The Código Civil (Civil Code; Gaceta Oficial No. 2.990 Extraordinario, July 26, 1982) separates two questions: what the paper proves and against whom it is valid.
The four documents in a table
| Type of document | Who signs and where | What it proves | Valid against third parties? | Articles |
|---|---|---|---|---|
| Simple documento privado (private document) | The parties, without any official | It is deemed acknowledged if the person who must deny it does not; if the signature is denied, it must be proven | It cannot be registered without authenticating or proving the signatures; its date counts against third parties only in the cases of art. 1.369 | 1.364, 1.365, 1.369, 1.923 |
| Private document reconocido (acknowledged) or tenido por reconocido (deemed acknowledged) | The parties; it is acknowledged in court or by the silence of whoever had to deny it | The same evidentiary force as the public document as regards the material fact of the statements, and proof of their truth until proven otherwise | It is also evidence with respect to third parties, but the unregistered sale has no effect against whoever legally acquired and kept rights over the property | 1.363, 1.920, 1.924 |
| Documento autenticado (notarized document) before a notary | The parties, before the notary, who identifies and informs them | Fe pública (public certification) of the signing; for the Tribunal Supremo (Supreme Court) it is still a private document | Only if it is registered; with the signatures authenticated, it can be taken to the Registro Público (public registry) | 1.366, 1.923, 1.924; LRN 68, 75, 78 |
| Documento público (public document), executed before the Registrador (registrar) | The parties, before the Registrador for the place of the property | Full proof, between the parties and with respect to third parties, of what the official declares to have done, seen or heard, until it is declared false, and of the truth of what was declared, barring simulation | Yes: it is the registration that art. 1.920 requires for the sale | 1.357, 1.359, 1.360, 1.915, 1.920; LRN 26, 46 |
Articles without another reference are from the Código Civil. LRN is the Ley de Registros y Notarías (Registries and Notaries Law; Gaceta Oficial No. 6.668 Extraordinario, December 16, 2021) and CPC, the Código de Procedimiento Civil (Code of Civil Procedure; Gaceta Oficial No. 4.209 Extraordinario, September 18, 1990).
What the Código Civil says about each document
The documento público
A public or authentic instrument is "el que ha sido autorizado con las solemnidades legales por un Registrador, por un Juez u otro funcionario o empleado público que tenga facultad para darle fe pública" (one that has been authorized with the legal formalities by a Registrar, a Judge or another public official or employee with the power to give it public faith) (art. 1.357). It is full proof "así entre las partes como respecto de terceros, mientras no sea declarado falso" (both between the parties and with respect to third parties, until it is declared false) of the facts that the official declares to have carried out or to have seen or heard (art. 1.359), and of the truth of what the signatories declare, unless simulation is proven (art. 1.360).
The documento privado, reconocido or autenticado
The private document is signed by the parties without an official. The person it is produced against must formally acknowledge or deny it; if they do not, it is deemed acknowledged (art. 1.364). In a lawsuit, they must do so when answering the complaint, if the document came with it, or within the five days following if it was presented later (CPC, art. 444). If they deny the signature, it is proven under the Código de Procedimiento Civil (art. 1.365): whoever presented the document proves its authenticity through cotejo (handwriting comparison) or, if that is not possible, through witnesses (CPC, art. 445).
Once acknowledged, or legally deemed acknowledged, the private document has "entre las partes y respecto de terceros" (between the parties and with respect to third parties) the same evidentiary force as the public one "en lo que se refiere al hecho material de las declaraciones" (as regards the material fact of the statements), and it is proof, until proven otherwise, of the truth of those statements (art. 1.363).
The autenticado is the one the parties sign before a notary. The Código treats instruments authenticated before a judge as acknowledged (art. 1.366), but it does not mention one authenticated before a notary. The LRN gives notaries the power to give fe pública to the acts that occur in their presence (art. 68) and orders them to identify the parties and inform them of the content and legal consequences of the act (art. 78). According to the Sala de Casación Civil (Civil Cassation Chamber) of the Tribunal Supremo de Justicia, authentication does not turn the document into a public one, and neither does registration: registration makes it enforceable against third parties, but it remains private (judgment No. 624 of October 2, 2003).
The date against third parties
The date of a private document only counts, with respect to third parties, from the moment one of these events occurs (art. 1.369):
The article does not name the notaría (notary office): whether authentication alone gives fecha cierta (certain date) is a matter of interpretation, not an express rule. The LRN tasks notarías with filing, where appropriate, the private instruments of that article (art. 75, num. 16). Having a fecha cierta does not make the sale valid against third parties: that depends on registration.
The notaría and the Registro do not do the same thing
The notaría certifies the signing: who signed, before the notary. The Registro Público records the acts concerning ownership and the other real rights over properties (LRN, art. 46), and its mission is the legal certainty of what is recorded "con respecto a terceros, mediante la publicidad registral" (with respect to third parties, through registry publicity) (LRN, art. 26). The document that enters the Registro first is recorded with priority over those presented later, barring legal exceptions (LRN, art. 5).
The Código Civil orders the registration of every act between living persons, free or for consideration, that transfers ownership of a plot of land, a house or an apartment (art. 1.920, num. 1), at the office for the place where the property is located (art. 1.915). And private instruments "no pueden registrarse, si la firma de los contratantes, o la de aquél contra quien obran, no han sido autenticadas o comprobadas judicialmente" (cannot be registered if the signature of the contracting parties, or that of the one against whom they operate, has not been authenticated or proven in court) (art. 1.923).
What each office does: see notaría or Registro.
Why a sale that is only notarized leaves you exposed
Between buyer and seller, ownership is transferred "por efecto del consentimiento legítimamente manifestado" (by effect of legitimately expressed consent) (art. 1.161). Against third parties, art. 1.924 applies: documents that the law subjects to registration and that have not been registered "no tienen ningún efecto contra terceros, que por cualquier título, hayan adquirido y conservado legalmente derechos" (have no effect against third parties who, by any title, have legally acquired and kept rights) over the property. The same article adds that, when the law requires a registered title to assert a right, "no puede suplirse aquél con otra clase de prueba, salvo disposiciones especiales" (it cannot be replaced by another kind of evidence, barring special provisions).
An example:
Whether the second buyer acted legally, and what actions you have left, is for a judge to decide; consult a lawyer. Before paying, check at the Registro who appears as the owner.
Opción de compra-venta and bienhechurías
The opción de compra-venta (purchase option agreement). Notarías can authenticate option contracts to acquire rights over properties (LRN, art. 75, num. 3). The Código does not require it to be notarized to be valid between the parties: the document is only a means of evidence, except when the law requires it as a formality of the act (art. 1.355). Whether private or authenticated, it is not the registered sale of art. 1.920. Whether a bilateral promise amounts to a sale is a point on which the Tribunal Supremo has changed its position: see the opción de compra-venta.
The private document for bienhechurías (buildings or improvements on land). Art. 527 places buildings and any construction permanently attached to the land in the same category as land. This is our reading, not an express rule: together with art. 1.920, a sale of bienhechurías that is not registered is exposed to art. 1.924 just like a sale of land. If it is private, moreover, it cannot be registered without authenticating or proving the signatures (art. 1.923).
Nor does the document settle who owns the land. Ownership of the land carries with it ownership of everything on top of it (art. 549), and every construction is presumed to belong to the owner of the land unless otherwise shown (art. 555). See bienhechurías and título supletorio.