LK Notaries Final common mistakes
LK Notaries Final · Understand the traps and how to avoid them.
Treating the notarial deed (notariële akte) and the underlying agreement as interchangeable, so the candidate states that a contract of sale of immovable property is only formed once the deed is executed before the notary.
Candidates conflate the validity of the obligatory agreement (which arises by mere consent under Dutch civil law) with the transfer or the formal deed, because in practice both are usually handled in the same notarial file and the deed is what they see.
What to do instead
Drill the separation: obligatory agreement (consent, Article 6:217 BW) versus the formal act required for transfer (Article 3:89 BW for immovables, notarial deed plus registration). For each transaction type, state separately when the obligation arises and when the right passes, and cite the article for each step.
Writing the deed in the present indicative as if the parties personally appeared and declared, when in fact an authorised representative appeared, or omitting the capacity and basis of authority of the person signing.
Candidates copy a standard deed template and only change names and amounts, without checking whether the appearing party is the party itself, a director, an attorney-in-fact, or a parent acting for a minor.
What to do instead
Before drafting, build a one-line 'appearance profile' for each signatory: name, capacity (natural person, legal person, representative, attorney-in-fact), source of authority (articles of association, power of attorney, court order), and evidence inspected. Then mirror that profile in the deed's appearance clause and add the authority check to the file checklist.
Assuming that registration in the public registers (kadaster) cures a defective transfer deed, or that a mortgage right arises against third parties from the loan agreement alone.
Candidates mix up the constitutive and declaratory effects of registration and forget that mortgage rights (hypotheek) require a notarial deed plus registration to exist against third parties.
What to do instead
Memorise the rule pair for each security and property right: what instrument creates it, and what act gives it effect against third parties. For hypotheek: notarial deed (Article 3:260 BW) plus registration. Test yourself by asking 'if registration were deleted, would the right still exist between the parties?' for every right you study.
Applying the matrimonial property regime mechanically from the date of marriage without checking whether a prenuptial agreement, a change of regime, or a foreign element alters the applicable regime or the date of its effect.
Candidates learn the default regime (community of property) and the standard prenuptial exclusion, but exam scenarios often insert a later regime change, a foreign marriage, or a company share that needs a different valuation rule.
What to do instead
For every family or succession question, first fix the timeline: date of marriage, date and registration of any prenuptial agreement, date of any regime change. Then state which regime applies on the relevant date and which assets fall inside or outside it. Practise with scenarios that change regime mid-marriage.
Drafting a will or deed of division (scheiding) that distributes assets without addressing the statutory position of the surviving spouse, the children's legitime portion, or the debts of the estate.
Candidates focus on the testator's stated wishes and forget the mandatory limits on testamentary freedom and the need to settle debts before distributing.
What to do instead
Use a fixed succession checklist: (1) who are the heirs by law, (2) what is the legitime portion and can it be reduced, (3) what is the position of the surviving spouse, (4) what debts and taxes must be settled first, (5) does the distribution match the will. Run the checklist before writing a single dispositive clause.
Answering company-law questions about directors' liability or share transfers by reference to the company's internal rules alone, without checking the formal requirements for the transfer of shares and the effect of the transfer on third parties.
Candidates rely on what the articles of association say and neglect the statutory formalities (for private companies, a notarial deed for the transfer of shares unless the articles permit otherwise) and the registration consequences.
What to do instead
For every share transfer, write three lines: what the articles require, what the statute requires, and what the notary must verify (shareholder register, pre-emption rights, blocking clauses). For directors' liability, separate internal liability to the company from external liability to creditors and cite the standard for each.
Filling in the client identification and verification section of the file with a copy of an identity document alone, without recording how identity was established, the date, the method, and the result of the risk assessment.
Candidates treat the anti-money-laundering file as a paperwork formality and do not connect it to the substantive risk assessment that determines the level of due diligence required.
What to do instead
Write the identification note as a short narrative: who was seen, what document was inspected, whether the client appeared in person, the date, the source of funds and wealth where required, and the risk rating with its reason. Practise writing this note for a high-risk and a low-risk client so the difference in depth is obvious.
Reporting or describing a suspicious transaction only after the deed has been executed, or informing the client that a report has been or will be made.
Candidates see the notarial service as a single event and assume reporting can follow execution, and they do not know the tipping-off prohibition.
What to do instead
Memorise the sequence: assess risk before or during the engagement, do not proceed where the risk cannot be managed, report to the competent authority (FIU) without informing the client, and record the decision in the file. Rehearse the rule that the client must never learn of the report, including through the deed or correspondence.
Calculating transfer tax or inheritance tax on the nominal or agreed figure without checking the valuation rule, the exemptions, and the taxpayer's status (for example first-time buyer or family relationship).
Candidates treat tax as arithmetic on the purchase price and skip the conditions that determine the rate, the base, and any relief.
What to do instead
For each tax question, state four things before computing: the taxable event, the taxable base and its valuation rule, the applicable rate or exemption with its conditions, and who is liable. Then compute. Build a one-page table of the exemptions you must know and test yourself by changing one fact at a time.
Handling a conflict of interest or a duty-to-advise issue by simply proceeding because both parties consent, without analysing whether the notary can serve both parties impartially or must refer one to another notary.
Candidates reduce professional ethics to 'get consent' and do not distinguish consent from the notary's independent duty of impartiality and the duty to advise the weaker party.
What to do instead
For every multi-party file, identify each party's interest, the risk of divergence, and whether the notary can remain impartial. Where interests conflict, state the rule that applies and the option of referring a party. Practise with a family sale, a company buy-out, and a cohabitation agreement, and write the advice note you would give each party.