The concept of “public deed” or “public deeds” is widely used in Spain and is legal in nature, as these documents are authorised by a public notary or by an appropriate public employee.
The Spanish Civil Code distinguishes clearly between public and private documents. Since the adoption of the Law of Civil Procedure and Electronic Signature regulations, there are three primary aspects to putting these documents into context:
- The public document (which comes from a public employee with the legal authority to attest documents).
- The official document (which originates from a public employee without the legal authority to attest documents).
- The private document.
A notarial deed or public instrument is authorised by a notary, and it is regulated as well by the notarial legislation which defines its creation.
Each public instrument is characterised by the following:
- Its authenticity which is controlled by the notary and his or her signature attesting to deed.
- Its content must be true and complete. This truthfulness aims precisely at the formal level (regarding the composition itself) and to substance (understanding the act itself as true, legal and complete). Its effects can only be rejected by judges and courts, or by administrations and civil servants, in the exercise of their functions.
The authenticity of the document is not limited to its form or the signature of the person who granted it, but also the content itself. The notary writes the deeds, takes over policies, extends and authorises acts, dispatches acts, testimonies, legitimations, authentications and creates protocols and accounting documents.
These public instruments, according to their content, are used for the deeds that have a statement of intent: the legal acts that imply prior authorisation and the contracts and legal affairs of all types.
There are many kinds of contracts and agreements between private persons which require public deeds in order to have probative value under the law. The most common are acts and contracts for disposition or encumbrance of immovable properties (such as real estate), company formation and other legal business.
The company contract is common type of public deed, and it is expressed in a note of the constitution or incorporation as a voluntary and formal act of the participating partners.
The most common of these public deeds however is the public deed of housing, which is signed and ratified by a notary chosen by the buyer and then registered in the Record of Property. The notary is required to explain to the buyer the meaning of the document that he or she is going to sign. In the case of existing clauses that were not in the original agreement, it also possible to remove them.
In the public deed of housing (Title Deeds), the following should be detailed:
- Any outstanding charges or encumbrances
- The payment receipt from the last property tax (IBI) bill and rubbish collection tax
- Certificate of being up to date with the payments to the resident’s association and in compliance of legal provisions and financial obligations derived from the buying and selling
- The distribution of expenses between the parties and the payment of the notarial charges
When the title deeds are signed in the presence of the notary, a reading of the deed will take place. After signature, the deed shall be taken to the corresponding land registry (property registry office) for its inscription. Prior to inscription, any outstanding taxes such as the Spanish Tax on Property Transfers (ITP) should be paid to the administration.
By Massimo Filippa
Information given is offered for information purposes, excluding the company and the author from all responsibility, not constitute an official publication nor will it be binding. We always recommend check with your lawyer or adviser.
Massimo Filippa
