¿Should I go to the Notary? I want to buy a house

There is no doubt that when a person buys a house, they usually do so in a public deed before a Notary, but is it really necessary?

The truth is that no, it is not mandatory to go to the Notary to buy a house. Articles 1450 and following of the Civil Code (CC) regulate the purchase and sale contract and do not require any special form to be met.

However, article 1280 CC establishes: “The following must be set forth in a public document: 1.º Acts and contracts whose purpose is the creation, transfer, amendment or extinguishing of rights in rem over immovable property. [...]”

Therefore, if the right of ownership of an immovable property is going to be transferred, it seems that it will be necessary to go to the Notary to be able to record the sale in a public document, which in this case will be the public deed.

So why has it been said that it was not necessary? Well, because this article must be interpreted together with the previous two. The first establishes what is known as the principle of freedom of form, that is, contracts are mandatory regardless of the way in which they have been entered into (verbally, in a private document, public document, etc.). In addition, article 1279 indicates that, when the law requires a certain form to make the contract effective, the parties may oblige each other to enter into it in the manner required if they had not done so from the beginning.

These articles have been interpreted in the sense that article 1280 does not really require said contracts to be in a public document to be binding, but rather permits the contracting parties to force one another to do so in a public document if they did not do it when entering into the contract.

That is, we can buy a house by signing a private contract, but in that case the seller has the faculty to oblige us, or we to him, to go to a Notary and grant a public document.

Therefore, it is worth asking, are any of the parties interested in going to the Notary? The buyer is the one who usually pays these expenses, so reducing this cost would be to his benefit. For his part, the seller only wants to receive the price and forget about the rest of the problems. So, why go to the Notary?

The answer is found in the following step of the conveyancing process, the Property Registry. Once the deed has been signed before a Notary, it is taken to the Registry for its inscription. But could the same be done with a private document?

Unfortunately, no. Article 3 of the Mortgage Law prevents a private document from having access to the Property Registry. The Notary, therefore, in addition to advisory functions, which could easily be replaced by a lawyer –and in fact they already are, at least in part–, has the main function of creating the public document necessary for its inscription in the Property Registry. If the registration of private documents were allowed, it is highly probable that notaries would see their number of clients reduced due to their objective of reducing expenses.

At this point, the question is obvious. What if I decide not to inscribe in the Registry and thus save both the Notary and the Registrar’s fees?

Except for a few cases, registration in the Registry is voluntary. That is, the acquired right exists regardless of whether it enters the Registry or not. One of these exceptions is the mortgage, which must be registered in the Registry for it to exist. Therefore, it is clear that, in cases where a house is bought with a mortgage loan, the bank will have an interest in having said purchase registered in the Registry, since, otherwise, the mortgage would not exist. But what about cases where there is no mortgage?

The great advantage of the Registry is the protection it offers to the buyer who meets certain requirements. This means that, once the requirements are met, the buyer is protected against anyone who intends to enforce rights that were not recorded in the Registry. In practical terms, if a person buys, but does not register, and the original seller sells again to another buyer who does register, the latter will be protected against the first, even if he was the last one to buy.

In short, not registering in the Registry leaves open the possibility of the seller proceeding to a second sale, with the risk that the new buyer does register and therefore is considered as the true owner.

Ferrer Asociados

Estudio Jurídico y Económico