A civil-law notary can be liable if they breach their duty of care and you suffer damage as a result. Not every undesirable consequence of a deed is a professional error. The engagement, your intention, the information that was available and the duty to investigate and warn must be considered together.
What was the notary’s task?
The civil-law notary has an independent position when preparing and executing deeds. Their task may include checking identity and authority, investigating the intention of the parties and explaining the legal consequences. The scope differs depending on the type of deed and the specific situation.
Where there are complex tax or financial consequences, it may be relevant whether further advice was needed and whether a warning was given about that. A notarial deed does not mean that every commercial or tax outcome is guaranteed. Examine which risks the notary had to assess themselves and which had been entrusted to another adviser.
Examples of possible errors
- Failing to record an agreement correctly in a deed.
- Insufficient investigation of authority or representation.
- Insufficiently explaining an essential legal consequence.
- Failing to deal carefully with a recognisable problem concerning a transfer of property, a mortgage or security.
- Careless handling of funds or payment instructions.
With a will or an estate, the position of third parties and the intention of the testator often also play a role. The mere fact that an heir receives less than expected is not proof of careless conduct by the notary.
Can the error still be remedied?
Ask for an explanation promptly and have it examined whether the error can be remedied. A rectification deed may require the cooperation of other parties. The rights of third parties or tax consequences may also limit the possibilities for remedying the error. Before any changes are made, make clear what went wrong and keep the original deed, drafts and instructions.
The possibility of remedying the error does not always rule out damage, but it may limit its extent. Think of necessary additional costs for deeds or disadvantage during the intervening period. Have the costs of work that was planned anyway distinguished from additional remedial costs.
Damage and causation
Establish what would have happened if the notary had acted with due care. Would a different deed have been signed, would a transaction have been postponed or would you have refrained from the agreement? Your original instructions and the feasibility of that alternative are important. Coming up with a more favourable outcome in hindsight is not enough.
Also check who suffered the damage and who can bring a claim. With companies, heirs and joint transactions, that can be more complicated than it seems at first sight.
Complaint to the Chamber for Notarial Discipline (kamer voor het notariaat)
A disciplinary complaint concerns the practice of the profession. For compensation, a different route may be needed. Depending on the case, a disputes scheme may also be relevant; check the conditions and jurisdiction. Keep an eye on the civil time limits separately from the complaints procedure.
Which documents should you bring?
- Engagement letter, general terms and conditions and invoices.
- Signed deeds, drafts and accompanying explanations.
- Your instructions and messages about your intention.
- Relevant registers, transaction and financing documents.
- A description of the possible remedy and the additional costs.
Frequently asked questions
Is an error in the deed always the notary’s fault?
No. Examine which instructions were given, which checks were needed and what the notary should reasonably have noticed.
Can I bring a claim as a third party?
That depends on the duty of care owed to you and the circumstances. Having an engagement of your own is not decisive in every situation.
Does the estate agent also play a role?
That is possible, but their task is different. See liability of the estate agent and, for tax damage, liability of the tax adviser.
Source
Notaries Act (Wet op het notarisambt), including on the practice of the office and disciplinary law.
Time limits, costs and your next step
Report the suspected error in good time and in concrete terms. A complaint and interrupting the limitation period are different acts. For claims for damages, a period of five years after actual awareness of the damage and of the liable person often applies, but special rules and other time limits may apply. Have the time limit for your own file checked.
Responsible lawyer: Onur Arslan. Contact us with a brief description and any urgent deadline. Discuss in advance the scope and costs of the investigation, possible expert costs and litigation risks. Recovery of all costs is not guaranteed.
See also the general professional liability guide for a step-by-step plan, a file checklist and an explanation of damage, causation and complaints procedures. Legal basis: Book 7 of the Civil Code (duty of care), Book 6 of the Civil Code (compensation and the duty to complain in time) and Book 3 of the Civil Code (limitation and interruption).
