GUEST POST: COVID-19 - Practical Outlook on impact on Promise of Sale Agreements, Notarial and other related matters.
Dr. Ruth A. Antoncich LL.D [Notary Public]
Dr. Ruth A. Antoncich was appointed Notary Public & Commissioner for Oaths in 2010. She has set up her private practice & operates independently from her office in Birzebbuga, Malta.
Suspension of Legal Times relating to Promise of Sale Agreements, Notarial and other related matters.
As of the 16th March 2020, the Superintendent of Public Health has ordered the closure of all courts or any courts, for the purpose of guarding against and, or controlling dangerous epidemics or infectious disease. As a result, Legal Notice 75/2020  has brought into effect the suspension of the running of all the legal terms imposed on a Notary Public by law:
These terms shall be suspended whilst the Order for Closure is in force without the need of any signatures or formal renewals by the parties and the suspension shall last until twenty (20) days following the repeal of any such order by the Superintendent.
Below, a few frequently-asked questions are answered in order to put minds at rest.
1. I am currently on a promise of sale agreement to buy/sell property, what happens now?
This Legal Notice has suspended the running of time of the agreement without any need of signatures or formal renewals by the parties. Thus, once the Order for Closure is lifted, all terms shall resume 20 days after such lifting of the order. It is important to note that the Legal Notice speaks of a suspension of legal terms and not an extension. It is incorrect to simply add on 20 days to the expiry date of the promise of sale agreement. By way of example, therefore, if a promise of sale is to expire on the 30th May 2020, one is to count the number of days between the 16th March 2020 and the 30th May 2020 (75 days) and add a further 20 days, but only once the order for closure is lifted. This would mean that the final deed of sale would need to be published by the 95th day from when the Superintendent of Public Health declares the opening of Courts.
It must be noted that Notaries are still able to carry out work related to the file (such as ordering and vetting searches, submitting land registry site plans etc) as the relevant Government Departments are (at time of writing) still functioning remotely albeit with skeleton staff. Work has definitely slowed down but is continuing.
With regards to the publications of contracts Notaries are following the health authorities' recommendation of extended social distancing, in the greater interest of public health, and therefore are only publishing contracts which cannot be delayed. The signing of contracts electronically or remotely is not yet possible in Malta and thus are deemed to have no binding effect on the parties.
2. I wish to enter into a Promise of Sale Agreement but do not wish to meet the sellers/buyers in person, can we sign the agreement electronically/remotely?
No. As stipulated in the Electronic Commerce Act (Chapter 426 of the Laws of Malta), agreements pertaining to transfers of immovable property and real rights are not legally binding in electronic form.
3. I have inherited property and I need to sign a deed of Declaration Causa Mortis within 6 months from the date of death of my relative, in order to get the €250 rebate on succession duty. Can the deed be published?
This term has also been suspended by virtue of Legal Notice 75/2020 and thus deeds of Declaration Causa Mortis can wait to be published until after the Order for Closure is lifted. It is still possible for the Notary to order testamentary searches and submit the necessary paperwork for the banks to release the funds of the deceased.
4. Is it still possible to have my will published?
Yes, wills are still being published, however the Notary must follow the health authorities' recommendation of extended social distancing to ensure the safeguarding of public health. The testator will be asked to discuss his/her testamentary wishes over the phone or through video conferencing in order to minimize physical contact, and the Notary may also ask the testator to provide two witnesses (instead of the Notary bringing them). The actual publication of the will cannot take place online or remotely and thus the Notary and the two witnesses must be physically present (standing the recommended 2 metres apart) in order for the will to be published and signed by the testator/s, witnesses and Notary. Although the Notary still has the possibility of registering the will with the Public Registry, the term within which such registration must take place is currently suspended and hence the Notary may opt to register the will once the Order of Closure is lifted.
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