Notary Public Guide: Responsibilities, Excuses, and More
Excuses for Notaries
Notaries can be excused from acting on holidays or outside of office hours if the parties involved do not anticipate urgent matters. However, exceptions exist. Even on holidays or after hours, a notary must act in cases of extreme urgency or for wills of social or political interest. They must also act, without charging fees, for emergency wills that cannot be delayed.
Substitution and Notary Association
A notary may act personally or through a substitute partner.
Substitution
Substitution ensures continuous public service during a notary’s temporary absence. The law requires notaries to have a reciprocal substitution agreement with another notary. The designated substitute acts on behalf of the absent notary.
Time to Arrange Substitution
The substitution agreement should be finalized within 60 days of receiving the notary patent. If a substitute hasn’t been designated within this timeframe, one must be appointed within 15 days.
Substitution agreements are recorded in the General Legal and Legislative Studies, the Public Registry of Property and Commerce, and the College of Notaries.
Association
Two notaries can form a partnership to share a single protocol.
Term
Notaries can form or dissolve partnerships as needed.
Limitations
Partnerships are limited to two notaries within the same political district of Mexico City.
Absence of a Notary
Absence for 15 Days
A notary can be absent for up to 15 consecutive days, or alternating periods within a quarter or 30 days per semester. Written notice must be given to the General Legal and Legislative Studies.
Absence for One Year
A notary can request a leave of absence for up to one year. This leave can be waived if necessary to ensure adequate notary services in the territory, provided the notary has served for at least six months.
Indefinite Absence
If elected to public office (e.g., President, Governor, Congressman, Senator, Mayor), a notary can take an indefinite leave of absence.
Suspension of a Notary
Temporary Suspension
Temporary Suspension for Crimes or Disability
Causes for suspension include: involvement in intentional crimes against property, inability to perform duties, and other legally defined reasons.
A one-year suspension can be imposed as a penalty. This penalty can be repeated for relapses, incompetent performance, or refusal to provide required services.
Permanent Suspension
Death, resignation, and dismissal are grounds for permanent suspension.
Revocation or Cancellation of Patent
Notarial law outlines grounds for patent cancellation, revocation, or permanent loss, including removal, permanent dismissal, and nullification.
Grounds for revocation include:
- Failure to fulfill responsibilities as outlined by law.
- Express waiver.
- Failure to personally perform notarial functions according to regulations.
- Notorious dishonesty in the exercise of duties.
- Failure to maintain required security measures.
- Reaching 75 years of age and being deemed unable to continue by the relevant department.
Notary Association
The College of Notaries in Mexico City, founded in 1792, is the oldest in America and governs compulsory notary licensing.
Professional notary associations provide support, uphold professional values, defend interests, set pricing, offer training, manage advertising, and maintain high standards of probity and competence.
All professionals in Mexico City can belong to one or more associations (up to five per field). Each association is governed by a board consisting of a President, Vice President, two Secretaries, two Deputy Secretaries, a Treasurer, and an Assistant Treasurer, each serving a two-year term.
These associations also:
- Oversee the profession to ensure ethical and legal practice.
- Promote relevant laws, regulations, and amendments.
Structure of the Deed
The first element of a deed, sometimes called the preface or introduction, outlines the legal and contractual elements of the act.
- Place: Specifies the location of the act.
- Granting of the instrument.
- Compliance with obligations.
- Applicable law.
Place of Execution
Notaries must act within their designated jurisdiction. Acting outside this jurisdiction renders the instrument voidable.
Type of Inefficiency
This results in relative nullity due to non-compliance with legal formalities.
Affidavit
An affidavit is the written record of a notary’s activity.
Definition
It’s the original instrument where a notary records events they witnessed, entered into the protocol book, and authorized with signature and seal.
Classification of Notarial Acts
Affidavits are classified based on the nature of the activity documented:
- Passive activity.
- Active activity.
Classification for Teaching Purposes
- Notices, demands, protests of commercial paper, and other legal proceedings.
- Verification of identity, legal capacity, and signatures.
- Material facts (e.g., property damage).
- Collation of documents.
- Verification of drawings, photographs, and other documents.
- Document delivery.
- Declarations under oath.
- General facts, abstentions, states, and situations related to persons or things.
Professional Responsibility of a Notary
Notaries have professional responsibilities and can be held liable for damages caused by inefficiency, ignorance, or willful misconduct.
Liability
Liability can be contractual or extra-contractual, depending on the cause. Notaries are liable for damages and may face civil action.
Administrative Responsibility
Notaries can incur administrative liability for damages caused by violations of the law. Administrative sanctions include:
- Written warnings.
- Fines.
- Fee waivers.
- Permanent dismissal.
Criminal Responsibility
Notaries are subject to criminal law like any citizen and can be sanctioned for unlawful conduct.
Fiscal Responsibility
Notaries have fiscal responsibilities, acting as tax withholders. They must quantify and report taxes due on transactions they oversee. Failure to comply can result in tax evasion charges.
Notaries and taxpayers are jointly responsible for tax law compliance.
Registry Law
Concept of Registry Law
Registry law governs land registration, providing certainty and transparency.
Characteristics of Registry Law
- Public order.
- Protective and legitimizing.
- Regulatory.
Advertisement Registration
This provides public access to information on real and personal property.
Classification of Land Registration
- Advertising registrar notified: Notifies relevant parties of legal acts, preventing absolute nullity.
- Advertising declarative: Provides public faith in the rights of a person.
- Advertising constitutive registration: Establishes a legal fact with consequences for a specific person.
Definition of Notary Law
Notary law governs the organization, role, and function of notaries, including the formal theory of public instruments.
Purpose of Notary Law
To create public instruments.
Contents of Notary Law
The activities of notaries and parties involved in creating public instruments.
Civil Law
Civil law governs personal and economic relations between private and public persons and entities.
Principles of Mexican Registry Law
These principles are the foundation of the registry system.
Registration
Registration materializes the act, making it publicly known. The principle of public faith requires official actions to be documented.
Consent
Modifications or cancellations of registry entries require the consent of the registered owner or their successors, unless overridden by a court order.
Successive Tract
Only pre-registered transfers can be registered, ensuring a continuous chain of events.
Ex Parte Application
The registry acts upon request, except in cases of revocation. Individuals or authorities can request registration.
Priority
The first entry has priority, regardless of when the act occurred.
Legality
This principle highlights the connection between notarial and registry law.
Good Faith
All parties involved in notarial and registry acts must operate in good faith.
Entitlement
Only those with legal capacity and representation can register deeds. Cancellation can occur with the consent of the entitled parties or by court order.
Public Faith
Public faith in registry entries presumes the existence and validity of notarized acts.
Structure of the Public Deed
A public deed is divided into: Introduction, Background, Clauses, Representation, General Information, Certification, and Authorization.
Preface
The preface, or introduction, determines the elements of the act or contract, including:
- Place
Notaries must act within their designated jurisdiction. Acting outside this area renders the instrument voidable.
Place of Performance of Obligations
The place of performance is typically the address of the contracting parties, unless otherwise agreed upon.
Legislation Applied
Public acts, records, and judicial proceedings are generally valid across states within the federation.
- Date
The date is crucial for determining when the deed takes effect. Key dates include:
- Date of instrument.
- Date of signature.
- Date of preventive authorization.
- Date of final approval.
- Date of registration.
- People Involved
Key individuals include:
- Subject: The person whose estate is affected by the deed.
- Party: Individuals holding the same provision in a deed.
- Grantor: The person giving consent to the deed.
- Concurrent: A person present but not obligated by the instrument.
- Witnesses: Individuals who attest to the event. Types of witnesses include: witnesses of knowledge, essential witnesses, and witnesses of assistance.
- Qualification for the Content
The notary qualifies the legal action based on the parties’ expressed desires, although the internal will of the parties, as expressed in the act, takes precedence.
Background
This section describes the property, titles, and legal status relevant to the contract.
Clauses
Clauses specify the parties’ desires and the economic purpose of the contract. They must be grammatically and legally sound, adhering to principles of ownership, clarity, and precision.
Clause types include: essential, natural, accidental, and irrevocable.
1 Elements of the Deed
b) Place of fulfillment of obligations (as previously addressed).
Representation
Representation occurs when a person acts on behalf of another.
General Information
Notarized documents must include general information about the parties involved, such as name, date of birth, marital status, place of origin, occupation, nationality, and address.
Certifications
Certifications are the notary’s attestation to the authenticity and validity of the document.
Authorization
Authorization, either anticipatory or final, makes the document legally effective. Anticipatory authorization occurs upon signature by the parties. Final authorization occurs after fulfilling fiscal and administrative requirements.