I. INTRODUCTION
By means of resolution of 6th November 2012, the General Directorate for Registries and Public Notaries (Dirección General de los Registros y del Notariado – DGRN) dismissed the appeal filed against the qualification issued by the acting land registrar in Vielha, which rejected the inscription of a public deed of a loan novation agreement with a mortgage guarantee because the public deed of appointment of the sole director of the company was not duly registered at the Companies Registry.
II. BACKGROUND
In the case at hand, a public deed is granted by the director of a company whose post is not registered at the Companies Registry, as notified by the notary public at the time of granting the public deed, even though the notary public issues his reasoned judgement.
Having consulted with the Companies Registry, the Registrar considers the lack of registration to be a defect.
The notary appeals and alleges that a valid act has taken place, and that the non registration of the post does not affect its validity, and cites case law in his favour from the DGRN regarding this point, which is binding for all registrars.
III. GROUNDS FOR THE JUDGEMENT
The DGRN acknowledges that the registration of the post in the Companies Registry is obligatory, but not a constituent element, and that the post is effective as from its acceptance; however, the appeal is rejected because in the identification, by the appellant notary, of the document by virtue of which the Director is appointed, the necessary information for qualifying the origin of the appointment is not mentioned, and consequently neither the validity, regularity and legitimacy of said post. This thus renders useless the presumption of validity and accuracy of what is being published by the Companies Registry at this time. The DRGN bases its judgement in article 98 of Law 24/2001 regarding notarial reasoned judgement, indicating that it is only required that the document from which the representation is derived is identified in the public deed and that the notary issues the appropriate judgement, and it is not required that all of the circumstances contained in the document are set forth so that the registrar may evaluate (for a second time) the legitimacy of the appointment.
Said details are not required because it is the notary (who actually sees the document) to whom the law confers the responsibility and obligation of evaluating the representation, precisely in order to avoid, as was occurring previously, two reasoned judgements (or reasoned judgement, as well as qualification) and duplicated procedures.
According to the above, we may conclude that in this matter the DGRN has shifted from its own doctrine and the law, given that the appointment of directors is effective as from acceptation of the post and therefore the non – fulfilment of registration obligations does not in itself determine the invalidity or inefficiency of the duties performed by the administrator before registration takes place.
Vilá Abogados
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9th of April 2013
