LECTURE No. 25. Certification of transactions

1. The concept of transaction certification

A notary is authorized to certify transactions for which the legislation of the Russian Federation and the republics within the Russian Federation establishes a mandatory notarial form. At the request of the parties, the notary may certify other transactions.

Transactions are actions of citizens and legal entities aimed at establishing, changing or terminating civil rights or obligations. Civil law distinguishes between unilateral and bilateral transactions. A unilateral transaction is considered to be a transaction, for the conclusion of which, in accordance with the law, other legal acts or agreement of the parties, it is necessary and sufficient to express the will of one party. To conclude a contract (bilateral transaction), it is necessary to express the agreed will of two parties or three or more parties (multilateral transaction).

Article 163 of the Civil Code of the Russian Federation establishes that notarial certification of the transaction is carried out by making on a document expressing its content and signed by the person or persons making the transaction, or persons duly authorized by them, an acknowledgment inscription by a notary or other official entitled to perform such a notarial act.

Transactions with land and other real estate are subject to state registration in the unified state register by institutions of justice. Failure to comply with the notarial form and the requirement for state registration of transactions entails its invalidity.

If one of the parties has fully or partially executed a transaction requiring notarial certification, and the other party evades such certification of the transaction, the court shall have the right, at the request of the party that performed the transaction, to recognize the transaction as valid. In this case, subsequent notarization of the transaction is not required.

Compared to the previous civil legislation, the list of transactions subject to mandatory notarization has now been significantly reduced. These include, in particular: a will (Article 1124 of the Civil Code of the Russian Federation); a power of attorney for transactions requiring a notarial form (clause 2, article 185 of the Civil Code of the Russian Federation); an annuity agreement and its variety - a life maintenance agreement with a dependent (Article 584 of the Civil Code of the Russian Federation); assignment of a claim based on a transaction made in a notarial form, both on the basis of the requirements of the law and at the request of the parties (clause 1 of article 389 of the Civil Code); transfer of a debt based on a transaction made in a notarial form, both at the request of the law and at the request of the parties (Article 391 of the Civil Code of the Russian Federation with reference to clause 1 of Article 389 of the Civil Code of the Russian Federation); marriage contract (clause 2, article 41 of the Family Code of the Russian Federation of December 29, 1995 No. 223 - FZ); an agreement on the payment of alimony (Art. 10 °CC RF) and other transactions.

Before certifying a particular transaction, the notary is obliged to explain to the parties the meaning and significance of the draft transaction submitted by them and to check whether its content corresponds to the actual intentions of the parties and whether it contradicts the requirements of the law. Explaining the legal consequences of transactions made by citizens, the notary acts as a professional disinterested and impartial adviser, providing the participants in the transaction with equality of their rights and protection of interests.

When certifying a transaction, a notary or a person substituting him must verify the legal capacity or legal capacity of its participants.

2. Certification of certain types of transactions

The fundamentals of the legislation of the Russian Federation on notaries establish the rules for the following types of transactions:

1) contracts for the alienation and pledge of property subject to registration. These contracts can be certified subject to the submission of documents confirming the ownership of the alienated or mortgaged property. Ownership of real estate can be confirmed by a certificate of ownership, a certificate of ownership of land, a notarized contract for the sale of an apartment, house, land and other real estate, donation, exchange, a certificate of inheritance, a certificate of ownership of a share in the common property of the spouses or other documents. These documents must be marked with state registration, since the ownership of buildings, structures and other real estate subject to state registration arises from the moment of such registration. The pledge agreement must specify the subject of the pledge and its valuation, the amount and term of fulfillment of the obligation secured by the pledge, as well as an indication of which party has the pledged property. The text of the transaction should indicate the type of right (property right, right of lifetime inheritable possession, permanent perpetual use, economic management, operational management and easements). When an object is in the common shared ownership of several persons, the corresponding sizes of shares must be indicated in the document;

2) agreements on the construction of a residential building, alienation of a residential building and other immovable property. These contracts are certified at the location of the property or at the place of allotment of the land plot. The notary needs to check the compliance of the agreement with the legislation governing the right of citizens to build residential buildings (for example, the land must be fenced in accordance with the project). The agreement shall be accompanied by a decision on the provision and transfer of ownership of a land plot for individual housing construction, a certificate of ownership of the land plot, an act on the allocation of land for the construction of an individual residential building with the named buildings, a plan for placing buildings on the land plot, a project for the construction of a residential building;

3) wills. The notary certifies the wills of capable citizens drawn up in accordance with the requirements of the legislation of the Russian Federation and the republics within the Russian Federation and personally submitted by them to the notary. Certification of this transaction through representatives is not allowed. When certifying wills, testators are not required to provide evidence confirming their rights to the bequeathed property, since a will is an act of will of a person who establishes the legal procedure for the transfer of all or part of his property to certain persons. The will must be drawn up in writing, indicating the place and time of its preparation and signed personally by the testator in the presence of a notary. The will is drawn up, signed by the testator and certified by a notary in two copies, one of which is transferred to the testator, and the other remains in the files of the notary's office and is kept in the order according to the nomenclature of cases. According to paragraph 2 of Art. 1124 of the Civil Code of the Russian Federation in the case when, at the request of the testator or in cases specified by law, when drawing up, signing, certifying a will or when transferring a will to a notary, witnesses are present, they cannot be such witnesses and cannot sign a will instead of the testator: a notary or other person certifying the will; a person in whose favor a will is drawn up or a testamentary refusal is made, the spouse of such a person, his children and parents; citizens who do not have legal capacity in full; illiterate; citizens with such physical disabilities that clearly do not allow them to fully realize the essence of what is happening; persons who do not have sufficient command of the language in which the will is drawn up, except for the case when a closed will is drawn up. In the event of receiving a notice of the revocation of a will, as well as receiving a new will that cancels or changes a previously drawn up will, the notary makes a note about this on the copy of the will kept by the notary and in the register of registration of notarial actions. This notice must also be notarized;

4) powers of attorney. A power of attorney is a written authorization issued by one person to another person for representation before third parties. According to the content of powers, they distinguish: general (general) powers of attorney, providing for the commission of various transactions, special ones - imply the authority to perform a number of homogeneous legal actions, one-time - provide the opportunity to make only one transaction. A notary has the right to certify powers of attorney on behalf of one or more persons, in the name of one or more persons. A power of attorney issued by way of substitution is subject to notarization upon presentation of the main power of attorney, in which the right of substitution is stipulated, or upon presentation of evidence that the representative under the main power of attorney is forced to do so by force of circumstances to protect the interests of the issuer of the power of attorney. The power of attorney is valid for the period specified in it, which cannot exceed 3 years. A power of attorney issued by way of substitution must not contain more rights than those granted under the main power of attorney, and cannot exceed the validity period of the power of attorney on the basis of which it was issued.

The number of copies of documents that set out the content of a transaction certified by a notary is determined by the persons who applied for a notarial act, but cannot exceed the number of parties involved in the transaction. Only the will and agreements on the pledge of property, the construction of a residential building, the alienation of a residential building and other real estate are provided to the notary in at least two copies, one of which remains in the affairs of the notary's office. At the request of the person who applied for a notarial act, the notary shall accept for safekeeping one copy of the said documents.

Author: Nevskaya M.A.

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