Examination of Title (Amendment) Regulations, 2018

L.N. 157 of 2018

NOTARIAL PROFESSION AND NOTARIAL ARCHIVES ACT

(CAP. 55)

Examination of Title (Amendment) Regulations, 2018

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

Notarial Profession and Notarial Archives Act, the Minister for

Justice, Culture and Local Councils has made the following

regulations:-

The title of these regulations is the Examination of Title Citation.

(Amendment) Regulations, 2018 and they shall be read and construed

as one with the Examination of Title Regulations, hereinafter referred S.L. 55.06.

to as "the principal regulations".

In regulation 2 of the principal regulations, the definition Amends

regulation 2 of

"report" shall be deleted.

the principal

regulations .

Sub-regulation (3) of regulation 3 of the principal Amends

regulation 3of

regulations shall be amended as follows

the principal

regulations.

(a)

in sub paragraph (b) thereof, the words "enter into

such contract," shall be substituted by the words "enter into such

contract; or";

(b)

immediately after paragraph (b) thereof, there shall

be added the following new paragraph

"(c) by an agreement in writing entered into

between the Notary and the transferee or by a written

declaration signed by the transferee, which written

agreement or declaration may be recorded in the relative

notarial act;

When the agreement to modify these regulations

reached between the notary and the client in the manner

stipulated in this sub-regulation is not recorded in the

relative notarial act, the contract of engagement, the

written agreement referred to in this sub-regulation, or the

transferee’s written declaration shall be retained by the

Notary for five years from the date of signing 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.".

In paragraph (d) of regulation 4 of the principal regulations

immediately after the words "Government of Malta" there shall be

added the words "or the Church".

Regulation 7 of the principal regulations shall be amended

as follows

(a)

in paragraph (b) of sub-regulation (1) thereof the

words "in his report" shall be deleted and immediately after the

words "such search" there shall be added the words "and the

provisions of sub-regulation (3) of regulation 3 shall be

observed.";

(b)

(i) in sub-regulation (2) thereof the words

"official." shall be substituted by the words "official:"; and

(ii) the words "The notary shall in his report

inform the transferee of the limitations of such update:"

shall be deleted;

(c)

in sub-regulation (3) thereof the words "twenty

one" shall be substituted by the words "thirty"; and

(d)

in sub-regulation (5) thereof, immediately after

paragraph (b) thereof the words "the notary shall mention this in

his report and shall advise the transferee on the course of action

he could take," shall be substituted by the words "the notary

shall inform the transferee and shall advise him on the course of

action he could take,"

Regulation 8 of the principal regulations shall be amended

as follows

(a)

in sub-regulation (2) thereof the words "two

months" shall be substituted by the words "four months";

(b)

in sub-regulation (4) thereof "the notary shall

mention this in his report and shall advise the transferee on the

course of action he could take," shall be substituted by the

words "the notary shall inform the transferee and shall advise

him on the course of action he could take,"; and

(c)

in sub-regulation (5) thereof, the words "in his

report" shall be deleted.

Regulation 9 of the principal regulation shall be amended Amends

regulation 9 of

as follows

the principal

regulations.

(a)

in sub-regulation (3) thereof there shall be added

the word "all" before the word "documents"; and

(b)

in sub-regulation (6) thereof the words "in his

report" shall be substituted by the words "to the transferee".

Sub-regulation (2) of regulation 12 of the principal Substitutes

regulation 12 of

regulations shall be substituted by the following

the principal

regulations.

"(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 the notary shall be bound to inform the

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

emphyteutical concession.".

In regulation 13 of the principal regulations, the words Amends

"from the report" shall be substituted by the words "in accordance regulation

the principal

with the provisions of sub-regulation (3) of regulation 3.".

regulations.

In regulation 14 of the principal regulations, the words Amends

regulation 14 of

"two months" shall be substituted by the words "four months".

the principal

regulation.

Regulation 15 of the principal regulations shall be Amends

regulation 15 of

amended as follows

the principal

regulations.

(a)

in sub-regulation (1) thereof there shall be added

the following new paragraph (a)

"(a) whether a ground rent burdening immovable

property was redeemed against the correct dominus;";

(b)

paragraphs (a) to (g) thereof shall be renumbered as

paragraphs (b) to (h) thereof; and

(c)

sub-regulation (2) thereof shall be substituted by

the following

"(2) Where the immovable is situated in a building

or complex, the provisions of this regulation shall apply

mutatis mutandis to the building or complex as a whole

and the notary shall not be bound to peruse the terms and

conditions applicable to the other units within the same

building or complex even if such terms and conditions

result from the searches compiled in accordance with these

regulations.".

Regulation 16 of the principal regulations shall be

substituted by the following

Where the official Public Registry or Land

Registry searches refer to an inter vivos act regarding the

immovable or to a 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 an unofficial copy of an act or

will obtained from the Office of the Notary to

Government shall be deemed to be an authenticated copy

for the purpose of these regulations and a notary who

relies on an unofficial copy of an act including the

documents annexed thereto, or will, obtained from the

Office of the Notary to Government, shall be considered

to have acted with due diligence for the purposes of the

Act and these regulations

Provided further that after the death of one of

the testators, the notary may obtain an authenticated

extract of an unica charta will containing all the

testamentary dispositions of the deceased testator instead

of a complete copy thereof, but 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.".

13. Regulation 18 of the principal regulations shall be

amended as follows

(a)

in the proviso of sub-regulation (3) thereof the

words "the notary shall point this matter out in his report" shall

be substituted by the words "the notary shall point out this

matter to the transferee"; and

(b)

in sub-regulation (4) thereof the words "these

regulations and the contract of engagement" shall be substituted

by the words "these regulations, the contract of engagement"

and immediately after there shall be added the following new

words ", and the written agreement or declaration referred to in

sub-regulation (3) of regulation 3.".

14. Regulation 19 of the principal regulations shall be Substitutes

substituted by the following

(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.

(2) 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-regulation (1) shall mutatis

mutandis apply.

(3) 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 engaging 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).".

15. Regulation 20 of the principal regulations shall be Substitutes

substituted by the following

(1)

After the notary has examined the

title

(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 and/

or the written agreement or declaration referred to

in sub-regulation (3) of regulation 3; or

(c)

where he has reservations about the

searches, he shall inform the transferee of his

findings and his reservations 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.

(2) For the purposes of sub-regulation (1), the

notary may draw up a report in writing, which report

shall be in two originals both signed and dated by him,

one of which 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. The report shall be drawn up for the sole use

of the transferee and his legal advisor and 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, provided that 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.

(3) (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 findings and/or

reservations in terms of sub-regulation (1) of this

regulation or the report mentioned in sub-regulation two

of this regulation, as the case may be, to the transferee.".

16. Regulation 21 of the principal regulations shall be

substituted by the following

(1)

Nothing in any statement made by the

notary in whatever form, whether verbal or otherwise, or

in any document signed by the notary, or in the report

referred to in sub-regulation (2) of regulation 21,

including but not limited to the examination and, or

review of any additional documents and/or generally 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 notary’s

responsibility beyond that established in the Act and

these regulations and/or to widen the scope of the

notary’s findings and/or the report referred to in sub-

regulation (2) of regulation 20 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 written agreement or declaration referred to

in sub-regulation (3) of regulation 3 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.".

17. Regulation 22 of the principal regulations shall be Substitutes

regulation 22 of

substituted by the following

the principal

regulations.

(1)

The transferee who makes the

declaration required 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: provided that if the notary

explains to the transferee the importance and

consequence of such exemption but fails to record such

fact in the notarial act, the notary shall not be presumed

to have been engaged to examine title.

(3) 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.".

€0.72