A civil law not­ary is hold­er of a pub­lic office to whom state author­ity is con­ferred in order to draw up pub­lic deeds. The not­ary hereby ensures authen­ti­city, pro­bat­ive force, and enforce­ab­il­ity of such doc­u­ments. He is obliged by law to be impar­tial and object­ive and enjoys pub­lic faith. Not­ari­al deeds have a spe­cial evid­en­tial value before courts and author­it­ies and can be just as enforce­able as final court rul­ings. In addi­tion, the not­ary offers a com­pre­hens­ive range of leg­al ser­vices, not only tak­ing into account the pos­sib­il­it­ies of civil law struc­tur­ing, but also the fisc­al side of the process.

Duties

The not­ary must draw up not­ari­al deeds in agree­ment with the parties involved. The impar­tial and neut­ral advice of our cli­ents always takes centre stage. The not­ary informs the parties about pos­sible con­tent arrange­ments and their dif­fer­ent leg­al con­sequences, work­ing towards a bal­anced solu­tion and in par­tic­u­lar aim­ing to pro­tect the eco­nom­ic­ally weak­er or less exper­i­enced con­tract­ing party.

There is an oblig­a­tion to act for the not­ary. This means that a not­ary may not refuse an offi­cial act. Excep­tions are only giv­en if he him­self or his rel­at­ives are involved in the mat­ter – and of course in pro­hib­ited trans­ac­tions or fake or cir­cum­ven­tion trans­ac­tions. The not­ary may also not become act­ive if there is unlaw­ful dis­crim­in­a­tion against a third party or if a party is obvi­ously not leg­ally competent.

The not­ary is sub­ject to spe­cial con­trol and strict dis­cip­lin­ary rules.

Principles

Inde­pend­ence
While being a hold­er of a pub­lic office, a not­ary is still inde­pend­ent from the state and exer­cises his pro­fes­sion in his own name and on his own account. He is not sub­ject to gov­ern­ment orders..

Neut­ral­ity
A not­ary is – like a judge – obliged to be impar­tial. He does not uni­lat­er­ally rep­res­ent the interests of a cli­ent, but must work towards bal­anced leg­al and con­trac­tu­al rela­tion­ships in order to avoid con­flicts in advance and to cre­ate secure leg­al relationships.

Pub­lic Faith
The not­ary is entrus­ted with spe­cial tasks in the admin­is­tra­tion of justice. What the not­ary con­firms in his pub­lic deeds has spe­cial pro­bat­ive value.

Con­fiendi­at­l­ity
The not­ary and his employ­ees are bound to secrecy towards every­one. This duty of con­fid­en­ti­al­ity applies in prin­ciple to all mat­ters that become known in the course of the exer­cise of a notary’s pro­fes­sion. Inform­a­tion may only be passed on to third parties with the express con­sent of all parties involved.

Secur­ity
It a not­ary accepts money, deeds or doc­u­ments as escrow agent (trust­ee), he is sub­ject to spe­cial guidelines and fur­ther­more offers insur­ance pro­tec­tion with­in the frame­work of the man­dat­ory pro­fes­sion­al liab­il­ity insur­ance. The pro­fes­sion­al prac­tice of the not­ary is con­trolled by the Cham­ber of Not­ar­ies with­in the frame­work of its stat­utory duty of supervision.

The Difference

The not­ary does not stand for or against a party, but always for the law. He helps those involved to obtain their rights, pre­vents dis­putes, and medi­ates in cases where com­prom­ises are deemed more suc­cess­ful than court rul­ings. For this reas­on, the not­ary is entrus­ted with sov­er­eign tasks which are oth­er­wise reserved, for example, for the courts. What is done by a not­ary is done well. Much of a notary’s work is there­fore nev­er really vis­ible – and that is a good thing. After all, it is and remains their noblest task to exon­er­ate the courts – not to employ them.

Public Deeds

The draw­ing up of pub­lic deeds is the core task of the not­ary. Pub­lic deeds can be:

• Not­ari­al Deeds
  Not­ari­al deeds serve to record leg­al declar­a­tions and leg­al transactions.
• Cer­ti­fic­a­tion of leg­al facts
  This includes leg­al­isa­tion – i.e. the con­firm­a­tion of the authen­ti­city of a sig­na­ture; cer­ti­fic­a­tion – i.e. the con­firm­a­tion that a copy cor­res­ponds to the ori­gin­al; life testi­mony – i.e. the con­firm­a­tion that a per­son is alive, etc.
• Not­ari­al minutes/protocols
  These are, for example, the minutes of share­hold­ers’ meet­ings. In a not­ari­al pro­tocol the not­ary cer­ti­fies the leg­ally rel­ev­ant facts which were per­ceived by him.

Pub­lic deeds are con­sidered to be the most reli­able evid­ence of the “authen­ti­city” and “accur­acy” of a doc­u­ment. For good reas­on, it is a leg­al require­ment that the not­ary must be involved in a num­ber of transactions:

Civil Law
Endow­ment con­tracts without actu­al trans­fer, inher­it­ance and com­puls­ory por­tion waiver con­tracts, cer­tain con­tracts between spouses, con­tracts reg­u­lat­ing in advance the dis­tri­bu­tion of mat­ri­mo­ni­al sav­ings and res­id­ence between spouses in the event of divorce, con­tracts between registered part­ners reg­u­lat­ing in advance the dis­tri­bu­tion of sav­ings and res­id­ence in the event of dis­sol­u­tion of the partnership.

Cor­por­ate Law
Most import­ant are the Art­icles of Asso­ci­ation and stat­utes of com­pan­ies, share trans­fer agree­ments of shares in lim­ited liab­il­ity com­pan­ies and agree­ments in con­nec­tion with the reor­gan­iz­a­tion of cor­por­a­tions. In addi­tion, there are sev­er­al oth­er cases in which a not­ari­al pro­tocol is man­dat­ory: for example, in res­ol­u­tions to amend Art­icles of Asso­ci­ation; in the form­a­tion of stock cor­por­a­tions and their gen­er­al meet­ings.
Examples from more recent times, for which the legis­lat­or has declared a not­ari­al deed man­dat­ory: The declar­a­tion of found­a­tion for the estab­lish­ment of a private found­a­tion, and the declar­a­tion of con­sent to med­ic­ally assisted repro­duc­tion (arti­fi­cial insemination).

Cer­ti­fic­a­tions
With almost every deed that is the basis for an entry in the land register, the sig­na­tures of the con­tract­ing parties must be authen­tic­ated – judi­cially or not­ari­ally. Sig­na­tures must also be cer­ti­fied for numer­ous applic­a­tions to the Com­pan­ies Register. The iden­tity veri­fic­a­tion provided with each cer­ti­fic­a­tion forms the basis for the qual­ity and secur­ity of the land register and com­mer­cial register.

Enforce­ab­il­ity
Not­ari­al deeds can be designed in such a way that they can form the basis of a leg­al enforce­ment as an exe­cu­tion instru­ment: as an enforce­able not­ari­al deed. This means that it can be ensured even when a leg­al rela­tion­ship is first estab­lished that there will be no dif­fi­culties in enfor­cing the law at a later date. An Aus­tri­an not­ari­al deed can also be executed abroad.

On Behalf of the Court

One of the most import­ant tasks of the not­ary is to act as the rep­res­ent­at­ive of the court (as a court com­mis­sion­er). As such, the not­ary ful­fils jur­is­dic­tion­al tasks and exer­cises sov­er­eign author­ity. The most fre­quent and most import­ant task of a “court com­mis­sion­er” is to con­duct pro­bate proceedings.

Pro­bate pro­ceed­ings
The not­ary, as a court com­mis­sion­er, not only car­ries out all import­ant pro­ced­ur­al steps such as the record­ing of death, the receipt of declar­a­tions of accept­ance of the inher­it­ance, the list­ing of assets or par­ti­cip­a­tion in and advice on inher­it­ance agree­ments. He also pre­pares drafts of all court decisions.

As a court com­mis­sion­er, the not­ary is obliged to con­sult with all parties involved (in par­tic­u­lar heirs, bene­fi­ciar­ies of the com­puls­ory por­tion and leg­atee). He must inform them object­ively and com­pre­hens­ively of their respect­ive rights and oblig­a­tions and he is also obliged to pro­tect their rights in pro­bate pro­ceed­ings. He obtains all neces­sary inform­a­tion, in par­tic­u­lar from banks, insur­ance com­pan­ies, hos­pit­als, and from the land and com­pany register.

The com­pre­hens­ive duty of instruc­tion towards all parties, which the not­ary act­ing as Court Com­mis­sion­er has to ful­fil, often goes bey­ond inher­it­ance law. The not­ary does not only take care of the of the pro­bate pro­ceed­ings. On behalf of the court or the heirs, he also car­ries out the pro­bate res­ult in the Land Register. At the request of the heirs, the not­ary also car­ries out a cal­cu­la­tion of the real estate trans­fer tax in order to facil­it­ate rap­id entry in the land register.

It is hardly known that not­ar­ies handle about 20% of all inher­it­ances free of charge. The law requires the pro­ced­ure even if there is no estate.

Land register and com­pan­ies’ register
The land register enables any­one to elec­tron­ic­ally inspect the cur­rent own­er­ship struc­ture and encum­brances of build­ings or land. The com­pany register provides inform­a­tion about the leg­al rela­tion­ships of com­pan­ies and con­trib­utes to cre­at­ing leg­al cer­tainty in busi­ness life. The land register and the com­mer­cial register are main­tained in the form of elec­tron­ic data­bases. As a court com­mis­sion­er, the not­ary pre­pares offi­cial cer­ti­fied extracts from the land register or com­mer­cial register, con­firm­ing the authen­ti­city of the extract and its contents.

On behalf of the citizens

The not­ar­ies are exper­i­enced con­sult­ants and prudent com­pan­ions in the draft­ing and exe­cu­tion of con­tracts in all fields of law.

Private deeds
Not­ar­ies also draft private doc­u­ments. This is the case when neither a not­ari­al deed nor a not­ari­al pro­tocol is required for leg­al declar­a­tions and leg­al trans­ac­tions. In this field, the not­ary is in com­pet­i­tion with oth­er leg­al advis­ory professions.

The strict reg­u­la­tions of the Aus­tri­an Not­ar­ies Act also apply when draw­ing up private deeds. For example, the not­ary is obliged to instruct all parties and must ensure a fair bal­ance of interests between the parties to a contract.

Pur­chase, endow­ment, or han­dover
The not­ary draws up pur­chase con­tracts for real estate (in which he also reg­u­larly acts as an escrow agent/trustee), dona­tion and han­dover con­tracts, res­id­en­tial prop­erty con­tracts, con­tracts for the divi­sion of land, deeds grant­ing or delet­ing land register rights, and much more. The advice of the not­ary as a neut­ral con­tract drafter is of great advant­age, espe­cially with pur­chase con­tracts, in order to avoid the dis­ad­vant­age of the weak­er con­trac­tu­al partner.

Land register entries
The  activ­ity of the not­ary in real estate trans­ac­tions is not lim­ited to the draft­ing and cer­ti­fic­a­tion of deeds. It also includes applic­a­tions to the land register. The not­ary obtains all per­mits required for the exe­cu­tion of con­tracts, e.g. from the land trans­fer author­ity, from the court of appeal or the guard­i­an­ship court.

Share­hold­ers’ Agree­ments, Art­icles of Asso­ci­ation
One of the most import­ant tasks of the not­ary is to advise on the estab­lish­ment of com­pan­ies and part­ner­ships. When set­ting up and found­ing a com­pany, the not­ary does not only draw up the basic con­tract. He also takes care of report­ing to the tax office, arranges for pay­ment of taxes and fees and applies to the com­pet­ent court for entry in the com­mer­cial register.

Com­pan­ies’ Register entries
In case of changes in exist­ing com­pan­ies, the not­ary drafts all the neces­sary applic­a­tions and takes care of all the steps up to the change in the com­pany register. Thanks to dir­ect access to the elec­tron­ic com­pany register and land register, the not­ary is always up to date on all import­ant leg­al data of the com­pan­ies and prop­er­ties registered there.

Mar­riage and Part­ner­ship
In the field of fam­ily law, clas­sic mar­riage con­tracts are no longer in high demand in today’s not­ari­al prac­tice. Instead, mar­riage agree­ments are con­cluded today which main­tain the leg­al status of the sep­ar­a­tion of prop­erty as far as pos­sible in the event of divorce. In addi­tion to mar­riage, there are now more and more part­ner­ships. These are not reg­u­lated by law and can in fact be dis­solved at any time. This is why the need for fair con­trac­tu­al arrange­ments is par­tic­u­larly high here, for example with regard to pro­vi­sion, hous­ing rights, asset shar­ing and inher­it­ance law. The not­ary helps to draw up a con­tract which pro­tects the eco­nom­ic and leg­al interests of both partners.

Adop­tion
An adop­tion is executed by a writ­ten con­tract between the adop­ter and the adop­ted child. The adop­ted child is thus leg­ally equal to the nat­ur­al child. The valid­ity of an adop­tion requires court approv­al, so the not­ary takes care of all the neces­sary steps – from draw­ing up the adop­tion con­tract to obtain­ing court approval.

Divorce set­tle­ment
The not­ary advises both spouses as an object­ive advisor, helps to reach an agree­ment and sum­mar­ises this in a set­tle­ment which is sub­mit­ted to the divorce judge.

Inher­it­ance Law
Primar­ily due to his exper­i­ence as a court com­mis­sion­er, the not­ary is a spe­cial­ist in mat­ters of inher­it­ance law. This includes the draft­ing of wills and oth­er test­a­ment­ary dis­pos­i­tions, their safe­keep­ing and regis­tra­tion in the Aus­tri­an Cent­ral Register of Wills as well as the draft­ing of con­tracts of inher­it­ance and com­puls­ory por­tions. The draft­ing of a will does not only require a cer­tain form, but it must also be ensured that the orders are unam­bigu­ous and actu­ally achieve what the author of the will has inten­ded. The involve­ment of a not­ary in the draft­ing of a will can only be recom­men­ded to any­one. This is all the more true as the costs are low and often insig­ni­fic­ant in rela­tion to the assets to be inherited.

Pro­bate pro­ceed­ings
Even when the not­ary is not act­ing as a court com­mis­sion­er, he can still rep­res­ent the heirs at the request of the parties. The not­ary can also be author­ised by all heirs to carry out the pro­ceed­ings in writ­ing as the heir’s author­ised representative

Health Care Proxy
A health care proxy serves to provide for the case in which the pro­cure­ment of cer­tain affairs is no longer pos­sible due to lack­ing busi­ness, judge­ment ‚or state­ment capa­city. It is gran­ted as long as the prin­cip­al is still able to act and con­tract. The health care proxy des­ig­nates and author­ises a trus­ted third party to take care of the trans­ferred mat­ters. The not­ary helps to draft such a proxy and estab­lishes it in the required form.

As Escrow Agent/Trustee

As trustee,the not­ary receives assets (money, mon­et­ary assets) or deeds in escrow from the trus­tor on the basis of an escrow agree­ment. He under­takes to bring about the leg­al con­sequences set out in the agree­ment and to ful­fil the respect­ive con­di­tions. The Not­artreuhand­bank (NTB) is our own spe­cial bank for the hand­ling of escrow funds. Raif­feis­en Zen­t­ral­bank Öster­reich AG and Uni­Cred­it Bank Aus­tria AG are jointly and sev­er­ally liable for any loss incurred by the Not­artreuhand­bank, provided that the stat­utory depos­it guar­an­tee does not apply anyway.