06 Feb Notarial Deposit: Characteristics, Purpose and Costs

Private individuals, as well as the parties to a legal transaction, may deliver assets to a notary for safekeeping. Such assets may include money, securities, documents, movable property, or any other items, provided that they are not outside the scope of commerce or prohibited by law.

1. Characteristics of a Notarial Deposit

Purpose

The purpose of a notarial deposit may vary: simple safekeeping and preservation of an asset (deposit); its use as security for the performance of an obligation (pledge); or, beyond strictly legal considerations, as a means of demonstrating to the seller a greater level of seriousness regarding the completion of a given legal transaction.

Any person may establish a notarial deposit, provided they have legal capacity to contract and full disposal rights over the asset or object delivered.

Unilateral or bilateral

A notarial deposit may be unilateral when its purpose is merely the safekeeping of an asset by the notary (e.g. the buyer delivers money to the notary to pay for a planned sale, or a USB drive is deposited for secure storage — deposit).

It may also be bilateral when the assets are delivered as security for an obligation undertaken (e.g. an earnest money agreement).

Voluntary intervention of the notary

“The acceptance of deposits is voluntary on the part of the notary,” as established in Articles 216 and 217 of the Notarial Regulations. The notary is not obliged to accept a deposit; rather, it is for the notary to decide whether or not to do so. However, if the notary agrees to accept it, they are required to ensure that the mandate and all its specific terms, clauses, and conditions comply with a series of legal rules.

Requirements

For a deposit to be valid, a notarial deed must be executed, which shall state the following:

• Identification of the depositor and, where applicable, the beneficiary and any interested third party.
• Precise description of the deposited object.
• Cause and purpose: simple safekeeping or security for a specific contract.
• Duration of the deposit.
• Conditions for restitution or delivery (e.g. execution of a public deed or submission of specific documentation).
• Notarial declaration that the object has been examined and does not contravene the law.

2. What happens when disputes or disagreements arise between the parties in the presence of a notarial deposit?

Due to its nature, disputes may arise between the parties regarding whether the conditions for delivery of the deposited object have been fulfilled. In such cases, the notary’s actions are strictly limited to what is established in the notarial deposit deed. If this proves insufficient to resolve the dispute, and given that the notary lacks judicial authority, the notary may proceed with the judicial consignment of the deposited funds in cases where there is no agreement in bilateral deeds, where there are serious doubts regarding the interpretation of the instructions received, or where the notary has been notified of the initiation of judicial proceedings between the interested parties.

If the item delivered to the notary is a sum of money, it shall be deposited into an instrumental or fiduciary account held by the notary, which may not bear interest. Consequently, neither the notary, nor the depositor, nor any third party may obtain any financial return from it.

3. Costs of a notarial deposit

The costs of a notarial deposit mainly relate to the notary’s fees for safekeeping the assets and drafting the notarial document.

As this is a voluntary action of a contractual nature, the notary may freely set their fees as a condition for accepting the deposit, in accordance with Article 216 of the Notarial Regulations. The Notarial Fee Schedule does not specifically regulate these cases, so there is no mandatory tariff. However, the General Council of Notaries has established indicative criteria to avoid disparities, which are commonly applied in practice, such as a fee equivalent to 15% of the amount deposited.

From a tax perspective, no taxes (Stamp Duty or Transfer Tax) are payable when the deposit deed is limited strictly to the deposit itself, or when it documents or incorporates a transfer contract (e.g. a sale and purchase agreement). If it is limited solely to the deposit and does not contain or replace a registrable contract, nor formally document the transfer, the transaction will be tax-exempt.

At Navarro Llima Abogados, we advise individuals and companies on civil and commercial transactions, from sales and purchases to investments and complex contracts. The safekeeping of assets through notarial deposits is an example of how we help protect interests and provide legal certainty in every matter, combining legal rigor with practical, client-focused solutions.