By: Garland M. Baker B.
Exclusive to A.M. Costa Rica
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Why does the Costa Rican judicial system not do more to protect the rights of citizens and foreigners against fraudsters and swindlers? Especially, when it comes to property fraud.
A case in point is the Dirección Nacional de Notariado, the national notary directorate that is part of the Ministerio de Justicia y Paz. That translates to the ministry of justice and peace in English. The national registry is part of the same organization. It has not increased the legal dues to its membership since 1998. Dues were enacted by Law 7764 to be accumulated into a fund, in part to protect innocent people from the wrongdoings of its members. Including, but not limited to, property fraud transactions.
Currently, the organization is giving out ID numbers in the range of 17,000 for new notaries, but there are only around 10,000 practicing today. They must pay 7,016 colons per month, or about 13 dollars at today’s exchange rate. As of today, 970 are past due on their dues. This amount sums up to an estimated $107,000. On average, past due notaries are behind eight quotas. This is a startling. A full list can be found at the Dirección Nacional De Notariado website.
Until recently, even past due notaries have been able to carry out their functions without too much difficulty. The problem is that some professionals are crooked. They have been involved in scams where they have notarized forged signatures of living and dead people to transfer property illegally.
Becoming a notary is an additional step when studying law in Costa Rica. An attorney does not have to be a notary to practice law in this country, but a notary needs to be an attorney. Notaries are persons legally empowered to witness and certify the validity of documents. They also prepare affidavits referred to as “actas.”
Almost every legal document in Costa Rica is prepared by a notary and put in his or her “actas” book, called a “protocolo.” This is because a Costa Rican notary has public faith given to them by the country. They earn this status by going to law school, passing tests and for notaries, doing additional work for two years. In other words, because of their power, whatever they transcribe is the legal binding truth to the best of their knowledge.
The notary for a historical record sends these “actas” to the national archive from time to time. They are not registered in the national registry, as many people believe. What is filed there is a testimony of the notary.
Allan Garro, of Garro Law, did an extensive study and found the Dirección Nacional de Notariado is not adhering to the law in his opinion. He feels this contributes to some notaries practicing the profession that would not be doing so if notary dues adhered to the original law.
He stated in an interview that Law 7764 was enacted on November 22, 1998. Notary dues were tied to the base salary of an office worker, class one. The law stated that the dues would not be more than one-twelfth of the base salary per month. In 1998, the salary was 84,200 colons, thus the monthly dues for a notary would have been one-twelfth of that amount or 7,016 colons. Unbelievably, it has not changed in 16 years and stands at that amount today.
“The law is clear,” he said. “Notary dues should be indexed to the base salary, just like many other types of payments and fines.” “Today, the base salary is 399,400 colons and notaries should be paying 33,283 per month. They are not paying their fair share to help curb notary fraud,” he added.
Garro feels many property frauds could be curbed if the notary directorate charged what they should be charging as mandated by the law because it could keep the crooked ones from practicing. He may be correct, many of the cases that have reached court have included a notary involved that was either suspended or in arrears with their dues.
In theory, the maximum payout out of the bond fund is 200 basic salaries. Currently, a basic salary is 399,400 colons as stated above or at the current exchange rate of 535 colons to the U.S. dollar, $745. This means the payout could be as much as $149,000.
However, the directorate is using 84,200 colons for its base, or $157. A notary working sixteen years only has $2,512 paid in. The fund is managed by the Banco de Costa Rica, so with interest the total is around $6,000. A far cry from what could be there if due were indexed as they should be. The fund would be much larger than it is today and could contribute to paying people who were wronged or lost a substantial amount of money due to a bad apple in the membership.
Indexing is the way Costa Rica keeps many amounts like tax fines pegged to a metric to solve problems with inflation. The metric used here is a “salario base” or base salary. The sixty-four dollar question is why do most other organizations with amounts calculated based on this metric keep them current, but the Dirección Nacional De Notariado does not.
Garro’s argument may be a good one. If 10% of notaries are past due and suspended because of non-payment of their dues, how many would not be practicing if dues were increased from 7,016 to 33,283 colons. This is a 400% increase. Would there is less crooked notaries forging signatures? Everything else has increased. What should notaries get a special deal?
Article first published in A.M. Costa Rica on November 3, 2014.
