People resort to the services of a notary in various situations. If an interested person considers that the notary’s actions were performed incorrectly, a complaint can be sent to the court. How to challenge the actions of a notary?
Definition
According to the Fundamentals of Legislation of the Russian Federation, notaries perform notarial acts.
- contract confirmation;
- issuance of a certificate of ownership;
- appointment and cancellation of the ban on seizure of property;
- evidence of compliance of photocopies with original documents;
- correct translation of documentation from one language to another;
- execution of executive signatures;
- acceptance of securities for deposits;
- making protests on bills of exchange;
- providing evidence.
Legislative acts also provide for other actions.
Duty of a notary
When a notary performs a notarial act, his responsibilities include:
- Determining the identity of the citizen who asked for help.
- Verifying the authenticity of the signatures of the parties to the transaction.
- Verification of documents.
- If there are legal grounds, do not accept the documents and postpone the action.
- An explanation of the procedure for appealing your refusal.
- Statement of refusal in writing.
- Verification of payment of duties to the state.
- Registration of notarial act.
In any case, the notary’s duties include maintaining the secrecy of the notarial act.
Sequence of consideration of the case
The actions of a notary can be appealed in several ways - pre-trial and judicial.
In the first case, the problem is resolved ahead of schedule - a complaint is filed against the notary to a higher authority. This may be the regional notary chamber or justice authorities.
In the second case, the plaintiff goes to court. The application must be submitted at the location of the notary's office. The applicant must provide evidence of violation of rights.
Reasons for refusal
It happens that a notary refuses to perform any action. There must be reasons and legal grounds for this. For example, documents contain errors or are not truthful, the demands are made by an incapacitated person.
Even if the refusal has legal grounds, the notary is obliged to record the refusal in writing and inform the client of the possibility of appealing such a decision.
Within 10 days, he is obliged to provide an order regarding the action taken.
Reasons why a notary has the right to refuse to perform an action:
- the execution of the action is contrary to the law;
- the action must be performed by another notary;
- an incapacitated person made a demand;
- the contract does not comply with legal requirements;
- the documentation is drawn up incorrectly and contradicts the law.
Other reasons are not grounds for refusal.
Resolution
The document is an extract from the resolution refusing to perform notarial acts. When drafting it, all the nuances are taken into account, since it will be the main document in court.
The resolution shall indicate:
- date, place and details of the notary who made the decision;
- date of application of the applicant and his data - citizenship, registration, etc.;
- characteristics of the case that was requested;
- reasons for refusal (with reference to the regulatory document);
- conditions of contestation.
The resolution must be drawn up within 10 days. Issued in 2 copies– for the customer and the notary.
What the law says
In accordance with Article 254 (Part 1) of the Civil Procedure Code, an individual or legal entity has the right to appeal in court the action (inaction) of a notary if his rights are violated. The procedure for appealing a notarial act is contained in Chapter 37 of the Code of Civil Procedure.
Article 310 (Part 2) of the Civil Procedure Code sets the deadline for filing an application with the court - 10 days. According to Article 132 of the Code of Civil Procedure, in addition to the complaint, it is necessary to attach documents proving the violation of the right.
Where to complain?
If a person is not satisfied with the work of a notary, you can complain about him. There are certain authorities for challenging – the Chamber of Notaries, the Prosecutor’s Office, the court.
Notary Chamber
You can file a complaint with this authority if a notary is assigned to the chamber. The complaint is made in the form of a statement of the established form. The document is written in person in the Chamber. There you can also write an application for service by another notary, however, this requires compelling reasons and justification for your complaint.
The Notary Chamber must consider the complaint within 30 days and make a decision.
If after this time there is no result, the Chamber must explain this and indicate the period for considering the complaint. Based on the results of the received application, the actions of the notary are checked.
When considering a case, the Notary is guided by the regulations of the Ministry of Justice, legislative provisions, and local acts of notarial chambers. If the complaint is approved, the chamber makes a decision - to perform the action or transfer it to another notary for execution.
Prosecutor's office
The Prosecutor's Office is allowed to file a complaint in cases where there are doubts about the legality of the notary's actions. Based on the document, the Prosecutor's Office conducts an inspection and makes a decision.
Court
A person goes to court if he is not satisfied with the decisions of previous authorities. Any notarial action or inaction can be challenged.
How to file a complaint
A complaint is a statement in the prescribed form.
There are requirements for drawing up the document:
- at the top right side indicate the name of the authority to which the complaint is being filed (in full);
- Write the applicant’s personal information below;
- the title of the complaint must reflect the essence of the problem (for example, the notary’s refusal to perform actions);
- then follows the text of the problem - the essence of the appeal is stated, dates, names and other necessary data are indicated;
- it is necessary to list the documents that are submitted with the application and serve as evidence;
- At the end, put the signature of the plaintiff.
It is drawn up in several copies - for the court and for the applicant. It is also allowed to submit a document simultaneously to several authorities.
You will have to pay a fee to the state. For individuals it is 300 rubles, for legal entities – 6 thousand rubles. Limitation period for filing a complaint – 3 years.
Preparing an application to court
The subject of the application to the court is the incorrect performance of the notary’s actions or refusal to do so.
When a document is sent to court, the following is taken into account:
- Subordination - the application is submitted at the location of the notary. The court that will hear this case is the district court.
- Submission deadline – 10 days after refusing to take action. If the deadline is missed, you can ask the court to reinstate it.
- Individual – those persons whose rights have been violated have the right to submit an application. If a person’s rights are affected, but the refusal did not come to him personally, a complaint cannot be filed.
- Form of refusal - if the notary refuses the client, he is obliged to formalize the refusal in writing. This requirement cannot be violated; it is regulated by law.
The same documents are submitted to the court as were provided to the notary.
Appealing notarial actions
It is necessary to try to resolve the problem before trial. The procedure is confirmed by a reasoned refusal from the notary, a response from the applicant and a written decision on the refusal.
The legislation provides for the possibility of challenging the actions of a notary in court. It does not matter whether the mistake was made accidentally or intentionally.
The notary does not act as a defendant, but as a third party.
The application is submitted to the district court. The case is being considered in a special manner. The parties are the applicant and the interested citizen. An applicant is a person who goes to court to challenge the action (refusal to perform an action) of a notary and is the initiator of a civil case.
What needs to be proven?
The subject of proof comes from the basis on which the person was refused to perform a notarial act.
It is necessary to prove the illegality or groundlessness of the grounds that the notary indicated in his decision. The burden of proof lies with the applicant. The notary is obliged to prove the legality of his refusal.
Consideration of the application
The application is considered by the judge alone. The object of the appeal is a notarial act or refusal to perform it.
You can only challenge an action or inaction.
The notary's rudeness, slowness in considering the case and other qualities are appealed to the justice institution.
Applications are considered at open meetings. If interested parties do not appear at the meeting, this does not prevent the consideration of the case. If the complaint is justified, the court decides to take the action that was refused.
The court's decision
Based on the results of consideration of the complaint, the court makes a decision. If the application is granted, the notary will be obliged to perform the action that was appealed. This decision can be appealed in the manner prescribed by the Code of Civil Procedure.
Within a month, this decision can be appealed to the Court of Appeal.
The notary can oppose the application, appealing it and declaring it illegal. If the court approves the complaint, the notary's appeal will be rejected. He will have to perform the action. If the applicant provides little evidence, the notary's appeal may be approved.
Arbitrage practice
Judicial practice shows that most often notaries refuse to perform an action on legal grounds. During the consideration of the applications, the judges do not find errors and reject the claim. Notaries who perform a contested action take part in the case, acting as third parties.
If the notary performed the action correctly, without making mistakes, then the court will not find him guilty. For the notary, such a decision does not entail any consequences. If the action is declared invalid, the notary will be obliged to compensate for all damages.
In judicial practice, there are often disputes regarding the invalidation of a transaction with a notary. When considering cases, notaries' mistakes do not go unnoticed.
Thus, if the notary refused to perform the action, this fact can be appealed. To do this, an application is submitted to the court. You must attach the required documentation and evidence of violation of your rights. The applicant has the right to demand restoration of rights and compensation for moral and material damage. Deadline for filing a complaint – 10 days.