Colombia's Notary System in the Face of COVID-19


By: Dr. Luz Eneida Saldaña, attorney, Universidad del Rosario, specialist in Administrative Law and Financial Law.

Note: this article was published in July 2020, during the height of Colombia's COVID-19 lockdown, and describes the temporary hours and restrictions in effect for notaries at that time. Those measures are no longer in force; the content is kept here as a historical reference.

Under article 1 of Decree 2148 of 1983, notarial service has been defined as a public service that exercises "notarial faith," which grants full authenticity to statements made before a notary. Notaries operate under a special regulatory framework and are subject to very strict disqualification rules meant to guarantee the seriousness, effectiveness, and impartiality of their work. What is the legal nature of the notary's role? Case law has established that a notary is a private individual vested with a form of authority — someone the State has entrusted with the important task of providing legal certainty for acts, contracts, legal transactions, and legal situations or relationships that either require certain formalities by law or where the interested parties choose to formalize them that way.

Colombia's notary system was hardly immune to the enormous impact of the COVID-19 pandemic, which first meant imposing restrictions and later, gradually, some relief measures aimed at preserving both the notarial function and jobs. For instance, article 158 of Decree-Law 960 of 1970 already provided that "notaries will keep whatever public office hours are necessary for good service, as determined by notarial oversight."

Among the 34 exceptions to mandatory preventive isolation, notarial services and activities were kept running throughout the state of emergency, with the Superintendency of Notaries and Registration (SNR) given authority to set the hours and shifts under which notarial service would be provided, guaranteeing service to the most vulnerable people and to those under special constitutional protection.

On March 24, the Superintendency issued its first Resolution to comply with National Government instructions — Resolution 3133 of March 24, 2020 — restricting operating hours to preserve the safety of service users as well as notaries and their staff. It provided that in municipalities with one or two notary offices, service would be offered on only two days a week, for a single time slot from 10:00 a.m. to 1:00 p.m., and for municipalities with more than two notary offices it issued a rotating schedule running through April 13, 2020, though without Saturday service, per Resolution 0617 of January 27, 2020.

As quarantine kept getting extended, new legislative decrees under the state of economic and social emergency were issued, along with the corresponding decrees ordering mandatory preventive isolation for set periods. As pandemic conditions evolved, operating hours and schedules were adjusted, and the SNR kept issuing resolutions expanding restrictions for the same periods. For example, in notarial districts with two notary offices, the notaries were required to coordinate so as to offer service on different days of the week, and the two notaries could never offer service simultaneously.

Later, and gradually, service was limited to Mondays, Wednesdays, and Fridays in municipalities with a single notary office — from 8:00 a.m. to 1:00 p.m. in warm or temperate climate zones, and from 10:00 a.m. to 3:00 p.m. in cold-climate areas — and schedules for municipalities with more than two notary offices were adjusted through the deadline of the new isolation period. Notaries were also allowed to work behind closed doors to move forward administrative procedures and paperwork, as long as all necessary COVID-19 prevention and protection measures were in place.

All notary offices nationwide were also allowed to offer home service, particularly for people over 60, vulnerable individuals, and those under special constitutional protection — except in clinics, hospitals, and prisons — subject to compliance with Administrative Instruction 04 of March 16, 2020 and Resolution No. 000666 of April 24, 2020, issued by the Ministry of Health and Social Protection.

Starting April 27, all notary offices nationwide were authorized to offer public notarial service Monday through Friday for five (5) hours a day within already-defined hours, and Saturday service was authorized exclusively under the shift schedule set by Resolution No. 617 of January 27, 2020.

Finally, with the issuance of Resolution 5020 of June 26, 2020, from July 1 through July 15, 2020, notary offices nationwide were authorized to resume the hours previously set out in SNR administrative acts that were in force before mandatory preventive isolation began — effectively normalizing notarial service nationwide, per that resolution. However, in any region where a mayor or governor ordered a curfew, public service was understood to be suspended, resuming once the local order was lifted.

For the notary offices at El Dorado International Airport (Notary Offices 79 and 80), created under Decree 1437 of August 9, 2019 with 24-hour service seven days a week, the pandemic led to restricted public hours as of April 27: service seven days a week, five (5) hours a day for each office — Notary 79 from 1:00 p.m. to 6:00 p.m., and Notary 80 from 8:00 a.m. to 1:00 p.m. — a schedule that, as of this writing, remains unchanged given that the airport had not yet reopened.

On biosecurity, notaries must at all times adopt prevention and mitigation measures for both their staff and users, per Administrative Instructions 04 and 07 of 2020, issued during the health emergency; Circular No. 362 of 2020, addressing how to handle staff showing coronavirus symptoms or confirmed COVID-19 positive; and Resolution No. 000666 of April 24, 2020, issued by the Ministry of Health and Social Protection, among others — including:

• Keeping logs to control user entry into notary offices,
• Disinfecting the biometric scanner before each use, for every user and every time the device is used,
• Keeping handwashing supplies available for staff and users, keeping premises in adequate hygiene and cleanliness conditions, and ensuring constant ventilation across the different areas of the notary office,
• Maintaining a minimum distance of two (2) meters between users in any line inside or to enter the notary office,
• Keeping logs to control user entry into notary offices,
• Reporting suspected COVID-19 cases among staff to the relevant authorities.

Subject to compliance with Administrative Instruction 04 of March 16, 2020 and strict compliance with Resolution No. 000666 of April 24, 2020 of the Ministry of Health and Social Protection, home service for people over 60, vulnerable individuals, and those under special constitutional protection required verifying that the user being served hadn't recently entered Colombia from a country with COVID-19 cases, or wasn't in isolation due to having contracted the virus; mandatory use of a face mask; temperature checks; and handwashing before and after providing the service. The fingerprint scanner used for biometric verification had to be cleaned before and after each use, along with other measures set out in the various administrative acts issued by the National Government and the SNR. However, this home service wasn't offered at clinics, hospitals, or prisons.

Regarding biometrics — that is, requiring and matching fingerprints — this tool was suspended under Administrative Instruction No. 04 of March 16, 2020, as a contagion risk. It was reinstated under Resolution 5020 of June 26, 2020, effective June 1, 2020, for the cases set out by law and referenced in Circular No. 3296 of August 29, 2019 issued by the SNR — under which a notary may not require a fingerprint for a notarial act or procedure except in cases expressly provided by law, or when the user expressly requests it, and subject to these measures: before allowing any user of public notarial service to use the biometric scanner, it must first be disinfected with isopropyl alcohol. Fingerprint scanners may only be operated by staff authorized by the notary, to minimize contagion risk.

As alternative labor arrangements while the health emergency remained in effect, Legislative Decree 770 of June 3, 2020 provided at the time for adjustments to work schedules, requiring mutual agreement between employer and employee and compliance with hours set by the relevant authority.

As for the "Pico y Cédula" measure (restricting access by ID number on given days), which heavily affects notarial activity, each municipality had to coordinate with local authorities on flexibility and alignment with National Government guidelines for applying it. In Bogotá, it was ultimately established that citizens could carry out notarial procedures without regard to Pico y Cédula for marriages, signing deeds, and divorces — that is, procedures that by law require two or more people to appear together — but Pico y Cédula still applied to procedures involving only one person.

Finally, regarding relief granted for the economic impact on notaries, Decree 805 of June 4, 2020 provided payroll financial support for a four-month period, for all notary offices nationwide, to help meet their labor obligations and protect the jobs of notary-office employees — corresponding to forty percent (40%) of one monthly minimum wage for each employee listed in the Integrated Contribution Settlement Form (PILA), among other requirements, with fiscal, disciplinary, and criminal liability for misuse or fraudulent reporting. Payment of the mandatory service bonus (prima) also required mutual agreement between employer and employee, and notaries were allowed to defer the first bonus payment until no later than December 20, 2020.

Do you have questions about notarial procedures? Contact us — at Consejurídico, #WeWantToBeThere.

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