Naujienos

2018

2'14

Vytautas Nekrošius: notaries paying „kick-backs” shall be fired

“Kick-backs” paid by notaries to real estate (RE) developers and brokers in return to clients is an established practice in Lithuania. The notarial self-governance authority hired mystery shoppers in order to uncover such practices, then summoned wrongdoers to explain their behaviour, but illegal agreements are common.
According to Professor of the Faculty of Law at Vilnius University (VU) Vytautas Nekrošius, notaries giving “kick-backs” shall be fired.
“Notaries are bound by administrative or criminal liability – just as civil servant are. Such practices have features of corruption; so we have to sit with relevant public authorities, to draw a clear roadmap and once and for all get rid of the people who believe their colleagues are stupid and who discredit the notarial profession”, said Prof. Nekrošius to ELTA.
Impeccable notarial reputation and liability is emphasised during legal studies, at universities. However, some of the notaries stumble over the wish to earn extra euro, Prof. Nekrošius said.
“I have a very simple solution here – people of this kind may not serve as notaries”, the researcher of law, co-author and reformer of the Civil Procedure Code of the Republic of Lithuania said.
According to ELTA, a very simple scheme has been used for many years: some notaries agree with real estate developers and brokers for a certain percentage (usually, 10-20% from the notarial charge) to take their clients to notaries who kick-back for the service in “black money”.
According to Paulius Murauskas, project coordinator at Transparency International Lithuania Chapter, undeclared payments in cash for a service is not a legal activity.
“Legal acts require impeccable reputation and integrity from notaries. Undeclared payments in cash obviously are not in line with the law”, said representative of Transparency International Lithuania Chapter.
President of the Chamber of Notaries of Lithuania, Klaipėda notary Marius Stračkaitis emphasised that the Chamber of Notaries of Lithuania and the Court of Honours of Notaries spare no effort in fighting against the so-called “kick-back” practice when real estate brokers are paid cash by notaries for bringing their clients to certify real estate transactions.
“The Law on the Notariate and the Code of Ethics of Notaries provide for very high standards for notaries, whereas payments to real estate brokers may only be seen in one light – as abuse of office”, said Stračkaitis to ELTA, who called payments to RE brokers as totally unacceptable and inappropriate.
For several years the Chamber of Notaries of Lithuania have been running the mystery shopper programme, during which, according to Stračkaitis, several incidents were reported when notaries showed their tendency to act inappropriately and readiness to discuss a reduction of the notarial charge or reimbursement of the part thereof to their clients.
According to the President of the Chamber of Notaries, a notary has no right, without a legal ground, to relieve a person from the payment of the charge nor reimburse part of the charge paid, because this is regarded as unfair mutual competition, a gross violation of the code of ethics giving ground for disciplinary sanction.
The data collected from the mystery shopper programme were handed over to the President of the Chamber of Notaries.
“Unfortunately, in order to use the data collected by a mystery shopper as a ground for disciplinary sanction, some amendments to the Law on the Notariate and broadening of the remit for the Chamber of Notaries to inspect notaries are necessary. As a result, all notaries who came under suspicion were summoned for individual meetings and were warned of the obligation to abide by the requirements of the code of ethics and discipline”, Stračkaitis said. RE brokers and notaries interviewed by ELTA said that such reprimands were of no use, as part of the notaries keep on their anti-competitive practices and pay “kick-backs” – everybody knows it.
“Problem number one is that the parties to the process are happy – both the one who gives and the other one who gets. Problem number two is that sending a mystery shopper to do his job does not prove anything. If notaries are s dismissed on the ground of the testimony given by a mystery shopper, the court will reinstate them. On the other hand, we might be looking into the possibility of obtaining hard evidence in this case such as video or audio recordings. It is not that easy to make it happen, but it is possible in cooperation with relevant authorities” Professor Nekrošius from VU Law Faculty commented the situation.
President of the Chamber of Notaries Stračkaitis is calling on people who have reliable information and testimonies on illegal payments by notaries to inform the Chamber of Notaries of Lithuania. The Law on the Notariate of the Republic of Lithuania provides for that notary is a person delegated by the state to perform the delegated functions to rule out the possibility of illegal transactions and documents in civil legal relations.
Transparency International Lithuania Chapter do not have data on the prevalence of the so-called “kick-back” practice among notaries.
“First we need to understand whether Lithuanian notaries and real estate brokers realise it as a problem or vicious flaw which has to be changed. If that is not the case, it becomes a much bigger challenge of abolishing such practice, because the fact alone of coming under scrutiny of law enforcement or getting a sanctions is not going to be helpful.
To conclude, it is really necessary to involve representatives of notaries and real estate brokers into the discussion so as to understand which of the decisions they have already applied and which ones they would expect to get”, Murauskas, representative of Transparency International Lithuania Chapter thus commented the situation. According to him, first of all the roots of such practice have to be uncovered and uprooted instead of fighting the consequences.
ELTA would like to remind the readers that notaries while discharging their obligations stay immune to the influence of public and regulatory authorities and are bound by the law only.

Archyvo simbolis Archyvas

  • July 2018
  • June 2018
  • May 2018
  • April 2018
  • March 2018
  • February 2018
  • January 2018
  • December 2017
  • November 2017
  • October 2017
  • September 2017
  • August 2017
  • June 2017
  • May 2017
  • April 2017
  • March 2017
  • February 2017
  • December 2016
  • November 2016
  • October 2016
  • September 2016
  • June 2016
  • May 2016
  • April 2016
  • March 2016
  • January 2016
  • December 2015
  • November 2015
  • October 2015
  • September 2015
  • August 2015
  • June 2015
  • May 2015
  • April 2015
  • February 2015
  • January 2015
  • December 2014
  • November 2014
  • October 2014
  • September 2014
  • July 2014
  • June 2014
  • May 2014
  • April 2014
  • March 2014
  • December 2013
  • November 2013
  • October 2013
  • September 2013
  • July 2013
  • June 2013
  • May 2013
  • January 2013
  • October 2012
  • June 2012
  • May 2012
  • March 2012
  • December 2011
  • November 2011
  • October 2011
  • June 2011
  • May 2011
  • April 2011
  • February 2011
  • October 2010
  • September 2010
  • May 2010
  • April 2010
  • March 2010
  • December 2009
  • November 2009
  • June 2009
  • April 2009
  • March 2009
  • January 2009
  • December 2008
  • November 2008
  • October 2008
  • September 2008
  • June 2008
  • May 2008
  • April 2008
  • March 2008
  • December 2007
  • November 2007
  • October 2007
  • September 2007
  • August 2007
  • July 2007
  • June 2007
  • May 2007
  • April 2007
  • March 2007
  • February 2007
  • January 2007
  • December 2006
  • November 2006
  • October 2006
  • September 2006
  • August 2006
  • June 2006
  • May 2006
  • April 2006
  • March 2006
  • February 2006
  • December 2005
  • November 2005
  • October 2005
  • August 2005
  • July 2005
  • June 2005
  • May 2005
  • April 2005
  • March 2005