Conviction of a notary for negligent provision of inaccurate information under Art. 29 para. 2 ANRA

Facts

On 27 April 1992, Notary W. executed a deed by which company P. SA sold a property located in X. to company SI S. SA for CHF 7.75 million. In the deed, the notary stated that the purchase did not fall under the authorization regime of the Federal Act on the Acquisition of Immovable Property by Persons Abroad (ANRA), as the financing was done through the takeover of existing debts, of which 82.4% were mortgage debts with Bank Y.

However, when the Land Registry informed Bank [Y.] of the sale and the takeover of debts, the latter made it known that it opposed any takeover of debts. The notary was then convicted by the Police Court for having provided negligent inaccurate information within the meaning of Art. 29 para. 2 ANRA.

The Cantonal Court of Cassation dismissed the notary's appeal, finding that he had negligently provided the Land Registry with inaccurate information on facts that could have determined the applicability of the ANRA authorization regime. The notary then filed a nullity appeal with the Federal Tribunal.

Considerations

The Federal Tribunal dismissed the nullity appeal. It considered that the notary had indeed provided the competent authority, namely the Land Registry, with an inaccurate indication by stating that Bank [Y.] was financing the buyer, when in reality it had opposed it. This indication concerned a relevant fact for the application of the ANRA, namely the…