Notarial activities

What does a notary do?

When performing notarial acts, the notary public is obliged to ensure proper protection of the rights and legitimate interests of the parties and other persons for whom the act may have legal effects. It is appointed to perform actions which the parties are obliged to or wish to have notarial form. Notarial activities should be performed in a notary’s office, however, if the nature of the activities or special circumstances justify their performance elsewhere, there is such a possibility.
The notary public performs public functions of the state, aimed at securing the correctness of civil law transactions, therefore, the notary public is obliged to perform his work in a manner consistent with applicable law, reliably and impartially.

Most common notarial activities

The most common subject of sales contracts covered by a notarial deed are real estate. The basic document, the content of which is examined by the notary public, is a copy of the land and mortgage register. It is presumed that the open right from the land and mortgage register is entered in accordance with the actual legal status. In the event of discrepancies between the legal status of the real estate disclosed in the land and mortgage register and the actual legal status, the content of the land and mortgage register settles in favor of the person who, through a legal transaction with a person entitled according to the land and mortgage register, acquired ownership or another right in rem (guarantee of public faith in land and mortgage registers).

It is also important that the selling party presents to the notary a document constituting the basis for the purchase of the object of sale (e.g. a copy of the sales contract, a copy of the donation contract). Such a document may result in rights or obligations of the owner of the object of sale, which have not been disclosed in the land and mortgage register.

Pursuant to the Act of 14 February 1991 – Law on notaries, if a notarial deed contains a transfer, change or waiver of a right disclosed in the land and mortgage register or the establishment of a right to be disclosed in the land and mortgage register, or includes an act transferring ownership of real estate, even for land and mortgage register has not been kept for this real estate, the notary public preparing the notarial deed is obliged to include in this deed an application for entry in the land and mortgage register, containing all the data required by the provisions of the Code of Civil Procedure. The notary public is obliged to send ex officio to the court competent to keep land and mortgage registers a copy of the notarial deed containing the application for entry in the land and mortgage register, together with the documents constituting the basis for the entry, within three days of drawing up the deed.

In addition, the notary public in the sales contract, as the payer, collects the tax on civil law transactions from the buyer (if due) and transfers it to the bank account of the tax office, locally competent for the seat of the law firm, by the 7th day of each month, for the previous month.

For drawing up a sales contract, the notary receives remuneration, not higher than indicated in the regulation of the Minister of Justice on the maximum rates of notary fees.

Statement that specific persons inherit from the deceased in specified parts may be made not only by way of court proceedings, but also in the deed of inheritance certification, which is drawn up by a notary public. Notarial confirmation of the acquisition of inheritance is primarily characterized by the ease and speed of the procedure, which significantly distinguishes it from the court procedure. It is possible to draw up a certificate of inheritance both in the case of statutory inheritance and when the deceased left a will.

It should be noted, however, that a notary may draw up a deed of inheritance certification only when all potential heirs demand it and when there is no doubt as to the circle of heirs and the size of their inheritance shares. Moreover, as part of the proceedings before a notary public, the personal appearance of all interested parties is required, excluding the possibility of acting through a proxy. In the event of any disputes or doubts, it is necessary to refer the matter to court. The notary public cannot also draw up a certificate of inheritance for inheritances opened before July 1, 1984.

The act of inheritance certification, after its registration, has the force of a final decision confirming the acquisition of inheritance. It is important that before the inheritance is divided, the heirs must obtain an inheritance certificate or a decision confirming the acquisition of the inheritance.

Similarly to a notarial deed, a written form with signatures certified by a notary may be mandatory under Polish legislation to produce the desired legal effects, or may result from the will of the parties to the contract or the person making a unilateral declaration of intent.

Compulsory written form with signatures certified by a notary public, the legislator provided, among others, for:

– sale of a share in a limited liability company and its pledging;

– sale or lease of an enterprise or establishment of usufruct on it;

– specimen signatures of members of the management board of capital companies (if specimen signatures are not submitted to the court);

– transfer, by agreement, of the ownership of a Polish-owned ship subject to entry in the ship register and a ship under construction entered in the Polish ship register;

– establishment of a maritime mortgage on a ship;

– transfer of rights to the plot referred to in the Act of 13 December 2013 on family allotment gardens;

– conclusion of an agreement between banks on the creation of a banking group.

The notary public certifies that a given person has placed a signature in his presence, or by receiving a statement from a given person that he/she recognizes the signature on the document as his/her own.

The donation agreement enables the donor to make a financial contribution to the benefit of the donee under a gratuitous title, i.e. free of charge. Family, emotional or charitable ties are most often indicated as the motives for such behavior.

Due to the special nature of the donation agreement, the legislator requires that the donor’s statement be made in the form of a notarial deed. The participation of a notary public is primarily aimed at protecting the donor’s interests. Due to the fact that the donation is a contract, it is necessary to make a statement also by the donee. Such a declaration includes consent to accept the donation and may be submitted in any form. It should be noted that the declarations of the donor and the recipient do not have to be submitted at the same time, however, the donation agreement is concluded only when both of the above-mentioned declarations are submitted.

It should be noted, however, that in some specific situations, the legislator allows the donor to revoke the donation. Such a situation occurs when, after the conclusion of the donation agreement, the donor’s financial status has changed in such a way that the donation cannot be made without prejudice to the donor’s maintenance or the fulfillment of his statutory maintenance obligations. This is acceptable only when the donation has not yet been made, e.g. when the object of the donation has not yet been released to the recipient. If the donation agreement has already been performed, the donor is entitled to revoke it when the recipient commits gross ingratitude towards him, which is tantamount to a violation of generally accepted moral standards. In such a case, the declaration of revocation of the donation must be submitted within one year from the date on which the donor learned about the recipient’s ingratitude. If the donor has decided to revoke the donation, he must submit a written statement to the donee.

A will is the only institution that allows for the disposition of property in the event of death. Due to its personal nature, the current legal status prohibits making joint wills, i.e. those that contain dispositions of more than one testator. It should be noted that this also excludes the joint preparation of wills by the spouses.

A will or its individual provisions may be revoked or changed by the testator at any time. The waiver of this right is inadmissible and has no legal effect.

Only a person who has full legal capacity (i.e. an adult who has not been legally incapacitated) can make or revoke a will. Additionally, both of these activities require personal action as they cannot be performed by a representative.

The Polish legal system distinguishes two types of wills: ordinary and special. Ordinary wills include, first of all, a handwritten will and a will drawn up in the form of a notarial deed. A handwritten will must be entirely handwritten, dated and signed. The preparation of a will in the form of a notarial deed takes place before a notary public and allows for the fullest implementation of the will of the testator. Special wills include oral, travel and military wills – they can be made in specific, strictly defined situations.

As a rule, upon concluding a marriage between the spouses, statutory community of property arises. Within this system, we distinguish joint property of spouses and their personal property. However, the Polish legal system allows spouses to opt out of the statutory property regime and adjust the regime applicable between them to their needs. Pursuant to the legal norms of the Family and Guardianship Code, the spouses may extend, limit or abolish the indicated statutory community (by establishing property separation or property separation with equalization of the acquis). Such effect is caused by concluding a marriage contract before a notary public. Due to the significant effects of concluding the agreement in question, the legislator stipulated that it must be in the form of a notarial deed. Failure to comply with this form renders the contract invalid. It should be noted that the conclusion of the said contract may take place both before and after the marriage and is dependent only on the unanimous will of the parties.

The extension of the statutory community of ownership consists in contractually defining which of the components of the spouses’ personal assets will be covered by their joint property. It should be pointed out, however, that such an instruction is not admissible with respect to certain personal assets enumerated in the relevant regulations.

Limitation of statutory community of property consists in the contractual exclusion of certain, specific components from the joint property of the spouses. However, such an exclusion may not cover all components of joint property.

As already indicated, the abolition of statutory joint ownership may take the form of establishing property separation or property separation with the equalization of the achievements. A characteristic feature of the system of matrimonial property separation is the lack of joint property of the spouses. All property items acquired both before and after the conclusion of the contract belong to the respective personal property of the spouses.

The regime of property separation with the equalization of earnings, during its duration, is no different from the full separation discussed above. Significant differences become apparent with the termination of the above-mentioned system, because then, between the spouses, the obligation to equalize the earnings arises. The choice of the system in question allows for the protection of the spouse who had less opportunities to multiply his property during the marriage.

If the spouses come to the conclusion that the property regime chosen by them by agreement does not correspond to their current needs, they may decide at any time to amend or terminate the marriage contract. If the agreement in question is terminated while the marriage is still ongoing, and the spouses do not agree otherwise, a statutory community of property arises between them.

The current legal status allows us to perform legal actions not only on our own, but also by acting through a representative. However, we do not have such a possibility in a situation where the nature of a given act requires personal action, e.g. in the case of acknowledgment of paternity, or when the legislator himself explicitly excludes the possibility of acting by a representative in a given case, e.g. when drawing up a will.

If we want to authorize a given person to act on our behalf, it is necessary to submit an appropriate statement under which that person becomes our proxy. It should be noted that granting a power of attorney is a unilateral legal act, which means that it does not require the participation of the person to whom we want to grant the power of attorney. It depends on our decision to what extent a given person will be authorized to act on our behalf. The Polish legal system distinguishes, as a rule, three types of powers of attorney:

– general power of attorney,

– generic power of attorney,

– special power of attorney.

The general power of attorney includes the authorization to make the so-called ordinary management activities, the detailed scope of which is determined each time, taking into account all the circumstances of a particular case. A generic power of attorney should, first of all, indicate the type (a certain group) of activities and the subject to which these activities are to relate. A special power of attorney is required to perform one specific action.

The legislator stipulated that a general power of attorney should be made in writing, and failure to comply with this form results in the invalidity of a given power of attorney. However, if, in accordance with applicable regulations, a given action requires a specific form, e.g. a notarial deed or a written form with signatures certified by a notary public, the power of attorney should also be drawn up in this form. Thus, since the sale of a dwelling requires the form of a notarial deed, the power of attorney containing the authorization to sell the dwelling must also take the form of a notarial deed.

If the power of attorney does not specify the period for which it was granted, it expires only upon the death of the proxy or principal (the person granting the power of attorney). Due to the nature of the relationship between the person granting the power of attorney and the authorized person, which is largely based on the trust of the parties, it is possible to revoke the power of attorney granted at any time.

In connection with the activity performed in his office, the notary has the right to accept securities or money in Polish or foreign currency for safekeeping for the purpose of handing them over to the person indicated at the time of submission or to his legal successor. To document these activities, the notary maintains a special bank account.

The notary writes a report on the acceptance of the deposit, in which she lists the date of acceptance, determines the identity of the depositing person, the date of issue to be made and the name, surname and place of residence of the person collecting the deposit. The deposit is released against receipt.

The notary writes down the minutes of the general meetings of social organizations, associations, cooperatives, companies and other legal persons in cases provided for by law, and the minutes in order to ascertain the course of certain activities and events with legal effects, in particular regarding the appearance of the parties and the statements made by them, as well as – at the request of the appearing party – failure to appear by the other party.