Latest trends in the notarial function in El Salvador

By: Marcela Torres

Last year ended with the approval of the Reforms to the Notary Law by the Legislative Assembly. These reforms are still in the process of being passed into law, awaiting the veto of the executive body, and were expected to become effective on January 1, 2023. This reform is composed of 14 articles, from which emanate new obligations for notaries, as well as the obligatory nature of others, which although they were in the law, by custom, not all notaries complied with them.

Regarding the Reform to Articles 23 and 24 of the Notary Law, uncertainty has arisen as to how it will be applied in the day-to-day practice of notaries. Among the reforms, the most significant is the way in which the protocol books and other notarial documents will be submitted to the Notary Section, since not only the notaries’ protocol book will be digitalized, but also the files of annexes to it, and the notarial acts, making it mandatory that as of this year the storage and submission of the mentioned documents will be in a digital way.

From the analysis of the reforms to the Notary Law, a legal void is detected, since in the case of the digitalization of the Protocol books, both the out-of-print and the expired ones, their file of annexes, and the notarial acts, the mentioned Reform omits to indicate the form of storage of the electronic documents, leaving in the hands of the notary the decision of how to store the mentioned documents, the notary being able to decide to store them by his own means (external hard disks, his computers, etc.) or to hire the service of specialized platforms for the storage of digital documents. Therefore, in relation to Articles 12 and 13 of the Electronic Signature Law, notaries must store digital documents through an electronic document storage provider, which will always be in physical or written form, such as the protocol book, its annexes, and the Notarial Minutes.

In relation to the amendment to Article 53 of the Notary Law, it reiterates the notary’s obligation to submit a copy of the notarial acts to the Notary Section, and that, by virtue of the amendment, this year the Notary must, on a mandatory basis, issue a digital copy within 5 days following its execution, making use of the electronic signature.

Likewise, the amendment to Article 23 of the Notary Law in its 4th paragraph, imposes the obligation to the notary to keep for 15 years the Protocol books together with its annexes, all this after the delivery of the digital document.

The reform of Article 25 of the Notary Law establishes that in case the notaries do not comply with the requirements of presentation of the Protocol Books together with their annexes, new protocol sheets will not be authorized for the formation of a new book, and that the Notary Section will communicate electronically with the notaries of its resolutions and guidelines.

Another important reform, from which new obligations are derived for notaries, is through the new “Instructions for the prevention, detection and control of the Financing of Terrorism regarding Money Laundering and Financing of the Proliferation of Weapons of Mass Destruction”, which was published in the Official Gazette on October 27, 2021. This instruction dictates that the regulated entities must comply with all the rules related to the Anti-Money Laundering regulation in El Salvador in order to avoid Money Laundering activities, as well as the prevention of being involuntarily involved or used for such activities. The entry into force of the Instructions was originally scheduled for December 6th, 2021, but was extended until June 6th, 2022 and is currently in force. According to the provisions of Article 2 of the Law against Money Laundering and Financing of Terrorism, different professional activities are established as obligated subjects, among these activities is that of Notaries, deriving from this new obligations for notaries.

With the anti-money laundering reforms, nowadays notaries have the obligation to register before the Financial Investigation Unit of the Attorney General’s Office of the Republic of El Salvador, as established in Article 77, paragraph 4th of the instructions; with the purpose of reporting as of 2023 the transactions that before their offices as notary are granted, higher than US$10,000.00 in cash or US$25,000.00 in other means (Electronic Transfers, Checks, etc.) in a maximum term of 5 working days after the transaction is carried out. To comply with this obligation, the FIU has issued a document called Reporting Guide of Regulated Transactions for Lawyers and Notaries, thus facilitating the exercise of this obligation.

In conclusion, this 2023 represents a significant change in the exercise of the notarial activity, representing new obligations for notaries in their daily activity, and before other institutions different from the Supreme Court of Justice. Likewise, it is expected that these changes will imply a better appreciation of the notarial practice and the responsibility it implies for each notary.