions:

Notary;
If there is no notary in the settlement, the transaction can be certified by a local government official;
Authorized persons of consulates, if the transaction takes place outside the Russian Federation.

1.3. The procedure for certifying a transaction by a notary

Notarization of a transaction means checking the legality of the transaction, including whether each party has the right to complete it, and is carried out by a notary or an official who has the right to perform such a notarial act, in the manner established by the legislation of the Russian Federation on notaries.

When notarizing a transaction, the notary is guided by the rules provided for by the Fundamentals of the Legislation of the Russian Federation on Notaries (hereinafter referred to as the Fundamentals), in particular, he ascertains the legal capacity of the persons who have applied to him for certification of the transaction, explains to the parties the meaning and significance of the draft transaction presented by them, and checks whether it complies with the content is the actual intentions of the parties and does not contradict the requirements of the law (Articles 43, 54-56 of the Fundamentals). Only if the transaction, as well as the documents submitted for its completion, comply with the requirements of the law, the notary decides to certify it. If the transaction does not meet the requirements established by law, the notary refuses to perform this notarial act (Article 48 of the Fundamentals).

Special rules for notarization are provided for contracts in relation to property, the rights to which are subject to state registration; wills and powers of attorney.

So, according to Art. 55 Fundamentals, when certifying agreements on the alienation or pledge of property, the rights to which are subject to state registration , the notary verifies the ownership of this property by the person alienating or mortgaging it, as well as the absence of restrictions on rights, encumbrances on the property or other circumstances that impede the execution of these agreements. Certification of agreements on the alienation of real estate objects is carried out by a notary at the location of the specified property. If the alienated real estate objects are located on the territory of different constituent entities of the Russian Federation, then the agreement is certified by a notary at the location of any of the objects. After certifying an agreement on the alienation or pledge of property, the rights to which are subject to state registration, the notary is obliged to immediately, but no later than the end of the working day or within the time limits established by the parties to the agreement, submit in electronic form an application for state registration of rights and the documents attached to it in authority for registration of rights, if the parties to the transaction do not object to the filing of such an application by a notary.

The will of a capable citizen, drawn up in accordance with the requirements of the legislation of the Russian Federation and personally presented to the notary, is subject to notarization Certification of wills through representatives is not permitted. Moreover, when certifying wills, the testator is not required to provide evidence confirming his rights to the bequeathed property (Article 57 of the Fundamentals).

A power of attorney can be certified by a notary on behalf of one or more persons and in the name of one or more persons.
In addition, the legislation provides for the possibility of issuing a power of attorney by way of subrogation. In this case, it is necessary to provide the notary with a basic power of attorney, which stipulates the right to sub-delegate, or evidence that the representative under the main power of attorney is forced to delegate the performance of established actions due to circumstances to protect the interests of the person who issued the power of attorney. At the same time, a power of attorney issued by way of sub-assignment should not contain more rights than those granted under the main power of attorney, and the validity period of a power of attorney issued by way of sub-assignment cannot exceed the validity period of the power of attorney on the basis of which it was issued (Article 59 of the Fundamentals ). actions of citizens and legal entities aimed at establishing, changing or terminating civil rights and obligations. an official authorized by the state who has the right to perform notarial acts on behalf of the Russian Federation in the interests of Russian citizens and organizations (legal entities). legal entities and individuals concluding or who have entered into an agreement with each other. A party to the agreement may be the state (the Russian Federation, its constituent entities), which act on an equal footing with other participants in civil law relations. written authority granted by one person to another person to enter into a transaction with a third party

Procedure for notarization of a transaction

The procedure for confirming an agreement by an authorized person requires compliance of the transaction with legal norms. Civil law fixes the features of agreements, transactions that require notarization and other rules for registering transactions.

The provisions that the notary checks and certifies:

An authorized person checks the form in which the agreement is drawn up.
The notary checks the compliance of the transaction with the will of the persons who sign it. A transaction is an action that is the result of free will. This is a mandatory requirement - the presence of the factor of free will is checked by an authorized person.
The transaction must not contradict the norms of current legislation.
The requirements imposed, according to the law, to persons who enter into a transaction must be observed. The main requirement is the legal capacity of the persons who enter into the agreement. If a person has incomplete legal capacity or is incompetent, an agreement on their behalf is concluded by persons entitled to do so by law.

The first remote notarial transaction was certified in Russia

Photo: Pexels Russian notaries performed a notarial act remotely for the first time. A notary from Moscow and his colleague from Yuzhno-Sakhalinsk certified the alimony agreement of the former spouses.

As the press service of the Federal Tax Service of the Russian Federation reported, the procedure was as follows. In the presence of the applicants (each was in their own city), the notaries organized a video link. For this purpose, special protected software was used. They found out the real will of the parties, read the text of the agreement to the former spouses, and explained the legal consequences. Next, each party put a so-called simple electronic signature on a special notary’s tablet. After this, the agreement was certified by enhanced qualified electronic signatures of all participating notaries. The parties optionally received a ready-made agreement either electronically or in the usual paper form.

The signed document is stored in a separate register of the unified information system of the notary - the register of remote remote transactions. This guarantees its safety and protection from illegal seizure, counterfeiting or any changes. As the FNP clarified, if we are talking about a real estate transaction, the notary who worked with its purchaser independently sends an application for registration of the transfer of ownership to Rosreestr in electronic form. In this case, according to the law, the client can receive confirmation of registration in just one business day.

When registering real estate transactions, one of the notaries must be located in the subject of the Russian Federation where the alienated object is located. At the same time, the number of participants and, accordingly, notaries involved in the transaction is not limited, the FNP explained. Notaries involved in remote certification of a transaction bear joint and several full property liability for the result of their actions.

Earlier, as LR reported, amendments were adopted to the Fundamentals of the Legislation of the Russian Federation on notaries, which introduce a number of important innovations regarding the performance of notarial acts in electronic form. In particular, a list and procedure for performing notarial actions have been established that can be carried out electronically, that is, remotely, without the client personally appearing before the notary. Such actions include: certification of the accuracy of the translation of a document into another language; transfer of electronic documents to individuals and legal entities; acceptance of non-cash funds as deposits; execution of a writ of execution for the collection of debt in an indisputable manner; providing evidence in the form of inspection of information on the Internet; issuing an extract from the register of notifications of pledge of movable property, etc.

Bilateral and unilateral transactions subject to notarial form

The law prescribes the need for notarized confirmation of such unilateral transactions:

A power of attorney, which conveys the authority to carry out transactions that require notarial confirmation by law.
Will.
Some transactions regarding pledge and foreclosure of pledged real estate.
A power of attorney, which is issued according to the procedure of substitution.
A document confirming the consent of the spouse to the transaction regarding real estate.

Bilateral transactions subject to mandatory certification by a notary, in accordance with the law:

Marriage contract;
Transfer of debt;
Rent agreement;
Agreement on payment of alimony;
Pledge of movable property;
Assignment of demand.

A transaction subject to notarization according to the law, which does not have such confirmation, may be considered invalid.

Translation of contract

Translation of a contract from another language into Russian. Notarized approval is required to give the translation official status.

Additionally, there is a list of actions that are also subject to mandatory confirmation of legality. These include a power of attorney to take a citizen of the Russian Federation under 18 years of age abroad, powers of attorney to carry out transactions with subsequent notarization, agreements on the payment of mandatory financial support for a child (alimony), and termination of a certified contract.

Requirements for a document containing the terms of a notarized transaction

The law requires the notary to check the correct form of the document.

An agreement that does not comply with the form cannot be certified by a notary.

Basic requirements regarding the form of document preparation:

The agreement must be in writing;
Signatures of persons who are parties to the transaction or their legal representatives are required;
A document signed by individuals must contain information about the name, date of birth, and place of residence. If a transaction is concluded between legal entities, the name of the organization must be indicated;
The duties of a notary include the need to explain the meaning and meaning of the transaction to everyone who participates in it;
The terms of the transaction must be read by the parties to the agreement or the notary reads them out loud;
If one of the parties to the agreement, for good reasons, cannot sign the agreement on their own, this can be done by a notary with a mandatory indication of the reasons for the impossibility of signing personally by the participant in the agreement.

These norms are mandatory and are set out in the norms of civil legislation.