Notaries occupy a special place in the world of legal profesionals in the Netherlands and in Curaçao, alongside attorneys-at-law (“advocaten”), bailiffs (“deurwaarders”) and tax advisors (“belastingadviseurs”). This is apparent first and foremost from the way in which a notary is appointed and performs his duties. Like an attorney, a notary is a legal professional with clients who pay for his advice and services, but like a judge, a notary is appointed by the government until the age of retirement at 65. The permanence of the appointment is designed to safeguard the independence of the notary.
The notary is independent and impartial. Unlike an attorney-law or other legal advisor, a notary does not act for just one party. Instead, in the Curaçao legal system, he is required to weigh up and balance the interests of all the parties to a legal transaction. A notary is, as it were, above the parties. For example when real property is conveyed a notary acts for both the seller and the buyer. He has a duty of secrecy in relation to his clients and has the right to withhold information in court, in the same way as an attorney-at-law, a doctor and a priest.
All notaries are law graduates. Not only are they experts in family law, succession law, corporate law and property law, but they must also stay abreast of certain aspects of tax legislation and case law in so far as they relate to these fields. If necessary, a notary may coordinate the activities of other legal professionals. However, a notary does not represent clients in court.
Apart from providing legal advice, a notary also records agreements, either because the law requires it or at the parties’ request. The formal document drawn up by a notary, which is known as a notarial instrument, constitutes definite proof that the date and the parties’ signature are correct. A notary is requested to retain the original instrument and to issue the parties with certified copies. A specially-endorsed copy, known as the “grosse”, provides conclusive evidence of title in the same way as a court judgment. It follows that the holder of a notarial instrument need not conduct legal proceedings to prove the authenticity of an instrument. By contrast, a deed drawn up by an English solicitor is not treated as an authentic document and cannot therefore be executed as such in Curaçao.
The law gives the notary the exclusive task to draw up deeds with regard to:
Last wills and testaments
Gifts of assets
Transfers of real estate properties
Splitting buildings in apartments
Public auctions of real estate
Establishing and cancelling of mortgages on real estate, registered ships an registered airplanes
The incorporation of legal entities, including limited liability companies (N.V. or B.V.), Foundations (“stichtingen”), Private Foundations (“stichtingen particulier fonds”), Associations (“verenigingen”),
The mergers and splitting of legal entities;
The conversion of legal entities into other legal entities.
Though not prescribed by law, other agreements are also drawn up by notaries, including living together contracts, partnerships and certifications of legal existence.
The notary also has to collect some taxes like a 4% transfer tax (“overdrachtsbelasting”) when transferring real estate and a two per mil (2o/oo) tax on the amount of the mortgages.
Legal fees of the civil law notaries
In Curaçao the fees of the notaries for the deeds are established by the Joint Court of Justice.
There are fixed fees for real estate transactions, mortgages and public auctions, and there are minimum fees for other deeds, such as partitions, prenuptial agreements, last wills and testaments.
Legal System of Curaçao
The legal system of Curacao is equal to the system of The Netherlands and the highest court of justice is established in The Hague, The Netherlands. The Curaçao civil law is almost equal to the Dutch civil law, with the exception of the Curacao corporate law. The Curacao corporate law is much more flexible than its Dutch equivalent and legal entities may be incorporated in the English and Spanish language.