Examination of Title Regulations, 2012

L.N. 355 of 2012

NOTARIAL PROFESSION AND NOTARIAL ARCHIVES ACT

(CAP. 55)

Examination of Title Regulations, 2012

IN exercise of the powers conferred by article 84C of the

Notarial Profession and Notarial Archives Act, the Minister for Fair

Competition, Small Business and Consumers has made the following

regulations:-

(1) The title of these regulations is the Examination of Citation and

commencement.

Title Regulations, 2012.

(2) These regulations shall come into force on 1 January 2013.

In these regulations, unless the context otherwise requires

Interpretation.

"Act" means the Notarial Profession and Notarial Archives Act;

"authenticated copy" includes a true copy of an authenticated

copy;

"contract of engagement" means the contract referred to in

regulation 19, and includes any amendment thereto;

"diligence" means the diligence referred to in the Act and in

these regulations;

"direct owner" includes sub-direct owner;

"directum dominium" includes sub-directum dominium;

"document" means any handwritten, typewritten, printed or

computer-generated document, or one which has come into being

through a combination of two or more of these methods, and includes

photostatic copies thereof;

"examination of title" has the meaning assigned to it in the Act

and in these regulations;

"emphyteusis" includes sub-emphyteusis;

"ground rent" includes sub-ground rent;

"immovable" means the ownership of immovable property or

other real right over such property, the subject-matter of the

examination of title;

"Land Registry" means the registry set up by the Land

Registration Act and includes any other registry or body which from

time to time may take over some or all of the functions and

responsibilities of the Land Registry;

"legacy" includes pre-legacy;

"legatee" includes pre-legatee;

"photostatic copy" includes a scanned image;

"plan" includes a sketch or design, howsoever made;

"prescriptive period" means ten, thirty or forty years depending

on the basis of prescription applicable in terms of these regulations;

"Public Registry" means the registry set up by the Public

Registry Act and includes any other registry or body which from time

to time may take over some or all of the functions and responsibilities

of the Public Registry;

"report" means the report made in terms of regulation 20;

"searches" has the meaning assigned to it in regulation 6(2);

"testamentary search" has the meaning assigned to it in

regulation 11;

"title" means the title under which an immovable has passed to

the transferor;

"transferee" means a person who acquires an immovable inter

vivos by notarial act, whether there is a contract of engagement or not

and, unless the context otherwise requires, includes a person (other

than a creditor or a person referred to in regulation 19(4)) who

instructs a notary to examine title in terms of a contract of

engagement;

"transferor" means a person who transfers an immovable inter

vivos by notarial act.

(1) These regulations shall apply where a notary is

deemed, in terms of article 84C(5) of the Act, to have been instructed

by the transferee to examine title.

(2) These regulations shall also apply where a notary is, in

terms of article 84C(4) of the Act, instructed by a contract of

engagement to examine title.

(3) These regulations may be modified

(a) by means of the contract of engagement referred to

in sub-regulation (2); or

(b) by means of a contract of engagement where, in the

case referred to in sub-regulation (1), the notary and the

transferee choose to enter into such contract.

A notary shall ipso iure be exempt from examining the title Exemptions.

to an immovable which is the subject-matter of any of the following

acts he publishes

(a)

a donation made between persons related to each

other by consanguinity or affinity in the direct line to any degree

and, or to their respective spouses, and in the collateral line up

to the third degree inclusively and, or to their relative spouses;

(b) the constitution of the right of usufruct, use or

habitation between any of the persons mentioned in paragraph

(a);

(c)

a transfer ordered by a competent Court or tribunal;

(d) an acquisition under any title from the Government

of Malta, whatever the root of title;

(e)

an acquisition under any title from the Housing

Authority or other body established by law, whatever the root of

title;

(f)

an acquisition under any title, whatever the root of

title, by the Government of Malta, by any corporate body

established by law or, as may be authorized in each case by the

Minister responsible for notarial affairs in terms of article 22(3)

of the Act, by any partnership or any other body in which the

Government of Malta or any such corporate body as aforesaid

has a controlling interest or over which they have effective

control;

(g)

an acquisition of the perpetual directum dominium;

(h)

a partition;

(i)

an assignment between spouses consequent to the

termination of the community of acquests even where the

assignment includes immovables which did not form part of the

community of acquests.

(1) A notary shall not be responsible to examine the title

to an immovable for the benefit of a creditor who is a party to a

notarial act and in whose favour either a special privilege arises over

such immovable or a special hypothec is constituted thereon.

(2) Such creditor shall have the right to instruct the notary

publishing the act to examine the title to such immovable by a

contract of engagement and, to the extent that these regulations are

not modified, they shall apply to such contract of engagement.

(3) A notary shall not enter into a contract of engagement with

a creditor if the notary is deemed to have been instructed to examine

title by the transferee in terms of the Act and these regulations or if

the notary has entered into a contract of engagement with the

transferee to examine title to the same immovable.

(1) The documents to be compiled for the examination

of title shall consist of the following

(a)

official searches in terms of regulations 7 and 8;

(b)

official testamentary search in terms of regulation

11;

(c)

copy of the acts inter vivos and wills, extracts

therefrom and declarations in terms of regulation 16; and

(d) any other copy of a document or a plan to which

these regulations refer as forming part of the searches.

(2) The documents compiled in terms of this regulation shall

collectively be referred to as the searches.

(3) The searches shall cover the prescriptive period in terms of

regulation 18(2)(a).

(1) Saving the provisions of these regulations, an

official Public Registry search which is not in terms of the Public

Registry (Inspection and Searches) Regulations, shall be excluded

from the scope of these regulations

Provided that a notary who, in the following instances, relies on

a Public Registry search, shall be considered to have acted with due

diligence for the purposes of the Act and these regulations even

where, in terms of the Public Registry (Inspection and Searches)

Regulations the search is not considered to be official. The instances

are the following

(a)

those relative to a particular town or village, and

(b) those where the different maternity of the person

about whom the search is being conducted has been excluded.

The notary shall in his report inform the transferee of the

limitations of such search.

(2) A notary who makes an online update of an official search

shall be considered to have acted with due diligence for the purposes

of the Act and these regulations even where, in terms of the Public S.L. 56.03

Registry (Inspection and Searches) Regulations the online update is

not considered to be official. The notary shall in his report inform the

transferee of the limitations of such update

Provided that for the time that online searches are not

guaranteed by the Public Registry, an online updating shall not be

carried out for any period exceeding ninety days.

(3) A notary shall ensure that the official Public Registry

search be updated officially up to not more than twenty-one days

prior to the date of publication of the notarial act, unless he chooses to

update it through an online search, in which case he shall update the

search up to not more than seven days prior to the date of publication

of the notarial act.

(4) (a)

A notary shall not be responsible beyond what

transpires from the Public Registry official search.

(b) Without prejudice to the generality of the provisions

of paragraph (a), a notary shall not be responsible for any error or

omission in the Public Registry official search itself, whether this

results from an error or omission in the official list of numbers, or an

error in the contents of a note referred to in the official list of

numbers, or an error or omission in the online data the notary has

downloaded.

(5) Where there is a discrepancy between an official Public

Registry search and a copy of a notarial act forming part of the

searches, because -

(a)

a note of enrolment, a note of hypothec (including

privilege) or a note of reference (including one of total

cancellation, reduction, assignment, postponement or

subrogation) referring to such act is for any reason not included

in the official list of numbers; or

(b) the contents of a note is in conflict with the contents

of the corresponding notarial act,

the notary shall mention this in his report and shall advise the

transferee on the course of action he could take, including the

possibility of referring such transferee to take further independent

legal advice.

(1) Saving the provisions of these regulations, a Land

Registry official search that is not in terms of the Land Registry Rules

shall be excluded from the scope of these regulations.

(2) For the purpose of these regulations, the Land Registry

official search shall be issued not more than two months prior to the

date of publication of the notarial act.

(3) (a)

A notary shall not be responsible beyond what

transpires from the Land Registry official search.

(b) Without prejudice to the generality of paragraph (a),

a notary shall not be responsible for any error or omission in such

official search, whatever the reason.

(4) Where there is a conflict between the Land Registry

official search and a copy of a notarial act which forms part of the

searches, the notary shall mention this in his report, and he shall

advise the transferee on the course of action he could take, including

the possibility of referring such transferee to take further independent

legal advice.

(5) Where there is a manifest discrepancy between a plan in

the Land Registry official search and a plan submitted to a notary by

the transferee, or one which is annexed to a copy of a notarial act

which forms part of the searches, the notary shall in his report advise

the transferee to seek the services of an architect on the course of

action the transferee could take.

(1) Where the immovable devolved on the transferor by

testate succession, the testamentary search shall form part of the

searches.

(2) The provisions of sub-regulation (1) shall likewise apply to

all transmissions within the prescriptive period.

(3) Where the succession is governed by a will executed

abroad, it shall be the responsibility of the transferor to provide the

notary with a copy of the documents relative to the last testamentary

dispositions of the testator, and such documents shall form part of the

searches.

(4) Where the succession of any of the transferor’s

predecessors in title within the prescriptive period is governed by a

will executed abroad, the notary shall rely on the declarations made in

previous notarial acts relative to the immovable being transferred and,

or any relevant document available in Malta and obtainable with due

diligence by the notary.

(5) The notary shall not be responsible if the documents

supplied to him or obtained by him are erroneous or misleading,

unless there are compelling reasons for him to believe this to be the

case.

(6) The notary shall mention all the relevant facts in his report.

Where the immovable has devolved by intestate succession Intestate

on the transferor or on any of his predecessors in title within the succession.

prescriptive period

(a) the provisions of regulation 9 shall mutatis mutandis

apply; and

(b) a Court decree declaring open the succession of the

person from whom the immovable devolved shall form part of

the searches, unless at least one of the transferors provides an

affidavit of the family tree in which case the affidavit shall form

part of the searches instead of the decree

Provided that the provisions of paragraph (b) shall not apply to

the predecessors in title of the transferor in the case where the

immovable had devolved by intestate succession on any such

predecessor in title prior to the coming into force of these regulations.

A testamentary search consists of the official extract of the Testamentary

Act of Death, the official search relative to secret wills issued by the search.

Civil Court (Voluntary Jurisdiction Section), the official search

relative to public wills issued by the Public Registry including a copy

of the relative notes of enrolment, and, saving the provisions of

regulation 16, it includes an authenticated copy of the will governing

the succession, if any.

(1) Where the immovable is subject to an emphyteutical Emphyteutical

concession to which there is an exact reference in the Public Registry concessions.

official search within the presciptive period or to which there is an

exact reference in the Land Registry official search, the notary shall

check the terms and conditions of such concession, if the original act

or register thereof is available.

(2) Where an exact reference to the emphyteutical concession

does not result from the Public Registry official search within the

prescriptive period or from the Land Registry official search, the

notary shall not be bound to carry out a Public Registry official search

beyond the prescriptive period in order to trace the emphyteutical

concession and peruse its terms and conditions, but this fact shall be

stated in the report, and the notary shall also inform the transferee -

(a)

that it is advisable to obtain a copy of the act of

emphyteutical concession, and

(b) whether it is possible with due diligence for the

notary to obtain such a copy.

A notary’s responsibility for the examination of title shall

be limited to what results from the searches, and shall be subject to

any disclaimer or limitation agreed upon in a contract of engagement,

or as may result from the report.

A notary shall not be responsible for a registration of an

immovable made by the Land Registrar in the name of an

Ecclesiastical Entity or of the Government of Malta in terms of the

Ecclesiastical Entities (Properties) Act if, pursuant to an application

for its first registration or dealing therewith lodged in the Land

Registry by the Joint Office in the name of the Ecclesiastical Entity or

of the Government of Malta as the case may be, the Land Registrar

registers the immovable or the dealing less than two months prior to

the date of publication of the notarial act, notwithstanding that in

terms of the aforesaid law the date of registration is deemed to be a

date earlier than the date when such application was lodged.

(1) Unless information is available from the searches, a

notary shall not be bound to verify

(a)

whether the immovable is covered by a valid

development permit issued by the Planning Area Permits Board,

the Planning Authority, the Malta Environment and Planning

Authority or other competent authority or board;

(b) whether the immovable is built according to the

plans forming part of the development permit;

(c)

whether it is in conformity with building laws and

regulations;

(d) whether it is compliant with energy performance or

similar regulations;

(e)

whether it is compliant with any environmental

obligation, of whatever nature;

(f)

whether it is covered by trade and operation

licences; and

(g)

whether it is structurally sound.

(2) Where the immovable is situate in a complex, the

provisions of this regulation shall apply mutatis mutandis to the

complex as a whole.

Where the official Public Registry or Land Registry Copy of acts

searches refer to an inter vivos act regarding the immovable or to a and wills.

will affecting the title to such immovable, an authenticated copy of

such act and will, including all relevant documents annexed thereto,

shall form part of the searches

Provided that the notary may at his discretion obtain an

authenticated extract of any act or will instead of a complete copy

thereof

Provided further that the notary shall not be bound to obtain a

copy of an unica charta will published before 1 March 2005 unless

the succession of both testators has opened. He may at his discretion

obtain a declaration made in terms of the proviso to article 68(2) of

the Act.

(1) Where the transferee is assisted by another notary, Exemption in

an advocate or legal procurator who has assumed the obligation of view

professionals.

examining title, the obligation imposed by article 84C(5) of the Act

on the notary publishing the act shall not arise.

(2) The transferee shall make a declaration in this regard, and

the provisions of regulation 22(4) shall apply.

(1) A notary who carries out the examination of title in Diligence

terms of these regulations shall be deemed to have acted with due

diligence.

(2) Notwithstanding the provisions of any law to the contrary,

a notary shall be deemed to have acted with due diligence in

examining title if he adheres to the following

(a) where the transferor acquired under a title capable of

transferring ownership in terms of article 2140 of the Civil Cap. 16.

Code, the notary compiles the searches on the basis of the ten-

year acquisitive prescription, and on the basis of the thirty-year

acquisitive/extinctive prescription in all other cases, except

those referred to in article 2144 of the Civil Code where he

compiles the searches for the prescriptive period of forty years;

(b) where he compiles the searches on the basis of the

ten-year acquisitive prescription, if he presumes good faith

throughout the prescriptive period, unless it is manifestly clear

to him from the searches that this is not the case;

(c)

where he compiles the searches on the basis of the

ten-year acquisitive prescription or on the basis of the thirty or

forty-year acquisitive/extinctive prescription, if the notary

presumes

(i) continuous, uninterrupted, peaceable, open

and unequivocal possession throughout the prescriptive

period, unless it is manifestly clear to him from the

searches that this is not the case;

(ii) there has been no cause of suspension or

interruption of the prescriptive period, unless it is

manifestly clear to him from the searches that there has

been such cause.

(3) For the purpose of this regulation "title capable of

transferring ownership" means any onerous title, a donation, and a

legacy even where the vesting of the legatee with the possession of

the immovable has not taken place

Provided that where there has not been the vesting in possession

of the legacy, the notary shall point this matter out in his report and

explain the meaning and consequence of article 845 of the Civil

Code, and he may refer the transferee to take further independent

legal advice.

(4) In his interpretation of the searches compiled in terms of

these regulations and in his advice given where the regulations

require him to give such advice or where he is of the opinion that he

should do so, a notary shall use the professional expertise expected of

a member of the notarial profession, as subject to the provisions of

the Act, these regulations and the contract of engagement, if any.

(5) Notwithstanding the provisions of any law to the contrary,

the degree of diligence required of a notary when examining title

shall not exceed that of a bonus paterfamilias.

(1) The contract of engagement shall be in writing and

shall contain a description of the services a notary binds himself to

provide, the standard of diligence he is to exercise, if it is different

from that required by these regulations, any disclaimers and

limitations, the professional fees payable and any other matter the

parties to the agreement may agree upon. It shall also contain a

declaration made by the person engaging the notary outlining the

reason why he requires the examination of title

Provided that the parties thereto shall not be precluded from

amending in writing such contract at any stage prior to the submission

of the report by the notary.

(2) The contract of engagement shall be in two originals both

to be signed by the notary and the person engaging the notary, and it

shall bear the date of its execution. One of the originals shall be kept

by the notary and the other by the person engaging him and, where

more than one person jointly engage him, by one of them.

(3) A notary shall not be precluded from entering into a

contract of engagement with the transferee even where he is deemed,

in terms of article 84C(5) of the Act, to have been instructed to

examine title, and in such case the provisions of sub-regulations (1)

and (2) shall mutatis mutandis apply.

(4) Where a notary is instructed to provide one of the services

mentioned in article 84C(11) of the Act, he shall enter into a contract

of engagement with the person so commissioning him, and such

contract shall contain all the terms and conditions of the engagement

and, as far as possible, it shall be modelled on the provisions of sub-

regulation (1), and the provisions of sub-regulation (2) shall mutatis

mutandis apply.

(1) After he has examined the title, the notary shall The report.

draw up a report in writing

Provided that the notary shall not be precluded from drawing up

in writing one or more preliminary or provisional reports in any way

he deems fit, but such reports shall not be the report referred to in the

Act and in these regulations.

(2) The notary’s report shall include a list of documents he has

compiled, his interpretation thereof and, depending on the reason why

the notary examined the title, his advice to the transferee on the

available courses of action, including the possibility of referring the

transferee to take further independent legal advice.

(3) Unless otherwise instructed by the transferee, the notary

shall provide with the report, and for no additional charge, a

photostatic copy of the documents compiled for the examination of

title, and in so far as applicable, of the following: inter vivos notarial

acts, wills and declarations according to the proviso to article 68(2) of

the Act, plans, Land Registry official searches and the certificates of

title and charge certificates issued by the Land Registry, testamentary

searches and the Public Registry official search certificates with the

list of numbers

Provided that the transferee may request the notary to provide

him also, at an additional cost, with a photostatic copy of all the notes

in the notary’s possession listed in the said official list of numbers.

(4) Without prejudice to the generality of the provisions of

sub-regulation (2)

(a) where the regulations specifically require the notary

to mention any facts which result from the searches; or

(b) where the notary is of the opinion that the searches

cannot be exhaustive in terms of these regulations and, or the

contract of engagement; or

(c)

where he has reservations about the searches,

he shall inform the transferee of his findings and his reservations in

the report and, where so required by these regulations, he shall advise

the transferee on the available courses of action including the

possibility of referring the transferee to take further independent legal

advice.

(5) The notary’s report shall be in two originals, both signed

and dated by him. One of the originals shall be given to the transferee

and the other, which shall be countersigned by the transferee, shall be

retained by the notary for five years from the date when it is so

countersigned or, if consequent to the examination of title a notarial

act is published in terms of article 84C(5) or (6) of the Act, from the

date of its publication.

(6) (a)

Payment of the notary’s fee for the examination of

title and for disbursements made in connection therewith shall be due

and payable to him in terms of the Act, its Schedule, these regulations

and, where applicable and subject to the foregoing provisions of this

paragraph, in terms of the contract of engagement, notwithstanding

that the final notarial act is not published for any reason.

(b) Until such time as the notary is paid the fee and

disbursements referred to in paragraph (a), he shall not be obliged to

submit his report to the transferee.

(7) The report shall be drawn up for the sole use of the

transferee and his legal advisor.

(8) (a)

Persons other than the transferee who rely on the

report or use it shall have no right of action against the notary for any

act or omission in the examination of title and the relative report.

(b) Without prejudice to the provisions of paragraph (a),

the notary may give his consent in writing to any person other than

the transferee to rely on the report or use it under such conditions as

appear appropriate to the notary in his discretion.

(1) Nothing in the report or in any statement made or Limitations of

document signed by the notary in connection with the report, the report.

including but not limited to the examination and, or review of any

additional documents and, or any other act that goes beyond the

obligations of the notary arising from the Act and these regulations,

shall be interpreted in such a manner as to widen the scope of the

report beyond that established in the Act and these regulations and, or

to widen the notary’s responsibility beyond that established in the Act

and these regulations, and as subject to the disclaimers and

limitations in the contract of engagement and, or in the report.

(2) Notwithstanding any law to the contrary, the notary’s

responsibility in connection with the examination of title and, or the

report and, or the immovable shall, in any case, be limited to the

provisions of the Act and regulation 13.

(1) The transferee who makes the declaration required Declarations.

in terms of the first proviso to article 84C(5) of the Act shall do so

after the notary explains to him the importance and consequence of

such declaration, and the transferee shall confirm that the notary has

given him such explanation. The notary shall record in the notarial act

the transferee’s declaration and confirmation.

(2) Where a notary is exempt from examining title in terms of

the second proviso to article 84C(5) of the Act he shall, with

reference to the applicable paragraph of regulation 4, explain to the

transferee the importance and consequence of such exemption, and

the notary shall mention in the notarial act that he has given him such

explanation.

(3) The transferee who confirms in terms of article 84C(8)(b)

of the Act that the notary has handed him the report shall also confirm

in his declaration that, together with the report, the notary has

provided him with the photostatic copies referred to in regulation

20(3), and the notary shall record his declaration in the notarial act.

(4) The transferee shall make the declaration required by

regulation 17(2) after the notary explains to him the importance and

consequence of such declaration and after the transferee confirms that

the notary has given him such explanation. The notary shall record in

the notarial act the transferee’s declaration and confirmation.

€1.26