EXAMINATION OF TITLE REGULATIONS

SUBSIDIARY LEGISLATION 55.06

EXAMINATION OF TITLE REGULATIONS

1st January, 2013 *

LEGAL NOTICE 355 of 2012, as amended by Legal Notice 157 of 2018.

The title of these regulations is the Examination of Title

Regulations.

In these regulations, unless the context otherwise requires

"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

*see regulation 1(2) of these regulations, as originally promulgated.

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;

"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;

(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.

A notary shall ipso iure be exempt from examining the title

t o a n i m m o va bl e w hi c h is t h e su bj e c t -m a tt e r o f a ny of t he

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 or the Church, 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

r e g u l a t i o n s o r i f t h e n o t a r y ha s e n t e r e d i n t o a c o n t r a c t o f

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 inform the transferee of the limitations of

such search and the provisions of sub-regulation (3) of regulation 3

shall be observed.

(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 Registry (Inspection and Searches) Regulations the

online update is not considered to be official

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 thirty 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 inform the transferee and shall advise him 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 four 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 inform the transferee and shall advise him 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 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 all 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 to the

transferee.

Where the immovable has devolved by intestate succession

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

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 i n titl e prio r to the com ing in to fo rce of these

regulations.

A testamentary search consists of the official extract of the

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

the 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

concession to which there is an exact reference in the Public

Registry 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 the notary shall be

bound to inform the transferee that it is advisable to obtain a copy of

the act of emphyteutical concession.

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 in accordance with the provisions of

sub-regulation (3) of regulation 3.

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 four 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 a ground rent burdening immovable property

was redeemed against the correct dominus;

(b) 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;

(c) whether the immovable is built according to the plans

forming part of the development permit;

(d) whether it is in conformity with building laws and

regulations;

(e) whether it is compliant with energy performance or

similar regulations;

(f)

whether it is compliant with any environmental

obligation, of whatever nature;

(g) whether it is covered by trade and operation licences;

and

(h) whether it is structurally sound.

(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.

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.

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

advocate or legal procurator who has assumed the obligation of

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

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 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 out this matter to the

transferee 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.

(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).

(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

d a t e w h e n i t i s s o c o u n t e r s i g n e d o r, i f c o n s e q u e n t t o t h e

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 sub mit hi s findings and/or reservat ions in term s of sub-

regulation (1) or the report mentioned in sub-regulation (2), as the

case may be, to the transferee.

(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.

(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

r e c o r d i n t h e n o t a r i a l a c t t h e t r a n s f e r e e ’s d e c l a r a t i o n a n d

confirmation.