Impartial legal counsel in real estate conveyances : the Swedish broker and the latin notary
Sammanfattning: Real estate conveyances are accomplished differently and by different players across Europe. The European Union houses four basic regimes, related to the classical “legal families”: 1) The Latin-German notary regime, where the public notary plays the central role, 2) the partly deregulated Dutch notary regime, 3) the lawyer/solicitor regime, prevalent on the British Isles, where conveyances are traditionally accomplished by solicitors, and 4) the Nordic regulated real estate broker regime. The comparative studies that have been conducted with respect to these regimes have focused on the economic impact—with particular regard to transaction costs—of regulation, particularly that concerning the Latin-German notary profession. The studies, while having great merit, are incomplete insofar as they fail to properly take into account, inter alia, the legal framework of the respective regimes and the functions performed by the key players. The present dissertation examines, compares, and analyzes the nature and scope of the non-litigious legal counsel that buyers and sellers of real estate can expect to receive—without hiring lawyers to represent them—under the Latin-German regime and the Swedish regime. To that end, the Swedish real estate broker and the Latin notary are examined and compared with respect to the role they play in real estate conveyances and their duty to give counsel to the contracting parties. The study is conducted in two steps: first a general overview of the professions’ duties and roles, followed by a more detailed juxtaposition of their duty to counsel. The first part comprises Sweden and nine notary regime countries: Argentina, Belgium, Brazil, France, Germany, Mexico, Portugal Puerto Rico, and Spain. The second part focuses on Sweden and France. The two professions share two main traits: a duty of impartiality and a duty to counsel. The duty to counsel of the Swedish broker and the French notary are strikingly similar and consists in four sub-duties: 1) to conduct verifications to ascertain facts, 2) to disclose relevant information, 3) to give adequate advice, and 4) to draw up all necessary deeds in a manner that is tailored to the instant transaction. The duty of impartiality and the duty to counsel amount to a specific function in real estate conveyances, common to both professions—namely that of impartial counsel. The desirability of the different regimes can be assessed and discussed from several perspectives, including but not limited to the economic perspective. In general terms, a regime can be said to be desirable if the produced utility exceeds the costs. The question is how to properly measure utility and costs. In limiting studies to such factors as can be readily measured, mainly pecuniary costs, one obtains an incomplete picture since there may be utility and costs that remain unaccounted for. For instance, the extent to which the state should interfere in the marketplace is not merely an economical issue but also an ideological issue. How does one account for ideologically conditioned utility and costs? One way to obtain more solid information is to study the regimes’ institutional robustness; that is, their ability to produce the desired results. For instance, harmful incentives for key players such as brokers and notaries may have an adverse effect on the performance of their assigned functions. Future research should focus on these issues.
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