Who chooses the notary? Can the seller, the estate agent or the developer impose one on me?

Question

José Manuel Alburquerque · Accepted Answer

If you buy from a developer, a bank or another business that sells flats in the ordinary course of business, you choose the notary, even if the contract says otherwise. If you buy from a private individual, the notary you agreed on stands and, if nothing was agreed, the choice belongs to whoever pays most of the notary's fees, which in Catalonia is usually the buyer. The estate agent can suggest a notary but cannot impose one on you. Choosing one notary or another does not change the official scale of fees (“arancel”), which is the same throughout Spain. What the notarial regulations say Anyone who uses a notary has the right to choose one. When two parties sign, as in a sale, the “Reglamento Notarial”, Spain's notarial regulations, says who chooses: If the seller is a person or a business that sells homes in the ordinary course of business, such as a developer, a bank or a fund, the buyer chooses. The same applies if the contract is one of those the business prepares on standard terms that are the same for all customers. It is the buyer's right and no clause in the contract can take it away. In other cases, such as a sale between private individuals, whatever the parties have agreed prevails. If nothing has been agreed, the choice belongs to whoever has to pay most of the fees. In Catalonia, unless otherwise agreed, the buyer pays for the deed, so in principle the buyer chooses. Notaries must respect that choice and cannot do anything to restrict it. In the rest of Spain the law splits the notary's fees differently between seller and buyer and it is more debatable who chooses if nothing has been agreed, so the sensible course is to put it in writing in the contract. The developer, the bank and the estate agent If you buy from a developer, you can choose the notary even if the contract already names one. The only limit is that the notary you choose must have a reasonable connection with the people signing or with the flat, for example by being in the town or city where the flat is or where one of the parties is. If you need a mortgage, you also choose the notary for the loan. Before that notary you will have to sign, at the latest on the previous day, a notarial record (“acta notarial”) in which the notary checks that the bank has given you the required information. The usual practice is to sign the purchase and the mortgage on the same day before that notary. The estate agent is not a party to the sale. It can suggest a notary but cannot impose one on you. If the deposit agreement (“contrato de arras”) it prepares for you already names one and you sign it, that is an agreement with the seller. If you want to choose, say so before signing it.