The Notary proceedings, in Bulgarian legal doctrine and practice, are part of the so-called – non-contentious proceedings. The essential elements of the factual content of the non-contentious proceedings fully coincide, and are identical to, the essential elements of the notary proceedings. Such an element is the statement, typical for notary actions. In case of a real estate transaction, for example, both parties have reached an agreement in respect of the relevant parameters of the transaction and the function of the Notary Public is to formalize their agreement in the due manner and pursuant to the legal methods. That is, with the notary proceedings there is no legal dispute between the two parties (for example in the claim proceedings there is such a dispute constantly and which eventually is solved by the court within its jurisdiction.
In the proceedings, the subject of the present article, the role of the state authority, the Notary Public, is only to hear the statement of the applicants and, after verifying whether all requirements and requisites, provided for by the law, are observed in the notary deed, to certify their will by content of the deed and the signatures, affixed thereto, or the respective date or rights that it is intended to originate, for the purpose of performing his/her obligation under the specific non-contentious proceedings – issuing of a notary deed. Thus, he/she acts as a state authority such as in the claim proceedings is the court authorized by the country which in that way realises its function for a supervision up to this kind of relations.
However, since in this case there is no dispute and two parties, defending different stands, but rather one coordinated and/or individual statement, which shall comply with the formal requirements of the law, the proceedings are called non-contentious.
On the other hand, the notary proceedings constitute a specific type of non-contentious proceedings, because the function of a non-contentious authority is not performed by the court, as usual, but by the Notary Public. He/she is a state authority as well, part of the judiciary system, but having more specific functions. Usually the Notary Public plays the role of an authority verifying the declarations of intentions of the parties or actual existing conditions ( for example an emerged right of property) . In case of filing of private documents, by his/her signature, he/she certifies the authenticity of the document, as regards the date, signature or contents of the same. His/her more important function, however, is that by means of his/her signature, affixed to a document – transcript, power of attorney, invitation or notary deed, he/she grants legal power and valid legal grounds, whereby changing an existing at that moment legal standing. The issuing of a notary deed, concerning real rights over a real estate, considerably changes the rights of the two ( or more) parties in the notarised proceedings respectively the notary deed has a double legal meaning:
- by selling, for example, the real rights of the former owner over the said estate are terminated, on account of the same, obtained by the new owner over the real estate.
- similar variation of the rights is observed with the mortgage- although there is no change in the right of property, the owner of the mortgaged real estate is in charge to stand for the land charge and the potential opportunity the mortgaged creditor to direct the forced proceedings to him/ her.
Another type of notary proceedings are those, whereby a factual standing of legal nature becomes not only formally executed, but also obtains legally relevant effect as regards third conscientious or unconscientious persons. This function is characteristic for the notary proceedings, related to issuing of an ascertainment notary deed. By means of this opportunity a factual standing is transformed into a legal relevant standing . Issuing of an ascertainment notary deed is needed in the practice of the Bulgarian legal doctrine as a means for documenting of the actual owners of a considerable part of the real estates in our country. When the owner of an estate is such without possessing the relevant document and/or the relevant document is incomplete, following certain procedures and upon submission of the documents, required by the law, to the notary public in whose area is situated the estate, after verification on his/her behalf of the submitted documents, the owner may obtain an ascertainment notary deed for the title of ownership over the real estate. So, by these proceedings is ascertained the existence of a right of property of a party over a definite real estate as the owner acquires a document establishing his/her rights and which he/she does not dispose of it before the initiation of the proceedings. The ascertainment notary deed does not create a right of property. . In this case the notary public, by means of the rights and delegated by the State rights, provided thereto by the law, may ascertain the rights of the owner. He/she is not certifying the contents of a document, date or signature, he/she ascertains the rights of the owner and verifies the authenticity of the submitted documents, concerning the title of ownership and they have their relevant effect by the moment ,till which the third party proves that he/she is the owner of the property for which is issued the ascertainment notary deed.
Under the fact that the ascertainment notary deed is not a reason for an acquisition of the property right, it is extremely important from a practical point of view when a transaction for a real estate acquisition is imminent and the vendor presents an ascertainment notary deed, the documents proving the origin of the property right to be demanded. These documents could be: a contract, legal rulings and others.
The opportunities, provided by the law to the notary public are specific and clearly defined by the law, i.e. it is impossible to deflect from them. In this sense, his/her function is expressed in, upon a request on behalf of an interested person, reviewing the available documents, conforming them to the letter of the law, which provides for specific options for each situation, and, if they comply with and do not contradict with the legal principles, morals and ethics, he/she may not refuse to ascertain the title of ownership and the respective issuing of the deed.
The verification of facts is a one of the means of obtaining an ascertainment notary deed concerning the title of ownership, used in situations, when an owner is real and actual owner, but does not possess the documents, required by the law. This is a special method, since the owner of the real estate does not in fact have any written documents enough to establish his/her ownership. Most frequently the persons who initiate such proceedings dispose only of the factual right over the estate. . Often they enjoy only one of the three authorities, contained in the title of ownership, as a subjective real right, that is only the possession authority. The other two authorities, contained in the title of ownership – the usufruct and the disposal are either quite restricted, or he/she may not make use thereof at all. As far as in respect of the usufruct there may exist exceptions and the possessor can actually use the fruits of the estate, in kind or civil, in order to exercise the third authority – the disposal with the real estate, he/she will first need to prove his/her title of ownership on grounds of a verification of the facts.
In practice, however, such cases are not rare, since, throughout our long historic development, all this system – for certification of real rights has undergone a number of transformations and has passed through different stages, the legislation provides for this opportunity. The idea of its to enable those, who are the real heirs of the real owners of the estate, to prove it in an appropriate manner, and subsequently obtain their due title of ownership documents, required by the law, and be able, if needed, to defend against third persons, contesting their rights, as well as to obtain the legal protection, which is due to all other owners.
The grounds, whereon this method of obtaining the title of ownership is developed, represent another institute, typical for the Bulgarian legal doctrine, this of the prescription, provided for by the Property Act, articles 79 – 86 and the application of articles 113, 115, 116, 117 and 120 of the Obligations and Contracts Act. Pursuant to them, the title of ownership over a real estate is obtained by prescription after the continuous possession for 10 (ten) years. If the possession is conscientious, the title of ownership is obtained after the constant possession for 5 (five) years. The conscientious possession has lots of features, which are subjective and, hence, difficult to prove, this is why in practice the conscientious possession is almost inapplicable.
The proceedings, related to proving the title of ownership over a real estate by referring to prescription, the so called verification of facts, shall comply with all cumulatively stated elements of the law, in order to ensure the presence of the above legal grounds, whereby the possessor becomes the owner. One of the most important of them is the actual possession and the intent of the possessor to be in the direction, needed to make him/her the owner. First, it is very important that he/she had exercised the factual authority on legal grounds, capable of making him/her the owner, and, on the other hand, to have had the intent to appropriate the estate, i.e. the animus (the intention) shall comply with the corpus (the factual possessity). Only upon the objective proving of these two cumulative prerequisites there may be instituted the proceedings, related to the proving of the title of ownership, by applying the method of prescription, the so called verification of facts. These prerequisites are proved by taking into account the real facts and the actions of the possessor himself/herself, who wants to become the owner.
After proving all the above requirementsin their cumulative, , the possessor of an estate may request, pursuant to the procedures, provided for by the law, from a notary public to institute the proceedings, related to the issuing of a notary deed on grounds of the verification of facts. The most typical element of the contents of this method of obtaining the title of ownership is its ascertainment nature for the owner of the real estate The issued notary deed on grounds of this method represents an ascertainment notary deed and as part of the specific type of notary deeds, it only formalizes an already proven and existing fact from legal point of view.
As the detailed verification is special proceedings- then a logical consequence of this are the specificities of the proceedings of its issuing, listed in article 587, par 2 CPC. With the issuing of the deed the notary establishes a reason for the property right and exactly- the presence of a past statutory limitation in the petitioner’ favour as one of the primary means for an acquisition of the property right.
The acquisition of property using this method aprior, the same shall be acquired free from any duties, unlike the derivative acquisition methods, such as succession, where the property is acquired burdened with property rights, which continue to weigh on him and his new owner.
When other means of acquiring property rights are unenforceable for any reason for one possessor, the notary checking for acquiring the property by prescription through the questioning of three witnesses identified by the mayor, district or municipality or his official in the area of the property subject to verification.
The witnesses shall be indicated on the instructions of the owner and should possibly be neighbors. Procedure began with a request – a declaration addressed to the notary in whose area the location of the property, which is indispensable for the validity of the notarial acts. Together with this request are submitted the other required documents as follows:
- duly authenticated certificate from the municipal or civil service, addressed to the present notary from which it appears that the property inspected or is not appropriate state or municipal property;
- Certificate of current (issued within 6 months but compulsory in the year when the notary deed will be constituted) tax valuation of the property issued by the office to the Department of Local Taxes and Fees in the municipality;
- Draft of a notary deed
The main purpose of the notary is to establish whether the claimant to ownership of property is an applicant possessed property within the statutory limits on the ownership, namely 10 (ten) years of deception and 5 (five) years for possession in good faith. With that agreement now on the period for acquisitive prescription is taken into account the necessity of proving possession for 10 (ten) years. Through the testimony of witnesses must establish the fact of possession – whether it isconstantly, certain, , calm, etc. After filing - a declaration by the applicant, the competent (by the location of the property) notary forms a notary case. The case continues to summon the applicant and witnesses. Readings of witness statements and data are recorded in the minutes which leads to the notary.
Because n the Bulgarian legislation has established a prohibition on the acquisition by prescription of properties that are public state or municipal public property. (according to the Ownership Act . In view of this there are some peculiarities in the proceedings by issuing a Nnotary deed on grounds of verification of facts.. Due to the necessary to issue a certificate accordingly by the municipal or state administration, the procedure for issuing findings deed can be divided into two parts, namely: procedures for issuing a certificate by the state or municipal administration and the actual production of issuing title act. These two procedures are cumulative bound and determined kind, depend on one another as part of the actual composition of the entire procedure for carrying out verification of the circumstances, to issue findings of the deed on the property by acquisitive prescription of ways. In view of this need to be referred to the procedure itself and the issuance of the certificate by the municipal or public administration. Along with the application – a statement which shall be completed to initiate the issue of ascertainment act on the back of that is the form that must be completed for the certificate, respectively, state or municipal administration. Thus the completed form shall be filed with the clerk of the municipality (region) at the location of the property where the work is necessary to check the archives of the municipality and / or district administration. Deadlines for issuing these certificates vary depending on the rules and internal order of the administration itself, but for verification in the municipal administration period can be less – than 30 (thirty) days and for a certificate from the district administration, no more 7 (seven) days, counted from the day following the filing. Following the submission of applications – declaration should relevant internal procedure that passes through several major structural units of the administrations, each of these units check that the property is available ones in order somewhere in the archive as appropriate municipal or state. After completing the necessary controls are put a stamp of the municipal or district administration that the property is or is not municipal or state, and subsequently issued certificate itself. Denials of such certificates, since they are inherently individual administrative acts are subject to appeal under the Administrative Procedure Code.
This procedure – certificate of property from which it appears if the property is or is not state or municipal property creates some difficulties for those wishing to benefit from this origineren process, as generally for the issuance of certificates reflecting circumstances Real estate is essential that the person requesting the report to the owner. This requirement is definitely creates some difficulties, because apparently the person seeking the certificate is not yet an owner under the law. This controversy had the practice application – statement before the notary and the application seeks a certificate to form a single document with two countries are prominent reasons to want or allow the two applications respectively – their interdependence. Once by the person concerned of this certificate may continue and the actual process of issuing title deeds on matters reviewed by the notary. Production continued with a presentation of already completed an application – a statement by the person, together with a duly authenticated certification from the municipal or state authorities. As already spomenatospomenah thereto shall apply and the certificate of tax assessment and any other evidence (oral and written), which is evidenced by the previous acquisitive prescription in favor of the applicant. In this production documentary evidence of the facts relating to the limitation in principle only add vowels. Conversely, however, is possible – where the applicant relies on prescription through possession in good faith. Such possession can not prove the absence of documentary evidence.
The person may not invoke the provision of Art. 79 of the Ownership Act if a written document containing a suitable owner to do plea. Since the proof of possession in good faith, it is very hard and is associated with many difficulties, most driven – now the mandatory presence of written evidence of its use in the procedure for issuing findings deed on the basis of the circumstances inquiry – rather than than practice. Such evidence may be certified as survivors of partition agreement, court order of partition, etc. Vocal evidence in tbe notary deed on grounds of verification of facts are the main circumstantial evidence. The purpose of verification by the notary in the interrogation of witnesses to ascertain whether the applicant is possessed of the Ownership Act in the required time limits and how they ruled – in good faith or bad faith. For this purpose it is necessary to establish the existence of both elements of possession – actual power and the intention of the person to possess property as his own. Once the notary duly established, it is necessary to ascertain that the property is not state or municipal public property. Its happened clear from the completed and certified by competent state authority in that particular order, certified. The notary may automatically collect evidence to clarify the actual legal position, if necessary.
Based on the evidence – the examination of witnesses and all others documents whish are found it necessary, the notary made his conclusion: whether the applicant is the owner of this property or is there an expired prescription in his favor, and whether the property is excluded from objects that can not be acquired by prescription or not enough evidence of that fact. This finding a notary materialize in a reasoned decision with which respectively recognize or deny ownership of the applicant. Essentially, that order constitutes a decision on non-contentious proceedings. If the notary acknowledge the applicant’s ownership, then it is based on the decree issued ascertainment deed of ownership. This notary act must be defined content, provided in Art.588 of Civile Procedures Code.
So issued notary act shall be recorded by the judge for the entries of the corresponding location of Property Registry Agency and then possibly more in the same day on which it is issued. However, if the notary does not recognize the right of ownership of the applicant, he may appeal against an order provided in Civile Procedures Code In CPC there are two texts, which relates to appeals of actions of the notary – in art. 577, para 1 and Art. 538.CPCThe provisions of Art. 577 CPC, are specific to these general rules of the security procedures under Art. 530 and following of the Civil Code and apply only to notarial proceedings: legal transactions involving deeds, verification of title, verification of date content, signatures and more. If the notary refuses even to begin such proceedings, for that his refusal will apply art. 577CPC , its may be appealed within seven days of actual withdrawal. In such a case, it is not necessary notification to the applicant of the refusal.
The refusal of a decree recognizing the right of property met all the requirements prescribed by law subject to appeal under Art. 538, since it is non-contentious proceeding. In this case, notary no document, no evidence, he jurisdiction. Accordingly, the decree by which ownership of property is not recognized may be appealed in – higher court within seven days of notification to the applicant that is made as permitted provision of Art. 538, para 1 CPC , because in this case the refusal of the notary to recognize the right of ownership is not notarized documentation of fact and a law.
Important here to note that the notary act issued by Notary deed on grounds of verification of facts no force of res judicata, it only establishes an existing law and put it in legal form. In the case when such an act challenged by a third party, the burden to prove its falsehood falls on those who contest According to Art. 537CPC , para. 2 consequent dispute over the ownership should be decided in a civil action by concerned brought against the person who uses the title deeds, appropriate action. In the case should be brought under art restitution claim. 108 of Ownership Act (an action nevladeeshtiya property owner against nesobstvenik speak the same property.). In production for a notary act of art. 587 CPC paid notary fees determined by the Notaries and Notarial Practice Act and tariff thereto. Fees are proportionate and depend on the certified material interest (usually the property tax assessment- if it comes to a sale- the retail price in case it is higher than the tax assessment). Fees are paid on application and even if no recognition of property rights are not refundable.
Issued notary act on notary deed on grounds of verification of facts and found a property right determines binding probative force of this act on the affiliation of the title to the assets of the person in whose favor the order was issued.