Cap. 55 Art. 84CNotary may examine title.

(1) A notary is empowered to compile documents conducive to establishing both the title to an immovable property and the causes of preference among creditors affecting such title.

He has the right to interpret the compiled documents and give advice thereon. In this Act, this process of compilation, interpretation and advice is referred to as "the examination of title" or cognate expressions.

(2) Without prejudice to his responsibility in terms of this article, the notary shall have the right to delegate any or all of these powers to persons he deems trustworthy.

(3) The examination of title shall be carried out in terms of regulations made under this article.

(4) A notary may examine title whenever he is instructed to do so by a written contract of engagement whose requisites shall be laid down by regulations.

(5) A notary who publishes a notarial act of transfer of ownership of immovable property or other real rights over such property shall be deemed to have been instructed by the transferee to examine its title: Provided that the transferee may, by an express declaration recorded in the notarial act, exempt the notary from the obligation imposed on him in terms of this sub-article or limit the extent of such obligation in any way the transferee deems fit:

Provided further that regulations may list the instances where a notary shall be exempt from examining the title, and the notary shall mention in the act that he is so exempt: Provided further that regulations may list the instances where and the conditions under which a notary may refuse to examine title, and the notary shall mention in the act all the relevant details.

(6) Where a notary publishes a notarial act containing a transaction other than the transfer of ownership of immovable property or other real rights over such property, or where he authenticates a private writing containing a transaction referring to such property, his obligation to examine title shall arise if, and to the extent that, specific regulations are made with regard thereto.

(7) Notwithstanding the provisions of this Act or any law:

(a) a notary’s responsibility for the examination of title shall be regulated by, and be strictly interpreted according to, this article and the regulations made thereunder;

(b) where a notary examines title he shall exercise the diligence required by the regulations referred to in paragraph (a);

(c) where he examines title in terms of the regulations, he shall be deemed to have acted with due diligence;

(d) only the following persons may bring an action against a notary in connection with the examination of title which he has carried out:

(i) the person with whom he has entered into a contract of engagement in terms of sub-article (4),

(ii) the transferee referred to in sub-article (5), or

(iii) the persons indicated in regulations which may be made in terms of sub-article (6).

(e) Where a notary is deemed to have been engaged to examine title by the transferee or has been engaged to examine title by any person, the said Notary may not, without the prior consent of the transferee or person who engaged him, be questioned on any matter in reference to the said examination of title, or on a property title report, or on any communication related thereto, nor may the notary be constrained to produce any document which is not available publicly, or to disclose in any manner a matter or information which may have come to the knowledge of the notary in professional confidence or in his professional capacity.

(8) (a) Where a notary receives instructions in terms of sub-article (4) or where he is bound to examine title in terms of this article, he shall inform the transferee in any manner, including through verbal communication, of those facts and findings resulting from the searches and those reservations which he is specifically required to mention in terms of the regulations made under this article.

(b) Unless the transferee has already made a declaration in terms of the first proviso to sub-article (5) exempting the notary from examining the title, or where the notary records in the act in terms of the second proviso thereto that he is exempt from examining title, or the notary records in the act in terms of the third proviso thereto that he is authorized to refuse to examine title, the notary shall be deemed to have been instructed by the transferee to examine title.

(9) The notary shall be the owner of the documents he compiles for the examination of title and shall preserve them for a period of five years. Such period shall run from the date agreed upon in the contract of engagement or if no such date was agreed upon from the date of the contract of engagement or in default from the date of the deed where the examination was made in terms of sub-article (4), and from the date of publication of the act where the examination was made in terms of sub-articles (5) or (6) and, in the case of a private writing referred in sub-article (6), from the date it is authenticated by the notary.

(10) An action brought against a notary by a person mentioned in sub-article (7)(d) alleging any act or omission of the notary regarding the examination of title shall be barred by the peremptory term of five years which starts running from the dates mentioned in sub-article (9).

(11) Nothing in this article shall preclude the notary from being engaged only to compile any of the documents referred to in sub-article (1), or to interpret or give advice on such documents which he or a third party has compiled, but this shall not be deemed to be the examination of title as defined in this article. Such a service shall be regulated by an contract of engagement made in ad hoc terms of regulations made under this article.

(12) The Minister responsible for notarial affairs shall from time to time make regulations, after consulting the Notarial Council, prescribing any matter referred to in this article including, but not limited to:

(a) the manner in which and the extent to which a notary examines title;

(b) the exemptions from the obligation to examine title, and the instances where and conditions under which a notary may refuse to examine title;

(c) the applicability or otherwise of this article both to notarial acts containing transactions other than the transfer of ownership of immovable property or other real rights over such property, and to transactions referring to such property made by a private writing authenticated by a notary;

(d) services analogous to but short of the examination of title in terms of this article;

(e) the degree of diligence required of the notary;

(f) the formalities of a contract of engagement; and

(g) the facts and findings resulting from the examination of title and the reservations which the notary is required to mention to a transferee.