The Civil Law Notary (“Notary”) has played a unique and distinctive role in the legal system in Aruba. This role is often misunderstood by foreign counsel not familiar with the Dutch Notary. This article is intended to give a brief overview of the role of the notary in Aruba.

The role and functions of the Notary is embedded in the National Ordinance of the Notaries (“Act”). In order to hold the title of Notary in Aruba one must be appointed by the Queen of the Dutch Kingdom, upon initiative of the Minister of Justice, after having obtained an advice/evaluation from the Common Court of Appeals of the Netherlands Antilles and Aruba. The appointment is for life and is similar to the appointment of judges and prosecutors. This is intended to protect their impartiality towards the public. A Notary is automatically discharged at the age of 60, upon which another Notary is appointed by the Queen. Based on the current legislation there are four (4) Notary seats for the territory of Aruba.

A Notary is required to have the highest standards of morale, a strong academic background and must be an expert in the laws relating to business, property, family, succession and related fiscal matters. Law schools in the Netherlands offer a special three (3) year curriculum for those desiring to be active in the practice of notaries. The Notary is usually assisted by a Candidate Civil Notary, who has a similar academic background but has not been appointed as Notary by the Queen. A Notary, unlike lawyers in the Dutch jurisdictions does not engage in (civil) litigation and is required to balance the interests of both (all) parties involved in a transaction or legal matter. For example, in the conveyance of real estate the Notary acts for both buyer and seller. That is why the Notary mediates between the parties, considering the interests of both the buyer and the seller. At the same time, the Notary is bound by client confidentiality.

A Notary in Aruba acts as an independent legal professional and has certain specific task as appointed by the Act. Some of these tasks include:
-          incorporation of limited liability companies, both on and offshore, as well as other legal entities such as foundations and associations;

-          amendment of articles of incorporation of legal entities;

-          conveyance of real estate located in Aruba;

-          creation and discharge of mortgages on real estate & aircrafts;

-          making or altering wills; and

-          legalization of signatures;

In addition to providing these tasks, the Notary is also - exclusively - involved in drafting certain legal agreements as required by the Act. Such a document is referred to as Notarial Deeds and provides certainty regarding the date and signature of the parties, as well as the contents of the Deed. The Notary is required by law to keep the original Notarial Deed on file. Upon retirement or discharge of a Notary these files are transferred to a different (or the new) Notary to ensure continuity and protect the interests of parties over time. Upon request of the parties concerned, the Notary can (or will) issue certified copies of the Deed. A certain copy (in a special form) called the “grosse” provides conclusive evidence of title in the same way as a court judgment would.

In commercial transactions the Notary is often used by parties to provide objective guarantees, which require research and (in some cases in depth) due diligence, for example, in the event of sale-purchase of shares, real estate property, aircrafts and complex financing structures.  In these cases counsel and clients should also bear in mind that the Notary has a legal and professional responsibility to ensure the accuracy of the work involved, for all parties, concerned. This (in some instances) could require extra due diligence over and beyond the work that has been done previously by counsel or clients involved.   In certain transaction the Notary is also often used to act as escrow agent.

The fees charged by the Notary are mostly regulated by law and are independent of the fees charged by the parties’ own lawyers. Special consideration should be paid to this aspect when the transaction in question will require the involvement of a notary. Counsels and clients should pay special attention to those Notary fees, which by law are based on the principal amount involved i.e. establishment of mortgages, since this could lead to unpleasant surprises and cause unnecessary friction between parties, especially considering the fact that the role of the Notary in Aruba differs so much from the role of a “notary public” in Anglo-Saxon jurisdictions, whose primary role is to notarize signatures and requires little or no special/legal training.

If you have any doubt on the role of a Notary and/or the need for involvement of a Notary contact your attorney or one of the four (4) notaries established in Aruba.

Note:
Although this article has been prepared carefully, it may only serve as a summary of the facts presented its contents should not be relied upon blindly. The text is intended only as an overview of fundamental regulations of the subject and as such may contain inaccuracies and simplifications in its description of the applicable laws, regulations and case law. Application of rules and regulations in each case are on account of special circumstances and it is recommended that advice of counsel be sought in dealing with the application of the law. The text content may be subject to change. For further information and details please contact our offices.
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