According to the case law, a notary has no duty to search for encumbrances unless expressly instructed to do so under Article 22 of the Notaries and Notarial Practice Act (Supreme Court of Cassation Order No. 19 of 19 May 2015 in civil case No. 15\/2015, Civil College, and Decision No. 239 of 14 January 2015 in civil case No. 4762\/2014). According to the authority cited in that order, there is no general duty for the notary to make an enquiry at the Registry Office (Decision No. 1490 of 22 December 2008 in civil case No. 5178\/2007, Fourth Civil Division, Civil College).<\/p>\n
In practice, the notary is not required on their own initiative to check whether the property being transferred is mortgaged or subject to other encumbrances. The duty arises only on express instructions. The notary then acts under Article 22 by making the enquiry and obtaining a document for the parties (Kr. Dimitrov, Notarial Proceedings, Sofia: Ciela, 2018, p. 54).<\/p>\n
The literature also suggests that the notary has a duty in this respect, while the same source says that the notary may merely point out to the parties the need for and possibility of such a check (Mariela Pavlova, \u201cOn certain duties of the notary in transactions involving rights in rem\u201d, Property and Law, 2012, No. 5, p. 52).<\/p>\n
The courts have held that the notary has no such duty either (Supreme Court of Cassation Order No. 1410 of 9 December 2013 in civil case No. 3480\/2013, Fourth Civil Division, Civil College).<\/p>\n
An interesting question of statutory language arises from Article 25(2) of the Notaries and Notarial Practice Act. Its reference to one type of check, namely whether a protective measure has been imposed under the Counter-Corruption and Unlawfully Acquired Assets Forfeiture Act, can be read as implicitly excluding other types, including checks for other encumbrances.<\/p>\n
This article is not a legal opinion or legal advice concerning a particular situation or person. For assistance with purchasing property or checking it for encumbrances, consult a lawyer specialising in property law.
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