Notary Liability: Your Rights in the Event of Mortgage Problems

Questioner

I bought an apartment, but it now turns out that there is a mortgage on it, while the deed of sale states: delivered free of mortgage. The notary reported it to his liability insurance and they do not want to pay out. Now I have to buy back my own apartment from the mortgage holder, otherwise it will be auctioned. What can I do about this, what are my rights?

Lawyer

The notary must ensure that the property is delivered free of mortgage. If this is not done (properly), he acts carelessly and is therefore liable. It is unclear why his insurer does not pay out. You can therefore hold the notary liable for the damage that you incur or will incur as a result of the repurchase. For more information or assistance, you can contact me directly free of charge.

Lawyer

Apparently you have already rightly held the notary liable. Normally the notary's liability insurance should pay out. If the insurer does not pay out, the notary must pay himself. You can file a complaint against the notary with the Royal Notarial Professional Organization. There is a complaint form on the KNB website. I can also help you further if you want.

Lawyer

The fact that the notary's insurer does not provide cover does not release him from his liability towards you. In any case, he is obliged to compensate the damage that you have suffered as a result of his shortcoming. You must formally address the notary to this end by holding him liable in writing and by registered letter, if this has not already been done. If desired, I am happy to assist you in this matter. Please feel free to contact me without obligation and free of charge if you have any questions or require legal assistance.

Lawyer

I advise you to initiate summary proceedings also to prevent the return of your own real estate. I am happy to help you at a very reduced rate -

Lawyer

The notary's insurer will probably not pay out because he has not been held liable by the correct party. The notary's deductible may also play a role here. The buyer/questioner can only hold the seller liable because the seller must deliver free of mortgages and attachments, which could be done in summary proceedings, as Mr Albersen proposes. The seller can then in turn hold the notary liable because the latter failed to arrange for the cancellation of the mortgage. The buyer/questioner cannot hold the notary liable directly for this. If the notary is held liable by the seller, the insurer will probably pay out (while still taking into account the notary's deductible). Furthermore, I agree that a complaint against this notary should certainly be filed via the KNB.