We invite you to read the column written by our senior associate, Nicolás Cruz, and associate, Ruth Zúniga, from the Civil Litigation and Arbitration Group, in which they analyze the Notarial Reform, its strengths, and the aspects that still need improvement.
A few days ago, Congress approved the bill that modifies the registry and notarial system, introducing relevant changes to the organic statute of such institutions, establishing a new mechanism for appointing notaries and registrars based on the knowledge and skills of the applicants for the position and on objective selection criteria, closing the gaps of opacity that have been strongly questioned by public opinion in recent years.
Other important changes have also been made to strengthen the institutional framework of notaries, determining their liability for any damage they may cause in the exercise of their public function and the guarantees they must maintain in order to be liable for such damage.
Thus, it is provided that notaries shall be civilly liable not only for the breach of their obligations and duties, but also for the acts performed by persons dependent on their notary’s office in the exercise of their functions and for the acts of the substitute notary.
Similarly, a new regulation is established regarding the bonds or guarantees that must be provided in order to respond quickly and effectively to fines and damages awarded against them due to the performance of their duties and, more importantly, a legal consequence is established in the event that they are not provided, consisting of the declaration of vacancy of the position.
Special attention should be paid to the rule that provides that the provisions contained in the law on consumer rights protection shall apply to both registrars and notaries, providing users with an effective mechanism to demand timely and proper performance of the services offered.
Notwithstanding these important changes, we believe that a valuable opportunity was missed to address a growing problem, which, if not quickly curbed, could put strain on our entire registration system.
We are referring to fraudulent sales and registrations of real estate, without the knowledge of the legitimate owners, which in many cases are carried out thanks to the low or non-existent identification measures of some notary offices or the cooperation of notary officials to complete the sales without the owner’s consent.
Thus, although the amendments introduced undoubtedly represent an effort by our legislators to strengthen and make the system more transparent, the sale and disposal of Chileans’ assets require greater rigor in their granting.
In this regard, technological tools for biometric recognition and advances in AI can be of great help, but it is well known that notaries are opposed to using them, which in itself represents a real challenge. Although they resist, it is a debate that will not disappear in the immediate future.
Column written by:
Nicolás Cruz | Senior Associate Civil Litigation and Arbitration Group | ncruz@az.cl
Ruth Zúniga | Associate Civil Litigation and Arbitration Group | rzuniga@az.cl
