Notary Services in Real Estate Transactions
In real estate transactions the notary’s role protects both parties: a certified signature gives the transaction reliability, and a properly concluded transaction becomes the basis for registration. When the notarial form is mandatory, when the written form suffices, and what happens on a breach of form — these are the questions every participant in a property deal should answer in advance.
Notarial activity is governed by a separate statute, and its details — fees, procedures, the scope of the notary’s competence — derive from that law. The Civil Code, however, defines the legal frame in which the notarial act operates: the requirements of form, the registration procedure and the consequences of breaching form. That frame is the subject of this page.
Written Form and the Certification Procedure
Article 323 of the Civil Code provides that a contract by which one party undertakes to transfer ownership of immovable property to another, or to acquire it, requires written form. Alongside this, Article 69 states the general rule: a transaction may be concluded orally or in writing; in written form it may be concluded where provided by legislation or agreed by the parties, and where written form exists the signatures of the participating parties suffice.
Notarial certification becomes necessary where the Code so provides: in cases defined by law or by agreement of the parties, the transaction or the authenticity of the signatures must be certified by a notary or another person provided by law. For transactions submitted for registration of immovable property, Article 311-1 sets the procedure: the transaction or the authenticity of the parties’ signatures must be certified in the manner established by law; where the parties sign the transaction at the registering authority in the presence of an authorised person, certification is no longer required. Such transactions enter into force from the moment of registration in the registry — the endpoint of the closing.
The details of written form are themselves regulated: where written form exists, the signatures of the participating parties suffice, and the reproduction, repetition or impression of a signature by mechanical means is admissible where customary. In special cases — such as transactions by a person under supported decision-making — additional signing rules apply.
Knowing these details matters because the completeness of a notarial act is built on them: the notary confirms not only the signature but the process of its affixing. For the parties, choosing the notarial form means buying not a formality but a documented process.
Consequences of Breach of Form
Ignoring the form requirement can void the transaction altogether: under Article 59 of the Civil Code, a transaction concluded in breach of the mandatory form prescribed by law or by contract is void, as is a transaction concluded without a permit where a permit is required. A voidable transaction is void from the moment of its conclusion if it is rescinded; rescission is effected towards the other party to the contract, and the right to rescind belongs to the interested person.
The practical conclusion is clear: the value of a notarial act lies in extinguishing the risk of a breach of form in advance. Contesting the authenticity of a signature on a certified transaction becomes significantly harder — and that rarely needed but decisive protection matters precisely in transactions where other persons later attempt intervention.
The Will — the Classic Notarial Act
The best-known application of the notarial form is the will. Article 1357 of the Civil Code provides that a will must be made in writing, and a written will is admissible with or without notarial form. The notarial form requires that the will be drawn up and signed by the testator and confirmed by the notary.
The value of a notarial will lies in its reliability: the notary confirms the process of drawing up the act and the testator’s expression of will, which later reduces the risk of a challenge to the will. A written will without notarial form is equally lawful — the choice depends on the testator’s circumstances.
A Special Effect of Form in Agricultural Leasing
One illustrative example of where the notarial act touches property transactions is the agricultural land lease: Article 592 of the Civil Code defines its concept — a plot of agricultural land is transferred for agricultural purposes together with residential or farm buildings (an enterprise) intended for such use, or without such a building. Such deals are part of the notary’s daily practice: the transfer of a plot and the buildings on it demands precise description, and it is the notarial act that preserves the completeness of that description.
Choosing the right form for each transaction is a separate decision: the required form follows from the nature of the transaction, and precision of form is the foundation of a property deal.
Frequently Asked Questions
When does a real estate transaction require written form?
Always, where one party undertakes to transfer ownership of immovable property to another or to acquire it; for the written form, the signatures of the participating parties suffice.
When is certification of a transaction no longer required?
Where the parties sign the transaction at the registering authority in the presence of an authorised person — the authenticity of a transaction submitted for registration then requires no certification.
Is notarial form mandatory for a will?
No — a will must be made in writing, and a written will is admissible with or without notarial form; the notarial form requires that it be drawn up and signed by the testator and confirmed by the notary.
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