Notarial deed is an official document confirming the performance of a specific legal act, and one of its special forms.
Notarial deed is drawn up, if required by law or by the wishes of the parties. An important element of the activity is the reading of the notarial deed by the notary lor by another person in his or her presence, and when reading the deed, the notary should satisfy himself or herself that the persons participating in the action understand the content and meaning of the deed accurately and that it is in accordance with their will. Failure to comply with the form of the notarial deed when required by law, or when it was reserved by the parties to the contract, renders the legal act (e.g., the sale of real estate) ineffective and invalid (the property will not pass to the buyer). The language and form of drafting a notarial deed are formalized to exclude all ambiguities.
Who can draw up a notarial deed
A notary public and, in special situations, a Polish consul are authorized to draw up notarial deeds, provided that they have received written authorization from the Minister of Justice issued at the request of the Minister of Foreign Affairs.
What actions require a notarial deed?
Any contract can be concluded in the form of a notarial deed. Signing a deed gives us the certainty that when its provisions are broken, we can pursue our cases in court. In several cases, the legislator obliges us to keep the form of a notarial deed.
The form of a notarial deed requires, among other things.:
- contracts obliging to transfer ownership of real estate, e.g., purchase and sale of an apartment
- contracts obliging to transfer the right of perpetual usufruct (Article 237 in connection with Article 158 of the Civil Code)
- uagreements for the sale of the ownership right to premises
- donor’s declarations in a donation agreement (Article 890 § 1 of the Civil Code)
- agreement on division of inheritance (Article 1037 § 2 of the Civil Code)
- waiver of inheritance by a future statutory heir (Articles 1048 and 1050 of the Civil Code)
- partnership agreement
- the limited partnership agreement (Article 106 of the Commercial Companies Code)
- the articles of association of a limited joint-stock partnership
- the articles of association of a limited liability company
- agreement for the sale of a cooperative ownership right to premises
If the law or the contract reserves for a legal action the form of a notarial deed, an action performed without this form is invalid (Articles 73 § 2 and 76 of the Civil Code).
Important
The form of the notarial deed requires the principle of unity of persons, place and action.
What the notarial deed contains
Although a notary prepares the content of a notarial deed, there is no single established form for drafting such documents. This implies the existence of minor differences in individual notarial acts depending on the region of the country, the notary chamber or the land and mortgage court. According to Polish law, Article 92 § 1 of the Notary Law indicates that a notarial deed should be drawn up in Polish and contain:
- the day, month and year of preparation of the deed, and if necessary or at the request of a party – the hour and minute of the beginning and signing of the deed,
- the place where the act was drawn up,
- the name, surname and seat of the notary’s office, and if the act was drawn up by a deputy notary – additionally the name and surname of the deputy,
- names, surnames, parents’ names and place of residence of natural persons, name and seat of legal persons or other entities participating in the deed, names, surnames and place of residence of persons acting on behalf of legal persons, their representatives or attorneys, as well as other persons present at the drafting of the deed,
- statements of the parties, referring, if necessary, to the documents presented at the act,
- statement, at the request of the parties, of the facts and relevant circumstances that occurred at the drawing up of the deed,
- statement that the deed was read, accepted and signed,
- signatures of those taking part in the deed and those present at the drafting of the deed,
- the notary’s signature.
A notarial deed can be divided into five main parts. The first always includes the date, the place where the deed was concluded, and the details of the parties and how they were identified. The part, which is the content of the notarial deed, is followed by a section on taxes, stamp duty and notary’s fee. At the end there is always a statement about the reading, acceptance and signing of the deed, and the signatures of the betters and the notary.
How long does the notarial deed remain in the notary’s office
Note that the originals of notarial deeds are kept by the notary who drafted them for a period of 10 years.
During this period, the originals of the notarial deed cannot be released outside the office. After the expiration of the ten-year period, they are transferred to the land registry archives of the relevant district court.
Is it possible to conduct a bailiff execution on the basis of a deed?
According to the Code of Civil Procedure [Journal of Laws 1964 No. 43, item 296], one of the following is needed to initiate bailiff enforcement:
- court decision,
- a settlement made before a court or mediator,
- a notarial deed containing the debtor’s statement of voluntary submission to execution.
So, according to the current law, the debt can be enforced on the basis of a notarial deed. This significantly saves time, as well as the expenses that are associated with pursuing a case in court.
What conditions must a notarial deed meet to be the basis for bailiff enforcement?
In the notarial deed, the debtor must declare that in the event of non-performance of his obligation he will voluntarily submit to execution, without court consideration. (Similarly: the owner of a mortgaged property must declare that he will submit to execution from the mortgaged property, and the owner of a mortgaged movable property must declare that he will submit to execution from the mortgaged property). In addition to such a statement, the notarial deed should include the amount of the debt and the deadline for its repayment. The deed must also specify the conditions that will allow the creditor to initiate enforcement proceedings and the date by which the deed can be applied for an enforcement clause. So, in order for a notarial deed to be the basis for enforcement of a debt, it should include:
- data of the debtor and creditor,
- statement of the debtor on voluntary submission to execution,
- a detailed description of the debt,
- the deadline for repayment of the debt,
- the date by which the creditor can apply for an enforceability clause for the notarial deed.
At our notary office in Jelenia Gora, notary Kaja Kuznicka will help you with all your notarial deeds.