Notary in a real estate transaction: when is it mandatory under the law of the Republic of Kazakhstan

Most often people come with a question about the notary's involvement already at the stage of preparing the contract: some are certain that certification is needed for any transaction with a flat or house, while others, on the contrary, consider it an unnecessary formality. The confusion arises because the requirements of the law depend on the type of transaction, the composition of the participants and the object, as well as on whether it concerns alienation or the formalisation of other rights.

The article examines in which cases a notary in a real estate transaction is mandatory, and in which the parties approach them on their own initiative; how the certification of a purchase and sale of a flat, house and land plot proceeds; what the notary checks and certifies; which documents the parties prepare and how the right is then registered in the Legal Cadastre.

Notary in a real estate transaction: which transactions require their involvement

As a general rule, a notary in a real estate transaction is not mandatory: the notarial form is established only for the cases expressly listed, and in others the parties are entitled to approach a notary voluntarily.

Mandatory certification has been introduced where the law protects the weaker party, a participant's share or the stability of turnover. Without the certification inscription, the document does not entail the consequences the parties counted on.

In any case, the notary establishes the identity and legal capacity of the parties, checks the lawfulness of the alienation and the absence of encumbrances, while the scope of the remaining work depends on the transaction. They also certify powers of attorney, spousal consents and statements of the participants.

Voluntary application is convenient for those who value verification of the transaction's cleanliness and a clear payment procedure. The cases of mandatory certification are listed below.

• Alienation of a share in the right of common ownership to an outsider: the other participants are notified in writing of the terms of sale, and if within a month from the day of notification no one buys the share, it may be sold to any person (Art. 216 of the Civil Code of the Republic of Kazakhstan)
• Transactions carried out by a representative: it is the power of attorney to dispose of real estate that must be notarially certified (Art. 167 of the Civil Code of the Republic of Kazakhstan), not the contract itself
• Alienation of real estate belonging to a minor or a person with limited legal capacity
• Transactions with housing in cases expressly established by law, including certain types of life maintenance
• Mortgage and other security arrangements for which the law requires a notarial form
• Powers of attorney to dispose of real estate and spousal consents to enter into a transaction

When a notary in a real estate transaction is mandatory by law

Notarial certification of a transaction is mandatory when this is expressly established by law. Without the notary's certification inscription, such a contract does not produce legal consequences, and the transfer of the right will not be registered in the Legal Cadastre.

The most common case is the sale of a share in the right of common ownership to an outsider. The seller must notify the other participants in writing of the price and other terms of sale, and the notice is sent through a notary: this leaves proof that the pre-emptive right was observed (Article 216 of the Civil Code of the Republic of Kazakhstan).

Notarisation is also required for the disposal of the property of a person under guardianship and for transactions concluded on behalf of a person with limited legal capacity. The notary verifies that the interests of the represented person are observed and that permission from the guardianship authority is in place. Certain land transactions specified in regulatory acts are also subject to notarial formalisation.

Mandatory cases requiring a notary:

• notarial notice to co-owners when selling a share in the right of common ownership;
• notarial formalisation of the sale of property of a person under guardianship with permission from the guardianship and trusteeship authority;
• notarial certification for certain land transactions specified in regulatory acts;
• notarial certification of a sale and purchase agreement in cases expressly specified by law.

The list is not exhaustive: the mandatory notarial form is established by law in relation to a specific type of transaction.

When a notary is not required for a real estate transaction, but the parties go to one anyway

If the seller owns the flat alone, the notarial form is not required: the sale and purchase agreement is concluded in written form, and the transfer of title is registered in the Legal Cadastre. Going to a notary is voluntary, and its point is not the form but the additional guarantees.

The notary checks the title documents, the information in the Legal Cadastre and any encumbrances, establishes the identity of the participants and their legal capacity, explains the meaning and consequences of the agreement, and checks whether the seller understands that they are losing the property. Where acting under a power of attorney, the notary checks its scope and term. A certified document has increased evidentiary weight in a dispute.

• Full identification of the participants and verification of legal capacity.
• Verification of title documents and encumbrances against the data of the Legal Cadastre.
• Explanation to the parties of the meaning and consequences of the agreement.
• Verification of the representative's authority under a power of attorney.
• Increased evidentiary weight of the certified agreement in a dispute.
• The possibility of carrying out payment and transfer of the property within a single procedure.

Notary when selling a flat: preparation and procedure

A notary is involved in the sale of a flat when the law requires it: property of a minor or a person under guardianship and other expressly named cases. In the case of joint ownership of spouses, it is the consent of the second spouse that is notarially certified, not the agreement itself (Art. 34 of the Code on Marriage and Family of the Republic of Kazakhstan). Otherwise the parties may conclude the agreement in simple written form. Certification is subject to the rules on notarial acts and on registration of rights to immovable property.

Preparation begins with the collection of title documents: the agreement on the basis of which the right arose, a certificate of registered rights (encumbrances) to immovable property, a certificate of registered persons, and the technical passport. The notary checks the ownership of the property, the absence of arrests and encumbrances, and the legal capacity of the parties. In the case of joint ownership, a notarially certified consent of the spouse will be required; where the owner is a minor, permission from the guardianship authority.

• identity document of the seller and the buyer, and where a representative participates, a power of attorney
• title document for the flat and information from the Legal Cadastre on registered rights and encumbrances
• certificate of persons registered in the flat
• notarially certified consent of the spouse, if the flat was acquired during the marriage
• permission of the guardianship authority, if the owner is a minor or a person under guardianship
• technical passport of the immovable property

Notary in a real estate transaction in the form of sale and purchase of a house and land

Where the subject of the transaction is a residential house and a land plot, the notary checks their relationship: a single object with a common fate or two separate units of right. This determines the number of agreements and the identification data in the text.

The house must be on the cadastral register with a cadastral number. An unregistered building cannot be alienated together with the plot: the information must first be entered in the Legal Cadastre. The notary verifies the area, designation and address against the title documents and the cadastre data.

For land, the designated purpose is checked separately: plots in settlements for housing development, and those for agricultural and other purposes, are alienated under different rules, and certain categories are restricted in circulation. A mismatch between the designated purpose and actual use does not block the transaction, but the parties must understand the consequences.

• the seller's ownership of the house and the plot;
• cadastral numbers and areas of both properties;
• the land category and designated use of the plot;
• the presence of buildings on the plot and their registration;
• encumbrances, arrests and prohibitions on alienation;
• the legal capacity of the parties and the absence of defects of will.

A notary does not replace the inspection of the property and does not substitute for registration of title: the notary certifies the transaction and verifies the legal capacity and authority of the parties, so it makes sense to go to the notary with the documents already prepared.

A notary in a real estate transaction: what is checked and certified

A notary in a real estate transaction not only attests to the authenticity of signatures but also certifies the contract itself, reducing the risk of it being challenged. The notary establishes the identity and legal capacity of each participant, and in the case of a representative, examines the power of attorney and the scope of authority.

The legal capacity of the parties is checked: the status of individuals, the authority of the director and the constituent documents of the legal entity. Information about the owner is compared with the data of the Legal Cadastre — alienation of another person's property and hidden encumbrances are ruled out.

Notarial execution of a sale and purchase of an apartment includes verification of the lawfulness of the contract's content: compliance with mandatory requirements, the absence of terms infringing a party's rights, and clarity of the subject matter and price. The participants are explained the consequences of the transaction, the transfer of title, the registration procedure and liability.

• establishes the identity of the participants and checks legal capacity
• checks the legal capacity of the parties and the authority of representatives
• compares information about the owner and encumbrances with the Legal Cadastre
• assesses the lawfulness of the contract's content and the clarity of its terms
• explains the legal consequences of the transaction and the procedure for registration of title
• certifies the contract and checks the voluntary expression of the parties' will

A notary in a real estate transaction: the package of documents from the parties

A notary in a real estate transaction checks the legal status of the property and the parties against the data of state information systems. The parties submit identity documents and title documents for the property. The notary requests information from the Legal Cadastre and other state databases independently, where this is provided for by law.

The package depends on the type of right and the ground on which it arose. If the property was acquired in marriage, a notarised consent of the spouse or a document on a separate property regime is required. The notary checks for the absence of arrests, prohibitions and encumbrances according to the data of state databases.

• identification document of the seller and the buyer, and for representatives — a power of attorney and the representative's document
• title document for the property (contract, certificate of title, act of a state body)
• technical passport and a document confirming the characteristics of the property
• spousal consent to alienation, if the property is joint property
• authorisation from the guardianship authority, if a minor or a person lacking legal capacity is among the owners
• information about registered persons and a certificate confirming the absence of arrears on mandatory payments, if required by law

The set of documents may vary depending on the basis of the transaction; the notary is entitled to request additional documents or information from state databases.

Notary in a real estate transaction and subsequent registration of title

Certification of a contract by a notary does not replace state registration of rights to real estate. The notary gives the document an official form and verifies the lawfulness of its terms, while the transfer of title arises only after an entry is made in the Legal Cadastre. Without registration, the buyer does not become the owner, even if the contract has been signed and certified.

After signing, the notary independently generates an electronic document and sends it to the Legal Cadastre, so the transfer of title is registered without the parties having to visit the State Corporation "Government for Citizens" in person. The applicant only has to wait for confirmation: the notification arrives via the Public Service Centre or appears in the personal account.

• Obtain a copy of the certified contract from the notary
• Make sure the electronic document has been sent to the Legal Cadastre
• Wait for the registration notification via the Public Service Centre or the personal account
• Check that the entry on the transfer of title has been made without errors
• Keep the registration confirmation for further actions with the property
• If registration is suspended, clarify the reason and resolve any discrepancies in the data

Notary in a real estate transaction: gift agreement and other bases

Mandatory notarial certification is linked to the bases and the parties involved in the transaction, rather than to specific types of disposal. That is why a notary is involved in gift, exchange, annuity or other transfers of property. If a transaction falls under a mandatory basis, simple written form does not replace it: without certification, the document has no legal effect.

In a gift, the notary verifies that the property belongs to the donor, that there are no encumbrances or prohibitions, and the legal capacity and free will of the parties. A gift of real estate on behalf of minors and citizens recognised as legally incapable, by their legal representatives, is not permitted (Article 509 of the Civil Code of the Republic of Kazakhstan). Certification is required for the disposal of a share in common property, in the cases specified in the rules on the form of transactions, and also where the parties have chosen it themselves.

• disposal of a share in the right of common ownership of real estate on any basis;
• gift and exchange of real estate falling under the mandatory form;
• annuity and life maintenance with dependency agreements;
• transactions in which a party cannot sign the document themselves: at their request, a signatory signs on their behalf in the presence of the notary;
• other transactions for which the law expressly provides for a notarial form.

How much a notary costs in a real estate transaction and what the fee depends on

A notary in a real estate transaction does not set the price themselves: the amount of the fee for the notarial act is established by regulation. For a state notary this is the state duty under the Tax Code of the Republic of Kazakhstan; for a private notary it is the rate approved by the Ministry of Justice. The work includes drafting the contract, verifying the title documents, explaining the consequences and sending the information to the Legal Cadastre.

The amount of the fee depends on the type of contract being certified and the rates established by law, not on the price the parties have stated in the contract. The Legal Cadastre does not contain information on the assessed value of the property — it records rights and encumbrances. The number of participants matters: where a minor or a person under guardianship is involved, permission from the guardianship authority is required. The cost of preparing documents depends on their volume, the number of copies and whether certificates need to be requested.

Notary services in a real estate transaction: where to apply in Almaty

Notarial certification is mandatory in the cases expressly named by law: transactions with the property of a person under guardianship or a legally incapable person, annuity and life maintenance, and other cases under the Civil Code of the Republic of Kazakhstan. When selling a share, co-owners must be notified of their pre-emptive right (Article 216 of the Civil Code of the Republic of Kazakhstan). Otherwise, simple written form is sufficient, and a notary is optional. The law does not tie the parties to a particular office, but a contract for the disposal of real estate is more conveniently certified at the location of the property, so for a flat in Almaty people go to a notary in that city. If the property is in another region, the procedure should be clarified in advance: the notary requests information on rights and encumbrances from the Legal Cadastre regardless of where the property is located. Before booking, clarify how the notary accepts documents, whether an appointment is needed and whether all participants must be present at the same time.

Notary services include verifying the legal capacity of the parties, explaining the consequences and certifying the contract, but they do not replace legal due diligence on the property: the notary does not investigate the history of title transfers or the risks. Separate legal support for the transaction allows you to collect the title documents in advance, verify the data on the owner and the property, and prepare a draft contract — the notary certifies it in the agreed wording.

• Which documents will be required from each party and who prepares them.
• Whether the consent of a spouse or other persons is required for the disposal of the property.
• How the contract will be certified if one of the parties acts under a power of attorney.
• What information the notary will enter in the register and how this will affect registration.
• Whether all participants are required to be present at the same time.
• What consequences the notary's refusal to certify the transaction entails.