The electronic public document: Basic concepts to handle

22/6/2023

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The electronic public document: Basic concepts to handle

-Episode 1-

In this article you will find

In a few months, Spain will experience a true revolution in the notarial sector, thanks to the implementation of the electronic protocol and the possibility of granting public documents telematically, all this by the hand of the recent Law 11/2023. Thus, in a few months, it will be possible to sign deeds via videoconference, and to obtain authentic electronic copies and simple electronic copies of the same.

It is also a reality that, in the year 2023, as a result of the adoption of new technologies by broad layers of society, it is increasingly common that, in the private sphere, many people regularly resort to electronic documents and digital signatures as a means to implement and formalize their legal relationships(for example, in the signing of rental contracts, reservation or "earnest money" contracts in the context of a real estate sale and purchase, supply contracts, banking documentation, etc.).

In view of this reality, and of the many queries and doubts I receive from citizens when they come to my notarial office to formalize their public documents, I have considered it appropriate to address this issue in an informative article, in which, through my traditional system of question - short answer, I will try to address the issue in a simple and didactic way, so that any citizen interested in the matter can properly understand these phenomena, their characteristics, differences, and advantages and disadvantages.

What are the differences between entering into a contract in a private document or in a traditional public document?

Traditionally, since time immemorial, when any person wants to formalize a legal act or business(such as, for example, a purchase and sale, a rental contract, etc.), and to record it in a physical document, he/she can choose between two main ways, namely:

The private document.
The public document.

In the case of the "traditional" private document, it consists of a written document on paper, in which one or more persons formalize and express a legal act or business.

<ejemplo>Así pues, por ejemplo, si Clara es propietaria de un piso que quiere alquilar, y alcanza un acuerdo para ello con Manuel, Clara y Manuel formalizarán su contrato de alquiler en un documento privado, esto es, un documento elaborado por ellos mismos (o con la asistencia de un abogado), y firmado por Clara y Manuel de forma manuscrita.<ejemplo>

On the other hand, a "traditional" public document is also a written document on paper, in which one or more persons formalize a legal act or business, but with the key particularity that it is executed before a Notary Public, that is, a public official to whom the law confers the authority of public faith, that is, the power to certify before the whole of society that the facts contained in such document are authentic.

The differences between both are very important, the fact of the participation of the notary in this contract adds to this document qualified as "public" the following guarantees that the private document does not have:

The notary will identify the parties, with their respective official identity documents, in order to verify that they are indeed who they claim to be.
The notary shall verify their legal capacity or capacity of discernment, thus ensuring that the persons involved in the legal act or business are in full intellectual and volitional capacity to give their valid consent to the same.
The notary will verify that the persons appearing have the necessary legitimacy to carry out the legal act or business in question(for example, in the purchase and sale of real estate, the notary will verify that the seller is really the owner of the property to be transferred and that there is no legal limitation preventing the sale).
The notary will ensure the legality of the act or legal business to be formalized, ensuring that all agreements or stipulations comply with current regulations, thus avoiding future disputes between the parties.
The notary will inform and advise the intervening parties on the rights, obligations and legal consequences (civil, administrative, fiscal, etc.) arising from the legal act or business they formalize.
‍Thenotary shall keep the document signed by the contracting parties, thus avoiding any subsequent manipulation. And he will deliver to the signatories an authentic copy (with original value) of the signed document to each of the parties.

Therefore, I believe that the advantages of signing a contract before a notary (public document), as opposed to the option of doing it privately between the parties without the intervention of the notary (private document), are very perceptible.

I make this clear distinction at the beginning of my article so that it is kept in mind at all times before entering into electronic contracting and the issue may be complicated by the emergence of more actors such as the so-called trusted third parties.

Does the traditional public document have more advantages than the private document?

Indeed, the public document, in addition to all the positive aspects indicated above (remember the document that is signed before a notary) grants other additional benefits such as, for example:

The enforceability of the authentic instrument (which allows in many occasions to enforce it judicially in a much faster way than the private document).
Access to the Land Registry and, therefore, to be protected against third parties not initially involved in the formalized contract.
The possibility of constituting certain rights, since in specific cases, the form of a public deed is a prerequisite for the valid constitution of a right (as, for example, in the case of donations of real estate).

<ejemplo>Así pues, siguiendo nuestro ejemplo anterior, si Clara, propietaria de ese piso que hemos comentado, ahora, en lugar de alquilarlo, desea venderlo, y alcanza un pacto con Manuel a tal efecto, lo más adecuado para los intereses de ambas partes sería formalizar esa compraventa en escritura pública, pues ello dotaría al negocio de la máxima seguridad jurídica, tanto para Clara como para Manuel, asegurando así que la compraventa se adecúa a la legalidad vigente y que Manuel, como nuevo propietario, puede inscribir su derecho de propiedad en el Registro de la Propiedad, otorgándole así al mismo la máxima seguridad posible.<ejemplo>

As we can see, in short, the differences between formalizing a legal act or business in a private or public document are many, the advantages of the public document being much greater, as we have been able to appreciate.

What happens when a problem or legal dispute arises over a signed contract?

In practice, it is common that, after formalizing a legal act or business, and translating it into a "traditional" document on paper, a legal conflict is generated as a result, which finally leads to litigation before a court of law.

<ejemplo>Siguiendo nuestro ejemplo, imaginemos que Clara, una vez firmado su contrato de alquiler con Manuel (donde pactaron una renta mensual de 500 € y con entrada en la vivienda en el plazo de 1 mes), durante ese tiempo se arrepiente de ello, porque aparece un nuevo inquilino que le ofrece 700 €, de modo que Clara finalmente no entrega las llaves del piso a Manuel, y lo hace a este otro inquilino, con lo cual Manuel se queda sin el piso al que tenía derecho en base a ese contrato de alquiler firmado, con todos los perjuicios personales que ello le pudiera suponer.<ejemplo>

In this situation, Manuel, if he wants to enforce his rights, will have to file a lawsuit against Clara. We are going to analyze this issue by differentiating whether the lease in question was signed in a private document (the usual for this type of contract in practice) or whether it was signed in a public document (i.e., before a Notary Public).

SCENARIO 1: RESOLUTION OF THE CONTRACTUAL DISPUTE ORIGINATING IN A PRIVATE PAPER DOCUMENT

As we have indicated, in the event that said rental contract has been formalized in a private document, Manuel, in order to enforce his rights, must file the corresponding legal action against Clara, and bring to that legal action, as the main evidence of his claim, the rental contract signed in the private document.

Thus, if Clara, as defendant, in order to achieve a positive result for her interests in the judicial process, bases her strategy on alleging that the rental contract is false (because she did not sign it, because Manuel has invented it, etc.), in such case, once the lawsuit has been served, at the appropriate procedural moment she must challenge the authenticity of the private document, that is, allege that it is not authentic or real.

<ejemplo>En tal caso, para estos supuestos, la ley procesal establece que la parte que lo haya presentado (en nuestro caso, Manuel) deberá pedir el cotejo pericial del documento (esto es, que un perito experto verifique si la letra y/o firma del documento corresponde a la persona cuya autoría se le atribuye presuntamente) o, en su caso, proponer cualquier otro medio de prueba que resulte útil y pertinente a tal efecto. Como vemos pues, en nuestro ejemplo concreto, Manuel, pese a haber firmado su contrato de alquiler y tener todo el derecho del mundo a vivir en esa vivienda, para poder hacer valer sus derechos, al constar en un documento privado cuya autenticidad se ha puesto en duda, se verá obligado a demostrar que dicho contrato de alquiler es auténtico y que el mismo fue realmente firmado con Clara, con todas las dificultades probatorias que ello puede suponer y con el coste económico adicional que también le supondrá demostrar que ello es así.<ejemplo>

SCENARIO 2: RESOLUTION OF THE CONTRACTUAL CONFLICT FORMALIZED IN A NOTARIALLY NOTARIZED PUBLIC DEED

On the other hand, in the event that the rental contract is formalized in a public document (i.e., a deed before a notary), the situation, as we will see below, would change radically.

Thus, once the lawsuit has been filed and the rental contract formalized in a public deed (by Manuel) has been provided, if Clara again bases her judicial strategy on alleging the falsity or inaccuracy of the document provided and, as a consequence, challenges the authenticity of the public document, as we shall see, the way to proceed would be very different.

<ejemplo>En estos casos, tal y como establece la ley procesal, en el improbable caso de que se impugnare la autenticidad de un documento público (pues la ley establece sobre los mismos una presunción de veracidad, conforme los documentos públicos harán prueba plena del hecho, acto o estado de cosas que documenten, de la fecha en que se produce esa documentación y de la identidad de los fedatarios y demás personas que, en su caso, intervengan en ella), el Letrado de la Administración de Justicia (que es un funcionario del Juzgado) se desplazará hasta la Notaría donde se hubiere formalizado la compraventa (en este caso) y procederá al cotejo del documento, esto es, a comparar la copia aportada al proceso con la matriz original de la escritura custodiada por el Notario.<ejemplo>

<ejemplo>Si de este cotejo o comprobación resulta la autenticidad o exactitud del documento (lo que ocurrirá en el 99 % de los casos, salvo anomalía extraña), la ley determina que dicha escritura pública aportada al proceso desplegará plenos efectos probatorios y que, asimismo, las costas y gastos que hubiere originado el cotejo o comprobación correrán a cargo de quien hubiese formulado la impugnación (en nuestro caso, de Clara). Además, la ley también establece la posibilidad de que el Tribunal imponga multas de hasta 600 euros, si la impugnación hubiese sido temeraria (esto es, carente de todo fundamento o razonabilidad).<ejemplo>

<ejemplo>Como podemos apreciar pues, en este caso, como Manuel ha firmado su contrato en documento público, si se pone en duda la autenticidad del mismo, él no tiene que hacer nada, ni demostrar nada, ni gastarse dinero en peritos o cualquier otra prueba, pues simplemente, un funcionario del juzgado compara la escritura aportada con la original que custodia el Notario que la autorizó y verifica si ese documento es real y verídico, o no, con todas las facilidades, seguridad y garantía que ello ofrece, en este caso, a Manuel.<ejemplo>

In short, and by way of summary of all that has been developed, as we can see, the consequences and effects of being involved in a litigation where the key element of proof is a "traditional" document in paper format vary greatly, depending on whether it is a private document or a public document:

‍Inthe case of a private document, it is up to the party providing it to prove that it is real and authentic (with all the difficulties of proof that this may entail, in addition to the economic cost).
Whereas, in the case of the public document, this discussion does not take place, because if any of the parties should allege the lack of authenticity of the document (which is very improbable by the way), it can be verified in a very easy, fast, simple and safe way, with all the guarantee and security that this implies for the party that intends to assert its rights and legitimate interests based on that deed or public document.

Therefore, as it is easy to understand, it is much safer and more reliable for any person to formalize his acts and legal business before a Notary Public, in a public document, than in a private document, because in case problems arise, and we end up in litigation, proving the existence and veracity of the document from which our rights result is infinitely easier and safer in the case of the public document than in the case of private documents.

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Up to this point, I have tried to make clear the difference between entering into a contract before a notary and not entering into a contract before a notary. Having this basic and initial idea clear, let's move on to the digital world and electronic contracting.

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What is an electronic document?

At this point, the truth is that, for many years now, with the advent of new technologies, computers and electronic devices, most people, in addition to formalizing legal acts and businesses in physical documents, in a "traditional" way, enter into a multitude of contracts electronically.

<ejemplo>Pensemos, por ejemplo, cada vez que compramos un producto por internet (vía Amazon por ejemplo), contratamos un servicio (por ejemplo, una nueva línea de telefonía o un seguro) o, también por ejemplo, en el sector inmobiliario, donde cada vez es más habitual firmar contratos de reserva o “de arras” vía electrónica.<ejemplo>

In short, as we can see, it is a reality that new technologies, computers, smartphones, etc., in the middle of 2023, play a fundamental role in our lives, so that it is increasingly common for citizens and companies to formalize their contracts in electronic format, through electronic devices (computers, phones, tablets, etc.).

In view of this, and taking into account the relevant legal consequences that may arise from any contract entered into in electronic format, it is necessary to properly understand what an electronic document is, what its basic regulation is and what its key elements are, in order to be able to correctly deal with this area of contracting.

This being the case, in order to define what an electronic document is and what its basic regulation is, it is first necessary to indicate that, at the European Union level, the reference regulation will be determined by Regulation (EU) No. 910/2014 of the European Parliament and of the Council of 23 July 2014 on electronic identification and trust services for electronic transactions in the internal market (HERE you can consult it if you wish). The aforementioned Regulation (also commonly known as eIDAS Regulation), which is born with the will to create a climate of trust in electronic transactions within the European Union, is therefore, as indicated, the reference standard that we will have to take into account to define what an electronic document is, as well as what are its key elements.

On this basis, Article 3 of the eIDAS Regulation defines an electronic document as "any content stored in electronic form, in particular, text or a sound, visual or audiovisual record".

<ejemplo>Así pues, por ejemplo, en el ámbito de la contratación privada, es perfectamente posible que si Juan es propietario de un coche, que quiere vender a María, Juan y María formalicen ese contrato de compraventa del vehículo a través de un documento electrónico, esto es, un contrato redactado en un ordenador, por ejemplo, en formato Word, el cual posteriormente es firmado digitalmente por ambas partes.<ejemplo>

Likewise, within the scope of our domestic legal system, we must also take into account Law 6/2020, of November 11, regulating certain aspects of electronic trust services (HERE you can consult it if you wish).

What is an electronic signature?

As we have just seen in the previous question, it is possible, and very common, that more and more people and companies formalize their contracts through electronic documents, which opens the following key question or reflection:

As we have seen so far, in the previous section, when any person formalizes a document on paper, in order to express his consent in it, he signs it by handwriting, stamping his signature with a ballpoint pen. However, if the contracting of a product or service is formalized in an electronic document, how is the consent of the contracting parties expressed? Well, no more and no less, than through the electronic signature, which we will analyze below.

Thus, as we have just seen, the electronic signature is the technical instrument that, within the framework of an electronic document, allows us to technically verify that the electronic document has been signed by a specific person and that it has not been altered or manipulated by any of the parties.

<ejemplo>Siguiendo nuestro ejemplo anterior, para que ese contrato electrónico de compraventa de un coche firmado por Juan y María tenga plena validez y ofrezca seguridad jurídica a todas las partes, es necesario poder asegurar que el mismo ha sido firmado por Juan y María (y no por otras personas) y que el contenido del contrato es el original, sin alteraciones o modificaciones (para, por ejemplo, asegurar que el precio pactado fue de 10.000 €, y no otro que se hubiere establecido mediante una falsificación, alteración o modificación posterior del documento).<ejemplo>

That said, from a technical point of view, the electronic signature can be defined as a set of electronic data, associated to an electronic document, whose mission is to identify the signer of the document in an unequivocal way, as well as to ensure the integrity of the signed digital document.

On this basis, the eIDAS Regulation differentiates between three types of electronic signatures, depending on their degree of security:

1. SIMPLE ELECTRONIC SIGNATURE:

In the first place, we find the so-called simple electronic signature, which, as its name indicates, is the one that has a lower degree of complexity and, therefore, offers a lower degree of security and reliability.

<ejemplo>Para comprenderlo mejor, sin duda, nada mejor que un ejemplo: Seguro que la mayoría de nosotros hemos empleado firma electrónica simple cuando, por ejemplo, nos hemos dado de alta en plataformas como Netflix o Spotify. En estos casos, como podemos ver, como consumidores, hemos contratado un servicio (que tiene un coste) vía internet, con unas condiciones y términos de uso, las cuales hemos aceptado a través de un procedimiento de contratación digital, esto es, sin firmar ningún documento en papel físico.<ejemplo>

We will now take a closer look at the simple electronic signature, to better understand what it is and how it works:

They are the easiest and quickest to use, and the least secure, as there is no predefined security standard set by the eIDAS Regulation.
The signatory of the document consents to the document through a procedure established by a service, application or software provider that created the document (such as by checking a consent box, entering a PIN code associated with a user name or number, or inserting a graphic signature).
It is used in practice for documents of little legal relevance and with low risk for the parties.
‍Examplesof use: Registration in digital platforms, acceptance of legal terms and conditions with companies, employee time clocking, package deliveries, hotel services contracting, etc.

2. ADVANCED ELECTRONIC SIGNATURE:

Secondly, we find the so-called advanced electronic signature, which, as its name indicates, given its higher or more advanced technical complexity, offers a greater degree of legal security, as we shall see.

<ejemplo>Así pues, de nuevo, nada mejor que un ejemplo para ilustrarnos: Hoy en día es muy habitual que, cuando cualquier persona quiere adquirir un inmueble, formalice previamente un contrato de reserva o “contrato de arras” en documento privado, el cual se instrumenta a través de un agente inmobiliario mediante un documento electrónico firmado con un sistema de firma electrónica avanzada, como por ejemplo Signaturit, donde, gracias a esta empresa privada, reconocida como prestador de servicios de confianza, se pueden firmar documentos electrónicos que ofrecen garantías técnicas de identificación del firmante y de invariabilidad del documento firmado.<ejemplo>

We will now take a closer look at the advanced electronic signature, to better understand what it is and how it works:

Electronic signatures with a more advanced level of security, which comply with the requirements established in Article 26 of the eIDAS Regulation, specifically:
~They are uniquely linked to a signatory.
~They allow the identification of the signatory.
~They have been created using electronic signature creation data that the signatory can use with a high level of confidence and under his exclusive control.
~They are linked to the signed data in such a way that any subsequent modification of the document is detectable.
As we can see, these are electronic signatures that offer a high level of legal certainty, since they allow the person who signed the document to be identified unequivocally, as well as ensuring that the document has not been altered once it has been signed.
In practice, this typology of digital signatures is offered by the so-called "trust service providers", that is, companies or institutions that provide electronic services capable of creating, verifying and validating electronic signatures. If you wish to obtain more information on this subject, HERE you can find information of interest, at the national level.
‍Examplesof use: As we have seen, signing, for example, through Signaturit, of binding contracts for the reservation of a property, of a "deposit" contract, of a rental contract, etc.

3. QUALIFIED ELECTRONIC SIGNATURE:

In third and last place, we find the so-called qualified electronic signature, which, as we shall see, is the one that offers the highest degree of legal certainty in the field of private electronic contracting.

<ejemplo>Así pues, de nuevo, nada mejor que un ejemplo para ilustrarnos: Cuando cualquier ciudadano debe presentar un documento oficial o solicitud ante la administración vía electrónica (Agencia Tributaria, Seguridad Social, etc.), va a necesitar disponer de una firma electrónica cualificada (vía DNI electrónico, certificado de la FNMT, etc.) para poder firmar digitalmente el documento y que el mismo tenga validez ante dicha administración.<ejemplo>

We will now take a closer look at the advanced electronic signature, to better understand what it is and how it works:

They are based on a qualified electronic signature certificate.
As we can see, these are electronic signatures that offer the highest level of legal security when it comes to identifying the signatory and ensuring the integrity and invariability of the document, as they are created on the basis of technical conditions, regulated by the eIDAS Regulation, which offer the greatest guarantees of computer security in existence.

For example, this type of electronic signature certificate can be obtained through the Fábrica Nacional de La Moneda y Timbre (Spanish Mint) (HERE you can find more information about it), where, as a necessary requirement, the interested party must identify himself physically at a Public Administration office (or, if applicable, via DNIe), thus ensuring that the holder of this digital certificate is the person he actually claims to be.

In order to have this type of electronic signature, it is necessary to use the services of a "qualified trusted electronic service provider" (HERE you can find the list recognized by the Spanish state).
‍Examplesof use: Mainly for relations with public administrations, such as the Tax Agency, Social Security, public registries, public employee procedures.

As we will have the opportunity to analyze later on, within the framework of private contracts or documents, the existence of these trust service providers and electronic signatures (especially advanced and qualified ones) contribute great value to society, since they facilitate the formalization of legal acts and businesses electronically (mainly in those cases in which the contracting parties are physically distant, saving travel and time in the execution of legal acts and businesses) and provide legal certainty to this type of documents.

At this point, having analyzed the different types of electronic signature, from all that has been said so far, and by way of summary, we can see how, within the framework of electronic documents, in order to guarantee the identity of the signatory and the invariability of the document, in addition to the parties signing the document, there is a third agent, that is, the trust service provider, which is responsible, through the relevant technical solutions, for guaranteeing the identity of the person signing the electronic document, as well as the invariability of the same.

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However, this new reality of the private electronic document should not be confused at all with the public electronic document.

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As we will analyze in the questions that will be developed below, in the case of electronic public documents, the advantages of the same are much greater, since also, with the same, we can electronically sign a document so that the identity of the signer and the invariability of the document is assured, but also get many more advantages and benefits that the law grants to the public document, which we will analyze in detail below.

What is an electronic public document?

As we have just seen, in practice, it is very common for individuals and companies to formalize legal acts and businesses, in the private sphere, through electronic private documents(such as, for example, contracts for the purchase and sale of goods and services, leases, in the banking or insurance contracting sector, etc.).

However, it is necessary to know that, in the public sphere (and here we are focusing our attention on the notarial sphere), there are also electronic public documents, whose nature, characteristics and legal effects must also be known.

Thus, as indicated, focusing on the notarial field, it is necessary to begin our analysis by indicating that the Notaries Act (Article 17 bis) establishes that notarial public instruments (deeds, minutes and policies) will not lose their character by the mere fact of being drafted in electronic format with the advanced electronic signature of the notary and, if applicable, of the grantors or intervening parties.

Thus, in a very simple way, we can define a notarial electronic public document as a public document (whether a deed, a notarial deed or a notarized policy) drawn up not on paper (i.e. in its "traditional" form with a physical document), but on an electronic medium (i.e. in an electronic document generated and stored through a computer) and, where appropriate, digitally signed by the grantors or intervening parties and/or the Notary in question.

On this basis, in my opinion, it is necessary for those interested in the matter to understand that, within the concept of "electronic public document", in reality, at present we must differentiate between two major concepts or differentiated areas, such as:

1. TELEMATIC EXECUTION OF PUBLIC DOCUMENTS

First of all, it is undoubtedly necessary to refer to the possibility of signing public documents telematically, that is to say, by means of a videoconference and electronic signature system where it will not be necessary for the client to physically go to the Notary's office, which as we will see in the following questions, is a very recent novelty that will be possible very soon in Spain.

As we shall see, this novelty has been introduced in our legal system thanks to Law 11/2023 (HERE you can consult it if you wish). It is necessary to make it clear that, as established by law, the authorization or notarial intervention of the electronic public document will be subject to the same guarantees and requirements as that of any notarial public document and will produce the same effects.
Consequently, regardless of the electronic, computer or digital support in which the notarial public document is contained, the notary must attest to the identity of the grantors, that in his opinion they have capacity and legitimacy, that the consent has been freely given and that the granting is in accordance with the law and the duly informed will of the grantors or intervening parties.
Public documents authorized by a notary in electronic format, as well as those authorized on paper, enjoy public faith and their content is presumed to be true and complete in accordance with the provisions of this or other laws.

In the following questions, we will explain the details of this new measure, such as, for example, from when it will be possible to digitally sign public documents, what kind of documents can be signed telematically, how the procedure to do so will be, etc.

2. OBTAINING ELECTRONIC COPIES OF PUBLIC DOCUMENTS

Also, beyond this possibility of granting public documents telematically, within the concept of electronic public document we find the possibility of obtaining electronic copies (authorized or simple) of public documents.

Thus, regardless of the form in which the public document has been signed (either on paper in a physical form at the Notary's office, or electronically with this new procedure), the law allows citizens to obtain electronic copies (both authorized and simple) of their deeds, minutes and policies executed before a Notary Public.
These electronic copies, which will be issued with the electronic signature of the Notary, will have the same legal value as a traditional copy obtained on paper, and will be obtained through the notary's electronic headquarters (HERE you can access it).

As we can see, and by way of summary, in effect, the law allows the existence and full validity of electronic public documents, with the same conditions and legal nature as "traditional" paper-based notarial documents.

From when is it possible to sign by video signature with the notary?

As we have already mentioned, it will soon be possible to sign public documents telematically, that is, by means of a videoconference system with the Notary and electronic signature, which will allow the client to sign the public document without the need for physical presence in the notary's office.

As we have already mentioned, this novelty has been introduced in our legal system thanks to Law 11/2023 (HERE you can consult it if you wish). However, it is necessary to indicate that, given the importance of the changes established by the law and the technical implications of this new measure, the legislator has established a vacatio legis of 6 months, so that these novelties will not enter into force until November 9, 2023.

What documents can be signed electronically before a notary?

Indeed, as mentioned above, once Law 11/2023 comes into force, it will be possible to execute public documents telematically, that is, through a videoconference system that will allow the client to execute public deeds without the need to physically go to a Notary's office.

<ejemplo>Así pues, por ejemplo, una persona podrá firmar una escritura pública, de forma telemática, desde su casa o desde el domicilio social de una empresa.<ejemplo>

Having said this, going into detail, it is necessary to specify that this notarial intervention through videoconferencing will cover any kind of notarial documents, but only a set of specific legal acts or transactions determined by the new law:

The mercantile policies (in this case, the remission of the policy by the credit institution to the notary's electronic office will imply its consent to the documented business, unless otherwise provided in the text of the policy).
The incorporation of companies, appointments and powers of attorney of any kind provided for in commercial legislation, as well as the granting of any other corporate act (provided that in the case of containing contributions of the partners to the capital stock are monetary).
Powers of attorney for legal representation, for actions before public administrations, as well as electoral powers, and powers of attorney for specific acts. However, it will not be possible to authorize general or preventive powers of attorney by videoconference.
Revocation of powers of attorney (except preventive general powers of attorney ).
Letters of payment and cancellations of guarantees.
The minutes of general meetings and the minutes of reference in the strict sense.
The testimonies of legitimization of signatures.
Wills in a situation of declared epidemic (for the duration of the obligation of confinement).
Declarations of new construction without extinction of condominium, nor adjudication of ownership, and the division of horizontal property.
Conciliation (unless the notary deems it convenient to be physically present for the proper completion of the case).
Those legal acts and businesses for which, according to their nature, it is established by regulation.

Where and how to do it?

With regard to the specific procedure to be able to grant these public documents telematically, we can succinctly advance that the citizen interested in it, once chosen the Notary to authorize his document, must appear electronically in the notarial electronic headquarters, that is, a portal created for this purpose by the General Council of Notaries to facilitate the electronic relations of citizens with the Notary's Office (HERE you can access it if you wish), and you must identify yourself there by means of one of the electronic identification systems provided for in the legislation in force.

Once the person appearing has been identified and the necessary legal capacity and legitimacy have been assessed by the Notary, the act of granting the public document will be carried out through a videoconference system, which will allow the citizen to read the document in its entirety through said platform.
At the conclusion of the act, both the grantor and the Notary in question will sign the document with their electronic signature.
After that, also as a novelty, the law establishes that the matrix of the signed public instrument will be reflected in an electronic protocol, under the Notary's faith, and also, as it cannot be otherwise, the client will have the possibility of obtaining electronic copies of his notarial documents.

Can I sign with any notary I want?

In fact, at this moment the existing regulations do not establish any limitation when choosing the Notary with whom the electronic notarial document is to be formalized by telematic means, so that the citizen, when accessing the notarial portal to carry out the procedure, may choose the Notary he/she wishes from among all those available in the Spanish state (all without prejudice to the general limitations established by law for specific acts or businesses, or other regulatory or sectorial regulations of the Notary's Office that may be developed in the future establishing limits to such competence).

How to obtain the original electronic copy of the signed document?

Citizens who wish to obtain an electronic copy of their public document (whether authorized on paper or electronically) may request it through the notary's electronic office (HERE you can access it if you wish).

Once duly registered in said telematic platform, the citizen may make his request to obtain a copy, which will be assessed by the Notary, and once the legitimate interest required by law has been assessed, the Notary will issue the requested copy in electronic format, with the electronic signature of the Notary, which will be sent to the client through the same notarial portal.

In any case, the electronic copy will have the same value and legal effects as the traditional paper copy.

What is the electronic matrix?

As is well known, until now, when any client went to a notary's office to sign a public document (a deed, a notarial act or an intervened policy), the original of the signed document (that is, the physical document on paper support signed in handwritten form), which is called the matrix, remained under the custody of that Notary, all duly regulated with the formalities and deadlines established by the Notary Law.

<ejemplo>Así pues, por ejemplo, si cualquier persona, una vez firmada una escritura, pasados unos años quiere una copia de la misma, puede acudir físicamente a esa notaría y obtener la misma, en base a esa matriz original debidamente guardada y custodiada por el Notario.<ejemplo>

Well, in this matter, Law 11/2023 also brings novelties, since by virtue of the same, once it enters into force, the so-called electronic protocol (or "electronic matrix") will be established, by virtue of which, from now on, the matrices of public instruments (which until now were the original physical document signed by the client at the notary's office) will also have a computerized reflection in the corresponding electronic protocol under the notary's faith.

Thus, from now on, all public documents signed in a notary's office (either in person or by the new telematic means), will have a matrix but with a double format, one on paper and the other electronic, so that this is intended to achieve a dual function, ie:

The paper protocol will fulfill a static or document preservation function.
The electronic protocol will fulfill a dynamic function of support for the preparation and circulation of electronic copies.

Regarding this electronic matrix, we can highlight the following key aspects provided by the law:

The incorporation to the electronic protocol or electronic operations record book will take place in each case with the authorization or intervention of the public deed or policy, which will be recorded by means of a diligence in the paper matrix expressing its computer transfer.
The instruments incorporated into the electronic protocol shall also be considered originals or matrices. However, in case of contradiction between the content of the paper matrix and the electronic protocol, the content of the paper matrix shall prevail over that of the electronic one.
The electronic protocol shall be kept in custody by the notary in charge of its conservation by means of its electronic deposit at the General Council of Notaries, taking into account that such electronic deposit shall be made by encrypting its contents, and that only the notary custodian of the protocol who holds the encryption keys shall have access to it.

What are the differences between an electronic private document and an electronic public document?

As we have seen, in 2023, in our social and economic reality, electronic, public and private documents coexist, each of them with its own characteristics and nature, which must be differentiated, because sometimes, some people confuse them erroneously or even maliciously (questioning the usefulness of the electronic public document versus private documents with digital signature).

Thus, as we have seen, in electronic private documents, thanks to the electronic signature, in its highest security levels (advanced and qualified electronic signatures), it is possible:

Identify the persons who have signed this document.
Verify that the document has not been altered after signing.

Undoubtedly, this provides great value and legal certainty in the area of private contracting, although, as we shall see, in no case can it be equated to the legal certainty offered by the notarial public document (as some people have come to insinuate in a completely erroneous manner), and this is so for two main reasons:

Firstly, because in the notarial public document, thanks to it, we can not only identify with certainty the persons who sign the document and verify that it has not undergone subsequent alterations or modifications (as the electronic private document does), but, being authorized by a Notary Public, the level of legal certainty of the document is much higher, since a public official, impartial and independent, among other key aspects, has verified the legal capacity of the contracting parties, their legitimacy, the adequacy to the legality of the formalized legal act or business and, also, showing all the legal consequences of the same, with the security and guarantee that this offers.

Likewise, the fact of formalizing our legal act or business in an electronic public document offers us greater guarantees of preservation of the document.

Without forgetting the additional advantages that we have already mentioned at the beginning of this article (such as the enforceability of the public document or the access of rights to public registries, among others).

<ejemplo>Así pues, por ejemplo, es posible formalizar una póliza de préstamo entre un banco y un cliente en un documento privado electrónico. No obstante, si este mismo préstamo se formaliza en un documento público electrónico (tal y como será posible en pocos meses), el negocio ofrecerá muchas más garantías, pues el Notario que lo autorice verificará la capacidad jurídica de las partes contratantes (es decir, que se hallan en plenas facultades para firmar ese contrato), que tienen legitimidad para ello, que el contrato es legal y que, asimismo, en caso de incumplimiento, el banco acreedor tendrá mucho más fácil recuperar su dinero en un proceso judicial ejecutivo.<ejemplo>

And also, secondly, because in the event of a legal dispute where the authenticity of the document or the identity of its signatories is called into question, the regime for challenging the electronic document, as it cannot be otherwise, is still much more favorable in the case of the electronic public document, since, as established in the procedural law:

If the authenticity of an electronic private document signed on the basis of an unqualified trust service (i.e., a simple or advanced electronic signature) is challenged, the party interested in the effectiveness of the document will be obliged to prove, by any means valid in law (such as a computer expert report, for example), the authenticity, The party seeking to assert its rights on the basis of an authentic document is obliged to prove that the document is indeed authentic and true, with all the evidentiary and economic difficulties that this entails, as was the case with the "traditional" private document (on paper).
~If the authenticity of a private electronic document signed on the basis of a qualified trust service (i.e., a qualified electronic signature) is challenged, it will be presumed that the document meets the challenged characteristic and that the trust service has been properly provided if it was, at the relevant time for the purposes of the discrepancy, on the trusted list of qualified providers and services.
~However, if the electronic document is nevertheless challenged, the burden of carrying out the verification shall correspond to the person who has filed the challenge, taking into account that, if such verifications obtain a negative result, the costs, expenses and fees arising from the verification shall be borne exclusively by the person who has filed the challenge. Likewise, if, in the opinion of the Tribunal, the challenge was reckless, it may also impose a fine of between 300 and 1200 euros.
On the contrary, in the case of electronic public documents, since they enjoy public faith, their content, once again, is presumed to be true and complete, so that, in the unlikely event that any procedural party challenges their authenticity, they will proceed in the same quick, simple and easy way as in the case of "traditional" public documents (on paper), i.e., they will be checked against their matrix by the Legal Counsel of the Administration of Justice, i.e., a very simple procedure that will be carried out by a court official, without any difficulty for the party basing its claim on the public document, to its comparison with its matrix by the Counsel for the Administration of Justice, that is, a very simple procedure to be carried out by a court official, without difficulty for the party basing its claim on the authentic electronic public document, and at no cost, with all the positive effects that this entails for the party basing its claim on said authentic document, as can be seen.

What conclusions can we draw from all that has been analyzed in this article?

In my opinion, the following ten key points can be adopted as the main conclusions of this article:

When any person wants to formalize a legal act or business, in order to duly record it and have it on record, it can be formalized either through a private document or through a public document.
As we have had occasion to see, the formalization of legal acts or businesses through a public document presents many more advantages, since the intervention of a public official in it, the preventive legal security offered by it will be much greater.
In the event of a legal dispute where the key element of proof is a physical document, the holders of the rights contained therein will have a much easier time proving the authenticity of the document if it is a public document.
Nowadays, the formalization of legal acts and businesses through digital documents is a reality that has come to stay and that, for sure, will be more and more common in all areas of our economic and social reality.
In the field of electronic contracting, the existence of digital signatures (especially in the case of advanced and qualified signatures), offered by these trust service providers that we have had the opportunity to analyze, offer a great service to society, since they facilitate the formalization of legal acts and businesses in a digital environment, making it possible to ensure the identity of the signatory of such digital document, as well as the invariability of the same.
In a few months it will be possible to sign certain public documents telematically, that is, through a videoconference and digital signature system, without the need for the client to go in person to the Notary's office.
During all these remaining months until the full entry into force of this measure, it is necessary to clear up many unknowns about the measure, both at a technical and procedural level, as well as at a legal level (for example, the existence or not of limitations or rules regulating the territorial competence of the Notary Public empowered to sign public documents telematically).
Likewise, in a few months it will be possible for any person to obtain electronic copies of their public deeds through an electronic portal set up by the Spanish Notary's Office.
We must not confuse the private electronic document and the public electronic document, because although both bring great benefits to society, the advantages of the public electronic document are much greater, since as in the private electronic documents signed with advanced or qualified electronic signature, by means of a public electronic document, we can guarantee the identity of the signatory and the invariability of the document, but in addition, to this we add all the classic advantages of the public document, which gives the legal business formalized through it much more preventive legal security.
In the event of a legal dispute where the key element of proof is an electronic document, if it is a public document, the ease of proving its authenticity is still much greater than in the case of private electronic documents. Trust service providers in no case replace the function of the notary, and what this entails: public faith and preventive legal certainty.

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I hope that this first article on electronic contracting has been able to clear or clarify basic concepts that must be well understood and managed for the real changes that are coming in the coming months, especially in the notarial field. I will continue to report on the subject, thank you very much!

December 2023

1.- RENUNCIATION OF INHERITANCE AND VULGAR SUBSTITUTION. IF THE TESTAMENTARY DESIGNATION TO THE SUBSTITUTES IS GENERIC ("CHILDREN" OR "DESCENDANTS"), WITH THE SIMPLE AFFIRMATION THAT THESE DO NOT EXIST, IT IS ENOUGH TO FORMALIZE THE RENUNCIATION AND SUBSEQUENT ADJUDICATION TO WHOM IT CORRESPONDS:

Attached (HERE) the Resolution of the DGSJFP of October 30, 2023 (BOE of November 22, 2023), where the DG resolves a case of an acceptance of inheritance of a woman, deceased widow, with two daughters, whom, in her will, she designated as heirs in equal parts, with vulgar substitution by their respective children or descendants. When the acceptance of the inheritance is formalized, one of the sisters renounces to the inheritance, and in the deed, the renouncing one simply states that she has no children or descendants (without proving it in any way), so that the other sister is awarded the whole inheritance. The Registrar denies the registration because he understands that the non-existence of children or descendants must be accredited (by notoriety deed or by any means valid in Law).

The authorizing Notary appealed the qualification and the DG, aligning itself with the latter, revoked the qualification note, confirming that, when the testamentary substitution is made in a generic form (with expressions such as "children" or "descendants", that is to say, without nominative appeals), the simple manifestation of the non-existence of these is sufficient to formalize the renunciation and subsequent acceptance by the heir favored by said renunciation.

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2.- SALE OF LEASED PROPERTY. IT IS NOT NECESSARY TO PROVIDE THE TENANT'S WAIVER OF THE RIGHT OF FIRST REFUSAL IN ORDER TO REGISTER:

Attached (HERE) the Resolution of the DGSJFP of November 8, 2023 (BOE of November 30, 2023), where the DG resolves a case of a sale and purchase of leased real estate (premises), in whose deed the Notary certifies that he has been shown a deed where the lessee waives his right of preferential acquisition recognized by the LAU.

The Registrar denies the registration, alleging that it is necessary that he also be accredited, with evidence, the details and circumstances of the waiver (providing a copy of the waiver deed where the Registrar can analyze its terms, the legitimacy of the person granting it, etc.). The DG revokes the qualification note, considering that the Notary's attesting that the lessee has waived his right of first refusal is sufficient, since the Law does not attribute powers to the Registrar to qualify the terms of such waiver.

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3.- IN CATALONIA THE PRE-LEGATEE CAN TAKE POSSESSION, BY HIMSELF, OF THE PRE-LEGACY ASSETS:

Attached (HERE) the Resolution of the DG de Dret, Entitats Jurídiques i Mediació de Catalunya of October 27, 2023 (DOGC of November 8, 2023), where a case is resolved regarding an acceptance of inheritance with several co-heirs, where one of them, in addition, being a pre-legatee of a property, accepts his part of the inheritance and, also, unilaterally, is awarded said property that forms the pre-legatee. The Land Registry refuses the registration on the grounds that, in order for such adjudication to take effect, the agreement of all the heirs is necessary.

The authorizing Notary Public appeals and the DG, aligning itself with the latter, revokes the qualification note, recalling that, in accordance with the CCCat (art. 427-22), the legatee can take possession of the legacy himself if it is a pre-legacy.

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4.- SALE AND PURCHASE WITH RESOLUTORY CONDITION IN CATALONIA. INTERPRETATION OF THE PERCENTAGES OF NON-PAYMENT NECESSARY TO TERMINATE THE CONTRACT:

Attached (HERE) the Resolution of the DG de Dret, Entitats Jurídiques i Mediació de Catalunya of November 10, 2023 (DOGC of December 1, 2023), which resolves a case related to a deed of termination of sale, in accordance with an agreed and registered resolutory condition, due to the non-payment of amounts owed.

In this case, the DG establishes the correct interpretation of article 621-54 CCCat, by virtue of which, in order to terminate the sale and purchase due to non-payment of the deferred amounts (so that the sellers recover the ownership of the property) it is necessary that the unpaid amounts exceed 15% of the full price (total price of the sale and purchase), so that, only once unpaid amounts have accumulated that exceed 15% of the total purchase price, the sale and purchase can then be terminated.

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5.- ARE REGISTRABLE THE AGREEMENTS OF A GENERAL MEETING TO WHICH THE ADMINISTRATORS DO NOT ATTEND:

Attached (HERE) the Resolution of the DGSJFP of November 15, 2023 (BOE of December 4, 2023), where the DG resolves a case of a General Meeting of Shareholders to which, the administrators of the company do not attend.

The Mercantile Registrar refuses the registration of the resolutions adopted, for this reason, under Article 180 of the LSC ("the administrators must attend the general meetings"). The Notary appealed the qualification, and the DG, aligning itself with the latter, confirmed that, in effect, the non-attendance of the administrative body at the general meeting is not a reason for the nullity of the same, but what, if any, will generate the liability of the administrators provided for in article 236 LSC.

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NOTARIAL MINUTES OF THE MEETING. IN ORDER TO BE ABLE TO REGISTER THE PREVENTIVE ANNOTATION IN THE MERCANTILE REGISTRY, IT IS NECESSARY TO PROVE THAT THE NOTARIAL REQUEST TO THE ADMINISTRATORS HAS BEEN MADE:

Attached (HERE) the Resolution of the DGSJFP of November 14, 2023 (BOE of December 4, 2023), where the DG resolves a case of refusal of preventive annotation of request of notarial minutes of meeting, in the Mercantile Registry. In this case, a shareholder wants the notarial minutes of a general meeting to be taken and, to this end, sends an email to the chairman of the board of directors requesting this, who replies in the affirmative. Said shareholder tries to have the preventive annotation made in the Mercantile Registry on the basis of this Email, and the Registrar denies it, stating that for it to be possible to register the preventive annotation, it is necessary to provide the notarial request to the administrators.

The DG confirms the qualification note and reminds that, in order to be able to practice the preventive annotation that is sought, it is necessary to prove that the notarial requirement has been made to the administrators (art. 104.1 RRM).

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7.- SALE OF REAL ESTATE BY RELIGIOUS CONGREGATION:

Attached (HERE) the Resolution of the DGSJFP of October 23, 2023 (BOE of November 22, 2023), which may be useful in this case of transfers, as it summarizes and analyzes in detail the legislation and documentation necessary to formalize the sale of a property belonging to a religious congregation.

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8.- ELEVATION TO PUBLIC DEED OF THE LEASE CONTRACT SUBSCRIBED BY THE PREVIOUS OWNER OF THE PROPERTY:

Attached (HERE) the Resolution of the DGSJFP of October 2, 2023 (BOE of November 2, 2023), where the DG resolves an appeal filed against the refusal of the registration of a deed of elevation to public of a lease contract.

Lease agreement entered into by the previous owner (as lessor) and a lessee. The owner does not pay the mortgage loan that encumbers the leased property and this, finally, is subject to foreclosure, in which process, the property is awarded to a third party, in favor of which the property is currently registered. In this foreclosure process, the new owner who is awarded the property is aware that the same is leased, and the award, in the judicial process, is granted safeguarding the rights of said lessee. Subsequently, the lessee tries to register his right, and the Registry denies it for lack of successive tract (art. 20 LH), that is to say, that the person who signed the lease as lessor does not coincide with the current registered titleholder.

The DG revokes the qualification, considering this case an exception to the general principle, since in the foreclosure proceeding in which the current registrant was a party, the tenant's right to occupy the property was safeguarded.

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9.- HORIZONTAL PROPERTY. FROM PRIVATE ELEMENT TO COMMON ELEMENT. THE CORRECT WAY IS THE AGREEMENT OF AFFECTATION AND CONVERSION INTO COMMON ELEMENT:

Attached (HERE) the Resolution of the DGSJFP of November 14, 2023 (BOE of December 4, 2023), where the DG resolves an appeal filed against the refusal of the registration of a deed of segregation of a private element and subsequent sale in favor of the community of owners (to convert it then in common element of the horizontal property).

The DG confirms the defect and, in summary, tells us that if you want to convert something private into a common element, the correct way is not its sale in favor of the community, but its configuration as a common element, modifying the description of the building, and with the unanimous agreement of the community of owners as it affects the constitutive title.

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10.- NEW FUNCTIONALITIES IN THE ELECTRONIC HEADQUARTERS OF THE TAX AGENCY OF CATALONIA:

New features are summarized (HERE) and improvements in the electronic headquarters of the ATC:

Tax on property transfers and documented legal acts (ITPAJD): New features have been incorporated in the telematic forms for forms 600 and 620 and in the help program for forms 650 and 660:

Adaptations to the telematic form of the ITPAJD model 600 to admit foreign transferors without tax identification number in transactions at the DRG rate (guarantee and loan rights in rem).
Adaptations to the telematic form model 620, sale and purchase of certain used means of transport, to allow exporting the self-assessment and recovering its data when there is more than one acquirer, in the case of the purchase of a boat, and to show separately the types of motorhome vehicle.

Regarding inheritance and gift tax (ISD):

Adaptations of the inheritance modality aid program to introduce current or savings account deposits with IBAN format.

Likewise, the automated incorporation of the public deed in the ITPAJD (form 600) and ISD (forms 650, 651 and 653) self-assessment files has been introduced . Therefore, it is no longer necessary for the citizen to provide the public deed if the notary's office has previously sent the notarial informative declaration to the Tax Agency of Catalonia.

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11.- LCI MINUTES. IT IS NECESSARY TO ASK THE CLIENT HOW HE WANTS HIS FUTURE AUTHORIZED COPIES OF BOTH THE MORTGAGE LOAN AND THE SALE AND PURCHASE:

Attached (HERE) Note from the Board of Directors of the Notarial Association of Catalonia in which, in response to a communication received in several notaries' offices from the bank ING (requesting that all copies of their CV + PH deeds be issued in electronic format), it is indicated that, in the CV + PH, it is the buyer (who pays for the deed) who must choose the format of their authorized copies (paper or electronic).

For this purpose, it is recommended to ask the client about this issue in the pre-LCI minutes, record it in the minutes, and based on the client's preference, issue the copy as requested by the acquirer.

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12.- INSTRUCTION FOR THE VERIFICATION OF REAL ESTATE VALUES 2024:

Attached (HERE) the Instruction for the verification of real estate values of the Tax Agency of Catalonia for taxable events (ITP, Inheritance and Donations) for the year 2024.

It should be remembered that this table is of vital importance when we do not have the reference value of the cadastre of the property in question. Always, in the first place, the reference value for tax purposes must be taken into account. Suppletory, in the absence of this, this table will continue to be used as it was traditionally done. Multiplying the cadastral value by the corresponding multiplier coefficient, in order to obtain the minimum tax value.

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13.- HORIZONTAL PROPERTY AND SEGREGATION / DIVISION OF PRIVATE ELEMENT. IF THE STATUTES ALLOW IT, THEY ALSO, IMPLICITLY, AUTHORIZE THE NECESSARY WORKS TO EXECUTE IT:

Attached (HERE) the Resolution of the DGSJFP of November 2, 2023 (BOE of November 30, 2023), where the DG resolves a case related to a segregation of a local, resolving that, when in the constitutive title of the horizontal property the possibility of segregating or dividing privative elements is foreseen without need of collective agreement of the owners' meeting, implicitly the works and modifications that this segregation needs are being authorized, unless express clause to the contrary.

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14.- SALE OF HABITUAL RESIDENCE OF THE FAMILY. THE CONSENT OF BOTH SPOUSES IS REQUIRED, ALSO FOR FOREIGNERS:

Attached (HERE) the Resolution of the DGSJFP of October 25, 2023 (BOE of November 22, 2023), where the DG resolves a case of a sale of a property belonging to a foreigner, resolving that the application of article 1320 CC (and therefore its counterpart in the Catalan civil code) regarding the need for consent of both spouses to dispose of the habitual residence of the family, is independent of what the governing law of the matrimonial property regime provides, and that according to the Regulation 24 June 2016, it is also applicable to foreign marriages.

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15.- IMPORTANT DISTINCTION BETWEEN PARTITION MADE BY THE TESTATOR AND PARTITIONAL RULES:

Attached (HERE) the Resolution of the DGSJFP of October 27, 2023 (BOE of November 22, 2023), where the DG resolves a case related to a deed of acceptance of inheritance and hereditary adjudications, in which, synthesizing the jurisprudence of the Supreme Court in this matter, it clarifies the important differentiation between a partition made in the will itself and the mere "partitional rules".

The Center points out that when the testator carries out in the will all the partitional operations (inventory, appraisal, liquidation and adjudication of lots) we are dealing with a true partition made in the will. On the other hand, when the testator limits himself to expressing his will so that at the time of the partition, certain assets are awarded to each heir in payment of his assets, we are dealing with mere partition rules.

November 2023

1.- BE VERY CAREFUL. ERRORS IN NOTARY'S OFFICE THAT GENERATE CIVIL LIABILITY:

Attached (HERE) a Note from the General Council of Notaries, detailing the main claims that the Civil Liability Insurance for Notaries is having to deal with in the event of negligence, errors or professional malpractice. Below are some outstanding examples:

Various complaints regarding authorized documents with persons with impaired mental capacity. Exercise extreme caution with elderly persons showing signs of cognitive impairment, incapacitated / with support measures for the exercise of legal capacity, under guardianship, conservatorship, etc.
Identity theft. Be extremely diligent when verifying the identity of the person with his/her ID / NIE / Passport, etc. photo.
Verification of mortgage encumbrances. Take extreme precautions with mortgages that have been economically cancelled, but not registered. Require documentary proof that the secured loan has been paid.

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2.- NEW REMINDER. NEW DEVELOPMENTS IN FOREIGN INVESTMENTS:

Attached (HERE) an OCP informative note with a summary of the main novelties of Royal Decree 571/2023, on foreign investments. The following are considered as foreign investments:

Foreign investments in Spain:

Participation of a NON-RESIDENT in Spanish companies exceeding 10% of the capital stock.
Acquisition of real estate in Spain by NON-RESIDENTS in excess of 500,000 euros.
In the event that the funds used in the investment originate in non-cooperative jurisdictions, prior declaration is required. The order of February 9, 2023 (HERE) contains the list of non-cooperative jurisdictions.

Spanish investments abroad:

Participation in the capital of non-resident companies exceeding 10% of the capital stock.
Acquisition of real estate located abroad for more than 300,000 euros.
In the event that the destination of the investment is a non-cooperative jurisdiction, the prior declaration is also required.

Obligations of the Notary:

When the regulatory development of the Royal Decree comes into force, it will be mandatory for the Notary to send the information on the foreign investment to the General Council of Notaries.
During the transitional period, the telematic filing of tax returns is done through AFORIX.
The obligation of the notary public to send to the Directorate General for International Trade and Investments, in writing, during the months of January and July of each year, a list of those intervened transactions considered as foreign investment, during the preceding six-month period for which the notary public has not been requested to submit the corresponding declaration, remains in force.

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3.- IT IS POSSIBLE TO DECLARE THE END OF WORK PARTIALLY IN A HORIZONTALLY DIVIDED BUILDING:

Attached (HERE) the Resolution of the DGSJFP of September 19, 2023 (BOE of October 26, 2023), where the DG solves a case of a building, with several floors, divided horizontally, where the end of work of only part of them is declared (specifically, the first floor and the second floor, not the rest of the floors).

In this case, the DG accepts this, stating that there is no inconvenience in that the proof of completion of the work may be partial, by phases, and even by floors; since it may happen in practice that there are unfinished elements, without this obstructing the registration of the completion of others, as long as it is duly accredited.

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4.- PARTITION OF INHERITANCE BY ACCOUNTANT PARTITIONER. CARE WITH THE CONFLICTS OF INTEREST:

Attached (HERE) the Resolution of the DGSJFP of September 5, 2023 (BOE of October 25, 2023), where the DG resolves that in a deed of acceptance, partition and adjudication of inheritance, the accountant-partidora has not limited herself to the strictly partitional and, in the adjudications, has carried out dispositive functions that require the intervention of the heirs.

In addition, there is a conflict of interest between two sibling co-heirs, since one is the guardian of the other, and therefore exercises his legal representation. As both of them are interested in the inheritance, and one of them is legally represented by his brother, there is a conflict of interests and in this case the intervention of a legal defender is necessary.

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5.- SALE OF PARKING SPACE IN AN UNDIVIDED PROPERTY. IT IS NECESSARY TO DESCRIBE CONCRETELY THE PARKING SPACE:

Attached (HERE) the Resolution of the DGSJFP of July 28, 2023 (BOE of October 12, 2023), where the DG resolves a case of sale of an undivided participation (1.329%) of a property, destined to parking of vehicles. The deed contained the description of the registered property as a whole (consisting of the basement floor of a building intended for parking and storage rooms), but not the description of the specific parking space whose exclusive use and enjoyment was attributed to the undivided interest of the transferred property.

The DG, aligning itself with the Registrar, considers that it is necessary that, in the deed of sale, the boundaries and surface area of the parking space to be transferred be described in detail.

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6.- LAND REGISTRY AND LAW 11/2023. NEW DEADLINES FOR QUALIFICATION OF DOCUMENTS:

Attached (HERE) the Resolution of the DGSJFP of July 7, 2023 (BOE of August 15, 2023), which approves the schedule for implementing the law 11/2023 of digitalization of registry actions. This law establishes the electronic signature of all registry entries and documents and the keeping of a protocol in electronic format. The aforementioned resolution includes two annexes with a schedule for the implementation of the electronic signature in each of the Land Registries of Spain, and extends the ordinary term of registry qualification from 15 working days to 30 working days, for a period of one month from the date on which the implementation of the digital actions begins.

Attached to the summary is the resolution with the annexes containing the respective starting dates of the electronic signature implementation phase, so that all employees of the notary's office can consult them and take into account that within one month from that date, the qualification period is not 15 days as usual, but 30.

The importance of this consultation lies in the fact that cancellations of mortgages registered in all the registries in Spain are authorized, and each of them has a date foreseen for the implementation of this electronic signature!

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7.- CIVILIAN CITIZENSHIP AND ITS DIFFICULTIES OF PROOF. IT IS NECESSARY TO GIVE MUCH IMPORTANCE TO THE MANIFESTATION THAT IS INCLUDED IN THE DEED:

Attached (HERE) the Resolution of the DGSJFP of October 3, 2023 (BOE of November 2, 2023), where the DG solves a case related to the proof of the civil residence of a deceased and its importance to determine the applicable inheritance law.

In this case, the deceased, in her will, states that she has common civil status. However, her heir (husband), when accepting the inheritance, in said deed of acceptance states that the civil domicile of the deceased was that of Ibiza, and based on the same, he is awarded the entire inheritance (unlike this, if the civil domicile were common, as the deceased had no descendants, but did have living ascendants, these would be legitimaries). When this deed of acceptance of inheritance is presented for registration, the Registrar rejects it, considering that the manifestation of the common civil tenancy made by the deceased in her will prevails.

The DG, aligning itself with the Registry, considers that the proof of the civilian citizenship is very difficult (except in those cases in which the express manifestation is registered in the Civil Registry). Therefore, in case of doubts, the declaration of the interested party made before a Notary Public (since it has been made being duly informed by the notary public) must prevail, even over what may result from extrajudicial documents (such as a census certificate from which it is clear that the person has been registered at that address for more than 10 years), since administrative residence does not always coincide with the actual address (which is what determines civil residence).

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8.- THE ADMINISTRATOR WITH EXPIRED OFFICE CAN CALL THE GENERAL MEETING FOR THE RENEWAL OF THE ADMINISTRATIVE BODY AND TO PRESENT ANNUAL ACCOUNTS:

Attached (HERE) the Resolution of the DGSJFP of October 31, 2023 (BOE of November 21, 2023), in which the DG resolves that the General Meeting convened by an administrator with expired office is valid, provided that such General Meeting is convened to renew the administrative body and to approve the annual accounts of several fiscal years as a way to overcome the closing of the Land Registry.

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9.- PREVENTIVE POWERS AND INTERREGIONAL ASPECTS:

The following is a brief summary of a paper on preventive powers and aspects to be taken into account in the field of inter-regional law:

Great usefulness of the preventive power of attorney: it avoids the family having to resort to judicial support measures (which take more than a year to set up, plus the cost of lawyers, etc.).
Soon it will be possible to consult telematically, in the Civil Registry, the validity of these powers of attorney. Caution to be taken into account whenever an attorney-in-fact goes to the Notary to sign with one of these powers of attorney.
Doubts about applicable law when a client goes to a notary to sign a preventive power of attorney: We must always resort to the criterion of the habitual residence (art. 9.6 Cc) to constitute the power of attorney under the CCCat or the Cc.
Always remember to include (or not), at the client's request, the clause on whether judicial authorization is required for the same acts for which it is required by the guardian.
In Catalonia, in the next few months, there will be relevant developments in this matter, since the draft bill to reform Book II of the Catalan Civil Code on this matter will soon enter the Parliament as a Bill, so that, if it is processed ordinarily, in a few months there will be a new regulation on this matter with very deep modifications that we will have to study in order to adapt the deeds.

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LAW 11/2023. DIGITALIZATION OF NOTARIAL AND REGISTRY ACTS (ELECTRONIC PROTOCOL, VIDEO SIGNATURES and ELECTRONIC AUTHORIZED COPIES):

Attached is an article from our BLOG summarizing the 10 main points of the entry into force of Law 11/2023 (HERE).

There are three main changes that will affect our daily lives:

The first is the deposit of all the signed documents in the electronic notary's office, being a faithful reflection of the paper document (matrix, united, diligences and notes).
The second major change is the possibility of video-signing certain types of documents with a digital certificate once the citizen is registered in the notarial portal;
and finally, the creation of electronic authorized copies that replace paper with the same effectiveness and validity.

After 21 days of implementation we have encountered the following casuistry:

REGARDING THE NOTARIAL PORTAL (PNC):

Citizens who wish to carry out procedures must fill in the form and validate their cell phone and contact email address. The procedure is simple and is completed by uploading the identity document to the platform. We have validated it and it works correctly for citizens identified with DNI, NIE and PASSPORT.
The most practical way to access and sign is to use a digital certificate. We recommend that of the Fábrica Nacional de Moneda y Timbre, although there are several issuing entities certified by Ancert.
The accessing citizen will be able to consult all his deeds history between January 1, 2007 and November 8, 2023. The deeds signed after the entry into force of the law are yet to be published.

AS FOR THE VIDEO SIGNATURE:

Since the beginning we have been able to successfully perform 2 video signatures . Although it is a very new technology and has its limitations, it has not been complex to perform once the client is registered in the portal and has the digital certificate to sign.
The connection is made with an application integrated in the web browser and is intuitive and simple. We expect that as citizens register, the number of documents granted by this method will increase.

REGARDING THE ELECTRONIC AUTHORIZED COPY:

We have already issued the first electronic authorized copies with secure verification code (CSV).
The process is managed from Word itself and in parallel to the deposit of the document, although it can be issued at a later date, always for documents signed after November 9, 2023.
The document is published in the notary's electronic office and the CSV is generated quickly and easily in SIGNO to be sent to the client.
Once uploaded to the electronic site, it is shared with the client by means of an e-mail in which we provide a link to its electronic authorized copy. This delivery method provides authenticity and legal validity before third parties. We believe that little by little it will replace the paper because for its consultation and validation it is not necessary to be registered in the notary portal of the citizen.

most frequent doubts about electronic protocol and video signature:

In SIC, within the section "Law 11/2023. Digitalization of notarial and registry actions" you can find a document with questions and answers about existing doubts in relation to the implementation of Law 11/2023, two publications have been issued: volume 1 and volume 2.

Also attached (HERE in singular and HERE plural), basic templates for any electronic deed granted by video signature through the Notarial Citizen Portal.

MODIFICATION OF THE SINGLE COMPUTERIZED INDEX. NEED TO REPORT SEPARATELY THE NUMBER OF PAGES ON PAPER / TELEMATIC SUPPORT:

As of November 9, 2023, the Single Computerized Index is modified to incorporate as a mandatory field to be reported in each public instrument the number of pages of the paper support matrix separately from the number of pages in the electronic support.

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For any questions regarding the new digitalization (both employees and customers), please contact Antonio Alba for resolution by e-mail: antonio@jesusbenavides.es

October 2023

1.- CENTRAL REGISTRY OF REAL PROPERTY. EXPLANATORY NOTE

Attached (HERE) clarifying note from OCP on several issues related to the Central Registry of Real Estate Titles and the obligations of the Notaries in this respect:

For the granting of the legal transaction, obtaining the e-mail address referred to in Article 4 of RD 609/2023 is not a requirement of validity, since it is not part of the identification requirements of the beneficial owner.
Percentage of ownership: this information should only be included when a new manifestation record has to be made in the event of a discrepancy between the content of the BDTR and the grantor's manifestation.

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PURCHASE AND SALE OF REAL ESTATE FORMALIZED BY A REPRESENTATIVE WITH REVOKED POWER OF ATTORNEY. BE VERY CAREFUL WHEN VERIFYING THE VALIDITY OF POWERS OF ATTORNEY AND CORPORATE POSITIONS.

Attached is the Resolution of the DGSJFP of July 26, 2023 (BOE of September 28, 2023).. The DG resolves a case of a CV of a real estate, in which the seller is represented by an attorney-in-fact, stating that his power of attorney is in force, and the Notary, giving his positive sufficiency judgment in the deed. However, from the data in the Mercantile Registry, it appears that this power of attorney was revoked a few days ago, the revocation having been published in the BORME, once registered in the Registry (from which moment it is enforceable against third parties), on the same day of the signing of the CV.

The DG confirms the qualification of the Registry, so that the buyer's right cannot be registered since the seller was not duly represented by a person with sufficient powers to formalize the sale.

To take into account the case and make the pertinent consultations at the Registry as close as possible to the signing of the deed (if possible, on the same day), in order to avoid such cases.

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3.- SL. CAPITAL REDUCTION DUE TO THE PURCHASE OF SHARES. AMOUNT OF THE RESTRICTED RESERVE

Attached is the Resolution of the DGSJFP of July 24, 2023 (BOE of September 27, 2023).. The DG resolves the typical case of "exit" of a partner of a SL. To do so, the company repurchases all the shares of that shareholder (for a redemption value higher than the nominal value) and then reduces the share capital by the same amount (thus proceeding to its amortization) and, also, endow a restricted reserve, for the amount of the reduction (taking as a reference the nominal value of the shares, and not the value reimbursed to the shareholder, which as indicated, is higher), to guarantee the rights of the creditors.

The Registry qualifies negatively because it considers that the amount of the reserve must be equal to "the value of what was received by the partner" (i.e., the total amount reimbursed, and not only the nominal value of the units).

The DG revokes the Commercial Registrar's qualification, determining that in these cases the amount of the restricted reserve must be equal to the nominal value of the redeemed shares, and not to the amount reimbursed to the outgoing shareholder.

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DE FACTO GUARDIANSHIP. INTERPRETATIVE DOCUMENT FOR BANKING PROCEDURES

It is reported that in SIC, within the link "Law 8/2021 in support of disability" a framework protocol signed between the State Attorney General's Office and the banking sector is made available to employees to clarify the powers of the de facto guardian in the field of banking transactions.

This document has also been the subject of a detailed analysis in an article in our blog (HERE you can read it).

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5.- FOREIGN INVESTMENTS. NEW REGULATIONS TO BE TAKEN INTO ACCOUNT

Staff is informed of the recent approval of Royal Decree 571/2023, of July 4, on foreign investments (HERE you can consult it), which must be taken into account when entering into transactions with non-residents. Specifically, it modifies the previous regulations in the following fundamental aspects:

1.- The following are considered foreign investments for the purposes of making the corresponding subsequent declaration to the Investment Registry of the Ministry of Economy:

Participation by non-residents in Spanish companies when such participation exceeds 10% of the capital stock or of the voting rights of the company (previously the participation was required to be 50%).
Acquisition of real estate in Spain by non-residents when the amount exceeds €500,000 (previously the minimum limit was €3,000,000).

In these cases the non-resident holder is obliged to declare the investment before the Investment Registry of the Ministry of Economy, using the forms resulting from Transitional Provision 3 of the Royal Decree (forms DP1, D1A D1B, DP2, D2A, D2B).

2.- If the transaction has been intervened by a Notary Public, he/she must communicate the investment to the General Council of Notaries through the notarial electronic office (SIGNO) and, in any case, must warn the person appearing of the obligation of presentation.

In the case that the investments considered foreign (in accordance with article 4 of the Royal Decree), have origin in a country of non-cooperative jurisdiction (former tax havens), which are those included in the Order of February 9, 2023, it will be necessary to make a prior declaration and the Notaries must demand it before the granting, and expressly warn of it in the public document.

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6.- PRACTICAL NOTES ON DOCUMENTS INVOLVING FOREIGNERS

Attached (HERE), an interesting article by a fellow Notary, where a series of practical reflections to be taken into account when a foreign individual is involved in a public document. By way of summary, the most relevant ones are highlighted:

Identification. The general rules of the Notarial Regulations apply. Specifically, in the case of EU foreigners, this is done either through their passport or their national identity card.
NIE: Foreigners who, due to their economic, professional or social interests, are related to Spain, must be provided, for identification purposes, with a personal, unique and exclusive sequential number. This number is necessary for all operations with tax implications.
Translation: Unless the notary knows the foreign language, the provisions of Article 150 of the Notarial Regulations must be complied with and an interpreter must be requested.
Means of payment: Be very careful and diligent with regard to money laundering prevention. It is highly advisable to demand that the deposit and payment accounts be in Spanish banks. If there are foreign banks or accounts of third parties, the most complete and reliable information possible about the origin of the funds will be required, requiring documentary justification (certificates of ownership of the accounts, contracts justifying the origin of the funds, etc.).
Apostille: It is essential to have an apostille for documents issued abroad.
Real estate transactions. Remember the withholding of 3% of the price (Non-Residents Income Tax) and the inversion of the taxpayer in the "municipal capital gain".

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7.- REQUEST FOR COPIES OF WILLS TO THE ARCHIVES OF THE NOTARIAL ASSOCIATION OF CATALONIA

Information of interest when requesting copies of wills from the College. In order to avoid problems in case of discrepancies in dates, the College requests that, when a copy request is submitted, the corresponding death and last will certificates be attached to the request for a copy of the will in order to more accurately identify the request.

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8.- TELEMATIC SIGNATURE OF NOTARIAL DOCUMENTS. ENTRY INTO FORCE

As previously reported, next November 9, Law 11/2023 will enter into force, which will allow the telematic signature of public documents (that is, through a videoconference system with the Notary and electronic signature, without the need for the client to physically go to the Notary's office). HERE you can find an article in the blog of Jesus Benavides' Notary's office with more details (which documents can be signed, procedure, etc.).

In order to be pioneers with this novelty and give the best service to the clients, a new section has been created in the web page of the Notary's office of Jesus Benavides (Video signature) where, by means of didactic videos, the whole process to be followed by any citizen who wants to put this possibility into practice is explained.

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For any questions in this regard (both from employees and customers), please contact Antonio Alba for resolution at his e-mail address: antonio@jesusbenavides.es.

September 2023

1.- COMPUTATION OF DEADLINES FOR HOLDING THE GENERAL MEETING. THE DAY ON WHICH THE MEETING IS HELD CANNOT BE INCLUDED IN THE COMPUTATION.

Attached is the Resolution of the DGSJFP of July 11, 2023 (BOE of July 28, 2023).. According to it, and by way of summary, the DG reminds us of the rules for calculating the deadlines for the call of a general meeting in a capital company. As is well known, article 176 LSC determines that one month (SA) or 15 days (SL) must elapse between the call and the holding of the general meeting. For the computation of these periods, the starting day begins on the day on which the notice is sent to the last of the shareholders and, in order to determine the day on which the period ends, the day on which the general meeting is held cannot be computed.

Therefore, one month must elapse for corporations and 15 days for limited liability companies, and it is the day after these deadlines when the General Meeting can be validly held.

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2.- DOCTRINE OF THE GENERAL DIRECTORATE ON TARIFF MATTERS

Attached (HERE) an interesting document containing a summary of the doctrine of the General Directorate of Legal Security and Public Faith, in tariff matters, for the years 2020 - 2023. To consult in case of doubts on how to minute specific deeds.

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3.- NEW DEVELOPMENTS IN THE SINGLE COMPUTERIZED INDEX

It is reported that, recently, the Single Computerized Index has included a series of new features to improve the reflection of the legal transactions that are granted in public instruments.

Specifically, new legal acts are created to duly collect:

Acts of acquisition or preservation of civilian citizenship.
Deeds of support measures and assistance constitution deeds (and their equivalent in Catalonia),
Minutes of omission of protocol or Registry Book number (to solve the unfortunate case that one or more numbers remain without a document actually authorized or intervened).

Other minor modifications:

Proof of the means of payment in the deposit records.
Specification of the ownership (or not) in the sale and purchase of shares and stocks.
Incorporation of entities with or without legal personality, where the information of their Tax Identification Number is required (if the information is obtained after the granting and it has not been possible to obtain it from the client, when the deadline for submitting the index has expired, the lifting of the rule must be requested through the usual channel).

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4.- THEORY OF THE COMPLEX LEGAL BUSINESS. PURCHASE + MORTGAGE OF REAL ESTATE BY MARRIED PERSON. THE CONSENT OF THE OTHER SPOUSE IS NOT NECESSARY IF THE MORTGAGE IS MADE SIMULTANEOUSLY WITH THE PURCHASE. CARE IN CASE OF FOREIGNERS

Attached (HERE) an interesting article summarizing the doctrine of the DG on the theory of the complex legal business. It deals with cases where a married person buys a property alone, and then mortgages it. As it is known, the general rule determines that, in order to mortgage the habitual residence, even if it belongs to only one of the spouses, the consent of the other spouse is necessary. As an exception to this general rule, the theory of the complex legal business arises, by virtue of which, the consent of the non-owner spouse is not necessary in the constitution of mortgage on the habitual residence immediately after its purchase, that is to say that the mortgage is signed with the number immediately after the protocol number of the purchase-sale.

In the case of foreigners, BE CAREFUL, since the DG does not admit the doctrine of the complex legal business, unless that foreign law allows it and it is so accredited (therefore, it must be verified by means of a report of the notary if the foreign law that governs the specific matrimonial regime of the clients admits or not this theory of the complex business).

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5.- PUBLIC NOTARIZATION OF CORPORATE RESOLUTIONS. A GOOD DEED CAN SAVE A BAD CERTIFICATE

Attached is the Resolution of the DGSJFP of July 10, 2023 (BOE of July 28, 2023).. According to it, and by way of summary, the DG determines that, in the context of an elevation to public of corporate resolutions of an SL (cessation and appointment of positions), if the certificate does not indicate the quorum for adoption of the resolutions, but in the deed it is specified (through a statement of the administrator), this is sufficient to register the agreement in the Commercial Registry.

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6.- PRIOR IN TEMPORE, POTIOR IN IURE. WHAT ARRIVES FIRST AT THE REGISTRY, IS WHAT PREVAILS (EVEN IF THE LAW IS LATER).

Attached is the Resolution of the DG of Law, Legal Entities and Mediation of July 17, 2023 (DOGC of July 31, 2023).. According to it, and by way of summary, the DG determines that what accesses first to the Registry, is what prevails.

A case in which, in 1986, by means of a private document, a life usufruct on a property is constituted. Subsequently, on 02/09/2023, this private document is elevated to public deed and is presented for registration in the Land Registry. However, the Registrar refuses the registration, since on 02/03/2023, that is, 6 days before, a deed of bequest was presented for registration, in which this right of usufruct is awarded to a third party, on the basis of an acceptance of inheritance of a person deceased in 2022.

In this case, the DG recalls the basic principle of operation of the Registry, i.e., prior in tempore, potior in iure, so that what arrives first at the Registry and is registered (usufruct of 2022 presented on February 3, 2023), prevails over the other rights (in this case, a usufruct constituted in private document in 1986 and presented for registration on February 9, 2023 on the basis of a deed of elevation to public deed).

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7.- TABLE OF REGULATIONS ON NATIONALITY AND MARITAL STATUS

Attached (HERE) an interesting document that includes a table of regulations on nationality and civil status, where we can find links to regulations and Resolutions of the General Directorate on various matters such as Civil Registry, certifications, economic regime of marriage, etc.

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8.- NATIONALITY OATH. VARIOUS ISSUES TO BE TAKEN INTO ACCOUNT

Attached (HERE) Circular of the DG regarding the competence of the specific Civil Registry where to formalize the declaration of option of the Spanish nationality, as well as the oath or promise. In the same one it is established that the competence will correspond to the Civil Registry Office of the applicant's domicile.

Also attached (HERE) Circular of the General Director of Legal Security and Public Faith, which determines the inappropriateness of granting certificates of oath of nationality when indications are detected that the applicant has performed acts incompatible with good civic conduct (such as, for example, the fact that the applicant is incarcerated in a penitentiary center).

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9.- JUDICIAL CHALLENGE OF NEGATIVE QUALIFICATIONS. SERVICE TO WHICH WE CAN RESORT AS A NOTARY'S OFFICE.

Attached (HERE) an informative document of the General Council of Notaries, through which, a service available to Notaries, to be able to appeal judicially those negative ratings (or also Resolutions of the DGSJFP) that may involve a corporate interest for Notaries.

Thus, in the event that the employee encounters a negative rating that he/she considers may affect the Notary's office as a whole, he/she may raise this possibility with the Notary, which may be requested through the channels indicated in the attached document.

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10.- THE ADVISABLE ACT OF MANIFESTATIONS PRIOR TO THE GRANTING OF A DEED IN WHICH A PERSON WITH DISABILITY INTERVENES.

The informative circular 3/2021, of September 27th of the Permanent Commission of the General Council of Notariesproposes that prior to the execution of a deed in which persons with disabilities are involved, a record of manifestations should be drawn up in which the circumstances that may influence the execution of the legal transaction in question should be recorded. The aforementioned record may include, among other circumstances:

Statements by the person with a disability himself/herself, for example, the statement of that person recognizing that he/she is selling for a price below market price for a specific need or convenience, or the reasons for which he/she renounces a specific inheritance.
Statements of persons assisting the disabled person in the exercise of his or her capacity. For example, the declaration of the de facto guardian, lawyer, incidental companion, etc., stating that he/she has recommended the disabled person to grant a deed of sale because it is necessary for his/her future support and maintenance, or to settle outstanding debts.

This act is an essential complement to the notarial capacity judgment, and provides clarity and security for future disputes and possible claims. It is recommended that the person requesting the record be the person with a disability or his or her assistant.

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11.- THE CENTRAL REGISTRY OF REAL TITLE IS CREATED.

Royal Decree 609/2023, of July 11, 2023, creating the Central Registry of Real Estate Titles. Royal Decree 609/2023, of July 11, 2023, which creates the Central Registry of Real Estate Titles.. This registry must be consulted by all parties obliged by law to control money laundering, including notaries. However, until the data is uploaded to this registry, for which 9 months are given, the Royal Decree establishes that the traditional sources must continue to be used (Database of the Beneficial Ownership through Signo).

July 2023

1.- NEW PAID LEAVE OF 15 CALENDAR DAYS FOR DOMESTIC PARTNERS

Royal Decree-Law 5/2023 is published in the BOE and enters into force (HERE you can consult it), by virtue of which, a paid leave of 15 calendar days is recognized for the fact of constituting (and registering) as a stable couple. All stable couples that are constituted from now on can be informed about it, so that they can enjoy this new leave.

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2.- NEW REGULATION OF STRUCTURAL MODIFICATIONS OF COMMERCIAL COMPANIES

The aforementioned Royal Decree-Law 5/2023 (HERE you can consult it) has repealed the former Law 3/2009, of April 3, 2009, on structural modifications of commercial companies (transformation, merger, spin-off, global assignment of assets and liabilities, etc.). Thus, from now on, the new legal regime for structural modifications can be found in the aforementioned Royal Decree-Law 5/2023. To be taken into account when any officer prepares one of these operations (he/she should consult the new regulation and adapt the legal quotations to the new regulatory text).

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3.- FOREIGNERS' DIVORCE DECREES, WITH ADJUDICATION OF REAL ESTATE, MUST BE REGISTERED IN THE CENTRAL CIVIL REGISTRY.

Attached is the Resolution of the DGSJFP of June 13, 2023 (BOE of July 10, 2023).. According to it, and by way of summary, the DG determines that, in case of divorce (OF FOREIGNERS whose marriage is not registered in the Spanish Civil Registry), if in the sentence a property is awarded to one of the ex-spouses, in order to register it in the Property Registry, it is necessary that, previously, this divorce sentence is registered in the Central Civil Registry.

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4.- REGISTRATION OF PROPERTY AND PRIOR IN TEMPORE. SOMETIMES YES, SOMETIMES NO, WHAT IS FILED LATER HAS PRIORITY OVER DOCUMENTS FILED EARLIER.

Attached is the Resolution of the DGSJFP of June 15, 2023 (BOE of July 10, 2023).. According to it, and as a summary, the DG solves a curious case:

CV + PH is signed and submitted for registration, qualified with remediable defects.
A correction is presented, and being the entry in force (that is to say, not yet registered the VC + PH), an order of the AEAT enters in the Property Registry with a prohibition to dispose, due to tax debts.
The Registrar negatively qualifies the CV + PH (filed before the writ) on the grounds of public order.
The Notary appealed and the DG agreed with him, determining that if this order comes from an administrative procedure where the civil validity of the legal transaction is not questioned (remember, tax debts), the negative qualification does not proceed, since the CV + PH have been presented before in the Registry (prior in tempore potior in iure).
However, the DG reminds us that if the injunction had been issued in the context of criminal proceedings where the validity of the business is questioned (for example, an alleged fraud in the VC), the suspension of the registration would be appropriate (even if the injunction was subsequent), for reasons of general interest / public order.

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5.- NOTHING CAN BE REGISTERED IN FAVOR OF A COMPANY WITH A REVOKED CIF.

Attached is the Resolution of the DGSJFP of June 16, 2023 (BOE of July 10, 2023).. According to it, and by way of summary, the DG determines that, in the context of a sale and purchase, if the acquiring company has the CIF revoked, the acquisition cannot be registered in its favor. It is important to take into account and always remember, when a company is involved, to consult the existing database on the subject.

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6.- IT IS POSSIBLE TO REDUCE CAPITAL STOCK BELOW 3,000 EUROS IN AN EXISTING COMPANY

Attached is the Resolution of the DGSJFP of June 13, 2023 (BOE of July 10, 2023).. According to it, and by way of summary, the DG solves the following curious case:

3,000, executes a capital reduction, as a result of which, its resulting capital stock figure falls below 3,000 euros.
The Registrar suspends the registration as he considers that this figure is below the legal minimum, as he considers that SLs of less than 3,000 euros of capital are only possible at the time of incorporation.
The DG revokes the qualification of the Registrar, considering that it is possible to execute a capital reduction in an SL whose result is a share capital of less than 3,000 euros.

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CAPITAL STOCK INCREASE AND PREEMPTIVE SUBSCRIPTION RIGHTS. TIME MUST BE RESPECTED

As a result of a transaction formalized at the Notary's office, it is recalled that in the context of a capital increase of a corporation, the shareholders' pre-emptive right to capital increases arises from the moment of publication of the offer for subscription of the new shares in the Official Gazette of the Commercial Registry, or from the written communication to each of the shareholders. Such subscription may be made by the shareholders within the period established by the Shareholders' Meeting, which may not be less than one month from the publication or communication.

Therefore, these deadlines must be taken into account and respected when formalizing this type of transaction (so that it is not possible for the subscription of the new shares to be carried out at the same Meeting of the resolution, unless all the shareholders have attended the meeting).

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8.- CIVIL LIABILITY OF THE NOTARY. VERY IMPORTANT TO TAKE INTO ACCOUNT IN ORDER TO AVOID THIS KIND OF MISTAKES.

Attached is a link to an interesting doctrinal article (HERE) in which the civil liability of the Notary Public is analyzed. Of special interest, there is a section with details of specific cases (for example, omission of charges, insufficient powers of attorney, lack of information regarding the tax effects of the granting, etc.).

It is strongly recommended that all employees of the Notary's Office read the article and these specific cases to avoid making these types of errors and the liability associated with them.

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9.- CIVIL REGISTRATION AND OATH OF NATIONALITY AND NOTARIZED MARRIAGES. IMPORTANT ISSUES TO BE TAKEN INTO ACCOUNT

Attached is a document from the General Directorate of Legal Security and Public Faith (see PDF attached to this email) which clarifies several issues related, above all, to the documentation to be submitted by the interested parties in the acts of nationality oath and in the marriage proceedings before a Notary Public, as well as aspects related to the procedure to be taken into account in both grants of nationality and marriage.

June 2023

1.- ARTICLES OF ASSOCIATION. NOTICE OF MEETING. THE CLAUSE IN THE BYLAWS THAT ALLOWS THE NOTICE OF THE MEETING TO BE SENT TO THE SHAREHOLDERS BY ORDINARY MAIL (WITHOUT ACKNOWLEDGEMENT OF RECEIPT) IS NOT VALID:

Attached is the Resolution of the DGSJFP of May 10, 2023 (BOE of June 1, 2023).. According to them, and by way of summary, the DG reminds us that (in the framework of the incorporation of an SL), the statutory clause that allows the meeting notice to be sent to the shareholders by ordinary mail (without acknowledgement of receipt) is not admissible, since for the notice to be valid, it is necessary that the system of transmission allows verification of the receipt of the notice by the addressee.

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2.- IN THE DEED OF EXTRAJUDICIAL SALE OF MORTGAGED PROPERTY IT IS NECESSARY THE RELIABLE NOTIFICATION OF THE EXECUTION TO THE HOLDERS OF SUBSEQUENT CHARGES:

Attached is the Resolution of the DGSJFP, dated May 11, 2023 (BOE of June 1, 2023). Case of extrajudicial foreclosure of mortgaged property, in a notary's office, where there is a resolutory condition subsequent to the mortgage in favor of a company. The company is notified of the foreclosure proceedings by registered mail with acknowledgement of receipt, but the delivery is negative, after which the deed is granted. The DG, aligning itself with the thesis of the Registrar, does not accept this, since it considers that when the extrajudicial foreclosure of a mortgaged property is formalized by means of a deed, it is necessary to notify reliably the procedure to all the holders of charges or rights subsequent to the mortgage being foreclosed, so that if it is decided to send the notification of the procedure by registered mail with acknowledgement of receipt, and its delivery to the addressee is negative, it is appropriate to make a personal notification, by the Notary, by means of a deed of notification (art. 202 Notarial Regulations).

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3.- RECTIFICATION OF MORE THAN 10% OF THE LAND AREA. IT IS NOT POSSIBLE TO REGISTER IT "LITTLE BY LITTLE":

Attached is the Resolution of the DGSJFP, dated May 12, 2023 (BOE of June 1, 2023). A deed is granted for the rectification of the size of the property, by the "simplified way" of article 201.3 of the Mortgage Law(for differences that do not exceed 10%), but when analyzing the square meters stated in the registry and the meters declared now (from 9,403 to 10,377), it is appreciated that the difference is higher than 10%. The Registrar suspends registration and subsequently, the Notary presents a deed of correction where it is requested to register only the excess of capacity up to 10%. The Registrar qualifies again negatively, and the DG, aligning with the Registrar, confirms that this is not possible, since it is not possible to register "little by little" or "by parts" a rectification of capacity, so that if the same is higher than 10%, the ordinary procedure of article 201.1 of the Mortgage Law must be used, and not the simplified procedure of article 201.3.

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4.- MINUTATION OF "MINOR CONCEPTS". WHAT CAN BE CHARGED AND WHAT CANNOT:

Interesting entry from the blog "justitonotario" (HERE) which analyzes a Resolution of the Directorate General of January 3, 2023 (the full text can be consulted in a link of the aforementioned blog), which resolves an appeal by a private individual against the minutes of a Notary of a deed of sale. By way of summary, it determines that:

What is witnessed and what is not? It is the Notary who decides.
Mercantile Registry Report: Not applicable.
Actual Holder Consultation: Yes.
Blank sides of checks: correct.
Incorporation to the copy of a folio for the consignment of notes: correct.
Diligences: Must be on record in order to be minutable.
Simple copies and agreement of assumption of expenses by the buyer: If the buyer assumes the expenses, this includes the copies necessary to comply with the obligations of communication of the formalized business.
Number of simple electronic copies: 2 (for communications to Cadastre and City Hall, respectively).
Number of simple paper copies: 3 (to liquidate ITP, "plusvalía" and various formalities, respectively).
At the moment of indicating the number of copies desired by the grantors: At the time of signing.
What can we consider as testimonies? The transcription of the data of the intervening company; the elaboration of the necessary card to be able to carry out the telematic liquidation; the testimony by request of registry information; the consultation of Real Titularity; the simple note of the Registry; the receipt of the IBI; the descriptive and graphic cadastral certification (to the margin of the extra-land registry management also minutable); the checks that accredit the means of payment; the certificate of debts of the community; the label of the Energetic Certification or the whole certificate and respecting what is needed according to the cases; the proof of reception of the Town hall of the communication of the article 110.6.b) and the verification of CSV`s.
Security seal: Yes, it is minuted.
Note from the Registry: It can be a supplement (in the margin of the testimony).

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5.- IT IS NOT POSSIBLE TO BE 2 THINGS AT THE SAME TIME. IT IS NOT POSSIBLE TO BE A MEMBER (NATURAL PERSON) OF THE BOARD OF DIRECTORS OF A COMPANY AND, AT THE SAME TIME, ALSO BE A NATURAL PERSON REPRESENTING A COMPANY THAT HOLDS THE POSITION OF MEMBER OF THE SAME BOARD OF DIRECTORS:

Attached is the Resolution of the DGSJFP of May 23, 2023 (BOE of June 16, 2023).. According to them, and by way of summary, the DG determines that, in a 3-member board of directors, it is not possible for the same natural person to hold the position of member of the board and, at the same time, the position of natural person representing a company that is also a member of said board, since this would imply that, de facto, a single person would have the right of veto for the adoption, or not, of any agreement, in addition to being able to generate situations susceptible to conflict of interest. In any case, if the board had more than 3 members, the issue would be more debatable and the specific case would have to be analyzed in order to reach a conclusion in this respect.

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6.- SALE OF REAL ESTATE BY A COMPANY REPRESENTED BY AN ADMINISTRATOR WITH HIS POSITION NOT REGISTERED IN THE MERCANTILE REGISTRY. IT IS POSSIBLE IF THE NOTARIAL JUDGMENT OF SUFFICIENCY IS WELL DONE:

Attached is the Resolution of the DGSJFP of May 9, 2023 (BOE of May 29, 2023).. According to them, and by way of summary, the DG reiterates its already consolidated doctrine and determines that, in a case of an SL selling a property, represented in the sale by its administrator, without the position still registered, it is possible to formalize the operation if the notarial judgment of sufficiency is made in the correct way . In particular, the deed should contain all the circumstances foreseen by the law in order to understand the appointment of the administrator as valid:

The resolution of the duly called General Meeting.
Acceptance of appointment,
The notification or consent, as the case may be, of the holders of the previous registered offices.

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AMENDMENT OF THE COMMERCIAL REGISTRY REGULATIONS IN ORDER TO ADAPT THEM TO THE EUROPEAN UNION REGULATIONS ON DIGITAL PROCESSES.

HERE you can consult the aforementioned reform of the Mercantile Registry Regulations, published in the Official State Gazette of June 14. Based on the same, as key aspects:

The assignment of a Unique European Identifier (EUID) to all capital companies and branches is foreseen, allowing them to be unequivocally identified through a system of interconnection of all EU commercial registries.
The possibility of creating and closing branches telematically/online is foreseen.
Its entry into force is delayed by one year, counting from the publication in the Official State Gazette of Law 11/2023 (i.e., May 9, 2024).

May 2023

1.- WAIVER OF INHERITANCE OF MINORS AND CONFLICT OF INTEREST. ASPECTS TO TAKE INTO ACCOUNT:

Attached is the Resolution of the DG of Law, Legal Entities and Mediation of the Generalitat de Catalunya, dated February 20, 2023 (DOGC of March 2, 2023). According to it, and by way of summary, the DG reminds us that in the renunciation of an inheritance in favor of minors, the general rule is that it must be formalized in a public deed by the parents, with judicial authorization (art. 236-27 CCCat) or, alternatively, by the two closest relatives (art. 236-30 CCCat). In case of conflict of interest of one of the parents, the renunciation is made by the other parent with the consent of the two relatives. If the conflict of interest affects one of the two relatives, he/she must abstain or, if necessary, the successive relative must be called upon to substitute him/her.

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2.- LAND REGISTRY. IT IS NOT POSSIBLE TO REQUEST SIMPLE NOTES NEITHER BY EMAIL NOR BY MEANS OF A DOCUMENT PRESENTED BY TELEMATIC WAY:

Attached are the Resolutions of the DGSJFP of March 27, 2023 (BOE of April 18, 2023) and of March 28, 2023 (BOE of April 18, 2023). According to them, and by way of summary, the DG reminds us that simple notes cannot be requested either by email or by means of a request submitted in a document through the Registry's telematic document filing system. The ordinary way is through the telematic portal of Registradores.org or via Telefax in the case of continuous notes from the Notary's office.

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3.- ASSIGNMENT OF PROPERTY IN EXCHANGE FOR A LIFE ANNUITY SECURED BY A CONDITION PRECEDENT AND A REAL RIGHT OF MORTGAGE. YOU CANNOT MORTGAGE WHAT DOES NOT YET BELONG TO YOU:

Attached is the Resolution of the DGSJFP of March 28, 2023 (BOE of April 18, 2023). According to it, and by way of summary, the DG reminds us that you cannot mortgage what is not yet yours. An assignment of a property in exchange for an annuity is formalized in a public deed. Assignor (elderly person), assigns the property to a third party (assignee), in exchange for an annuity. The assignment is formalized with a suspensive condition, so that the transfer of ownership will take place when the assignee party proves that it has paid the agreed pension in full (it is understood that upon the death of the assignor). Likewise (to guarantee that those obliged to pay the pension will pay it), the assignee constitutes a mortgage on said property, in favor of the assignor, as an additional guarantee for the payment of the life annuity. The registration of the mortgage is denied since the condition precedent has not yet been fulfilled, so that the assignees have not yet acquired title to the real estate (condition precedent pending fulfillment) and, therefore, cannot mortgage something that does not yet belong to them.

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4.- MORTGAGE AND DOMICILE FOR NOTIFICATION PURPOSES. IT CANNOT BE A FOREIGN DOMICILE:

Attached is the Resolution of the DGSJFP of March 30, 2023 (BOE of April 18, 2023). According to it, and by way of summary, the DG reminds us that when formalizing a real right of mortgage, the deed must contain an address of the debtor for the purpose of notifications and requirements, which must be located in Spain, so that it is not admissible to indicate an address of the debtor abroad, for these purposes.

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5.- DEED OF EXTINCTION OF STABLE COUPLE AND DISSOLUTION OF CONDOMINIUM (APARTMENT IN COMMON). IT CAN BE GRANTED WITH MINOR CHILDREN IF COVENANTS THAT AFFECT THE CHILDREN ARE NOT INCLUDED IN THE DEED:

I attach the Resolution of the DG of Law, Legal Entities and Mediation of the Generalitat de Catalunya, dated April 19, 2023 (DOGC of April 24, 2023). According to it, and by way of summary, the DG determines that when there is a stable couple with children and with a house in common, when the stable couple is extinguished by cessation of the cohabitation, although there are those minor children, they can formalize the extinction of the stable couple in the deed and agree in the same one the dissolution of the condominium of the property that they had in common. However, this will only be possible if the deed of termination of the stable partnership does not include measures that affect the children, such as an agreement, a parentality plan, an alimony, or a visitation regime (in which case, logically, it would require judicial authorization).

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6.- DEED OF MATERIAL DIVISION OF A PRIVATE ELEMENT OF A PROPERTY SUBJECT TO THE HORIZONTAL PROPERTY REGIME ONLY A SIMPLE MAJORITY IS REQUIRED:

I attach the Resolution of the DG de Dret, Entitats Jurídiques i Mediació de la Generalitat de Catalunya, dated May 5, 2023 (DOGC of May 15, 2023). According to it, and by way of summary, the DG determines that in the case of an old building with a "singular" horizontal division (divided into 4 entities, one of which includes 13 apartments susceptible of individualized use), if the bylaws do not expressly allow it, then the building's bylaws must be modified, if the bylaws do not expressly allow it (in which case no agreement of the Meeting would be required) it is possible to formalize a material division of this entity that includes those 13 floors, in order to create 13 independent registry properties, being only necessary a resolution of the Meeting approved by simple majority (that is, it would not be necessary an agreement with qualified majorities of 4/5).

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7.- DEED OF RECTIFICATION OF ERROR (OF SURFACE) IN THE DESCRIPTION OF A PROPERTY (PRIVATE ELEMENT) SUBJECT TO HORIZONTAL PROPERTY REGIME. IT IS NOT REQUIRED DECLARATION OF NEW OLD WORK BY THE COMMUNITY OF PROPRIETORS:

Attached is the Resolution of the DGSJFP, dated April 18, 2023 (BOE of May 8, 2023). According to it, and by way of summary, the DG resolves a case in which an overground floor, registered with a useful surface of 47.51 meters, is rectified to 97 meters (since in fact that was the real and correct surface), by means of a deed granted by the registered owner of that property, based on a cadastral and graphic certification and an architect's report (that accredit that it is an error and that that floor has that surface from the moment of the construction), as well as by means of an agreement of Meeting (adopted by unanimity) that consents to this rectification. In this case, the DG confirms that this deed is sufficient to register the modification of the surface of the apartment, without the need of a deed of declaration of old new construction, by the community of owners, where the description of such element is rectified.

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8.- WHEN IN A SUCCESSION THERE IS A RIGHT OF TRANSMISSION, EYE THAT THE CONCURRENCE OF ALL THE INTERESTED PARTIES IN THE INHERITANCE IS REQUIRED FOR THE DELIVERY OF A LEGACY:

Attached is the Resolution of the DGSJFP of April 19, 2023 (BOE of May 8, 2023). According to it, and by way of summary, the DG reminds that, within the framework of the right of transfer, and based on article 1006 of the Civil Code, any operation tending to divide the inheritance to which the transferor is called must be granted by all the interested parties in the succession of the latter (including their legitimated beneficiaries). This is a case in which two deceased persons, in their will, name as heirs their six children (with vulgar substitution in favor of their respective descendants) and, also, order in favor of three of their children legacies of some real estate. Subsequently, one of these children dies, leaving a widow and three children (grandchildren of the first deceased). A deed of delivery of the bequest is granted by the heirs instituted (children of the deceased couple) and also by the transmitting heirs (grandchildren), but the widowed spouse of the deceased son does not intervene, something that the DG interprets that it is indeed necessary, since she is interested in the succession.

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9.- IT WILL SOON BE POSSIBLE TO GRANT DEEDS TELEMATICALLY:

Attached is a link to the article recently published in El Periódico (HERE) where the novelties derived from Law 11/2023 are succinctly explained. Based on the same, in short (at the end of November expires the vacatio legis of 6 months), it will be possible to grant certain public documents telematically, that is to say, without the physical presence of the client in the Notary's office. As more news on the practical implementation of the measure becomes available, the staff will be duly informed.

April 2023

1.- CLIENTS CAN IDENTIFY THEMSELVES BEFORE A NOTARY BY MEANS OF THE VALID DRIVING LICENSE OF THE KINGDOM OF SPAIN:

Attached is the Resolution of the DGSJFP of January 16, 2023 (BOE of February 14, 2023). According to this Resolution, and by way of summary, the DG allows an appearing party to identify himself before a Notary Public by means of a valid Spanish driving license, although this resource must be used in a subsidiary or supplementary manner. This means that, ordinarily, in any case, the identification of Spaniards must be made by means of Passport or DNI. However, in a subsidiary manner, the driving license may also be accepted, since it is an official document issued by a public authority, with photograph and signature, which has identification effects.

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2.- THE CONSENT OF THE NEW OWNERS OF A PROPERTY SUBJECT TO A HORIZONTAL PROPERTY REGIME IS NECESSARY IN ORDER TO RECORD IN THE PROPERTY REGISTRY AGREEMENTS ADOPTED PRIOR TO THE PURCHASE OF THE PROPERTY THAT HAVE NOT BEEN REGISTERED.

Attached is the Resolution of the DGSJFP of January 31, 2023 (BOE of February 20, 2023).. According to it, and by way of summary, the DG recalls that, as a general rule, if a community of owners adopts an agreement subject to registration in the Land Registry, and subsequently, before such agreement is registered, there are changes of ownership in private elements, in order to achieve the registration of such agreement, the new owners must give their consent. However, in this specific case, being an inheritance, the DG applies the principle of universal succession (article 661 Cc) and allows the registration of the agreement.

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3.- IN THE CONTEXT OF AN INHERITANCE, THE SEPARATION OF A MARRIAGE MUST BE RELIABLY PROVEN IN ORDER TO DEPRIVE THE SURVIVING SPOUSE OF HIS OR HER INHERITANCE RIGHTS TO THE RESERVED PORTION OF THE ESTATE.

I attach the Resolution of the DGSJFP of January 24, 2023 (BOE of February 14, 2023). According to it, and by way of summary, the DG reminds us that, in the context of an acceptance of inheritance, in order to formalize the same without the surviving legitimate spouse (as a result of the spouses being separated), it is necessary to prove the separation (by mutual agreement in public deed / judicial resolution of separation or divorce / by ratification of the spouse who does not participate in the partition).

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4.- PRECAUTIONS TO BE TAKEN INTO ACCOUNT IN THE ADEQUACY TRIAL WHEN A PREVENTIVE POWER OF ATTORNEY IS USED IN ANTICIPATION OF LOSS OF CAPACITY.

Attached is the Resolution of the DGSJFP of November 4, 2022 (BOE of December 2, 2022). According to it, and by way of summary, the DG determines that in order to be able to use a preventive power of attorney in anticipation of loss of capacity (of the type that only takes effect once the loss of capacity is accredited, not before) a generic sufficiency judgment is not enough as in any kind of power of attorney, but additional requirements will be demanded, namely: a current medical certificate will be required, with indication of date, author, object and an express judgment of the Notary that the principal is in the support situation described for the power of attorney to take effect (and even, in case of doubt, an expert report may be required, which will be assessed in a separate notarial act or, where appropriate, adding the appearance of the principal to assess in situ his situation of need).

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5.- JUDICIAL DECISIONS AFFECTING THE CAPACITY OF THE PERSON MUST BE REGISTERED IN THE CIVIL REGISTRY SO THAT THE ACTS DERIVED THEREFROM HAVE ACCESS TO THE PROPERTY REGISTRY.

Attached is the Resolution of the DGSJFP of January 3, 2023 (BOE of February 9, 2023). According to it, and by way of summary, the DG reminds us that the court decision affecting the capacity of a person, in addition to being final, must be registered in the Civil Registry. Without this requirement, the act carried out by the representative will not be able to access the Property Registry.

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6.- WHEN THE ECONOMIC REGIME OF THE MARRIAGE IS INDICATED IN A DEED, IT MUST BE DETAILED WHETHER IT IS LEGAL OR CONVENTIONAL.

I attach the Resolution of the DGSJFP of December 20, 2022 (BOE of February 3, 2023). According to it, and by way of summary, the DG reminds us that when indicating the economic regime of the marriage, it is necessary to determine in the deed if such economic-marital regime is legal or agreed (since in case of being agreed, specific rules of management and disposition may have been foreseen, different from the generic ones foreseen in the legal regime of the Code). In addition, if it is an agreed or conventional regime, it must be accredited to the notary by means of the exhibition of the authentic document from which the conventional economic regime results (marriage contracts) with the data of inscription in the competent Civil Registry. It can also be accredited with the certification of marriage of the Civil Registry in whose margin must be noted the granting of the marriage contracts in which the referred conventional matrimonial property regime is agreed, the day of the granting, the authorizing notary and the number of protocol.

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7.- NEED FOR THE NOTARY TO EXPRESSLY STATE IN THE NOTARIAL SUFFICIENCY JUDGMENT THE CAVEAT OF SELF-CONTRACTING AND/OR CONFLICT OF INTEREST.

Attached resolution of the DGSJFP of March 9, 2023 (B.O.E. March 27, 2023). In this interesting resolution the DG reiterates once again its doctrine regarding the notarial sufficiency and self-contracting trial, in the sense that precautions must be taken when in the presence of a legal business granted by an attorney-in-fact who in turn intervenes in his own name and right as a party with interests opposed to those of his attorney-in-fact. In the case presented to us in the resolution, the Registrar suspends the registration of a donation in which the donor acts in turn as attorney-in-fact of the donee, without expressly stating in the deed of donation that the power of attorney granted by the donee expressly avoids the figure of self-contracting and/or conflict of interests. The administrative center recalls its already very reiterated doctrine that article 98 of Law 24/2001 exclusively attributes the judgment of sufficiency of the alleged representation to the notary, without the registrar being able to require for his qualification that the document from which the representation is derived be exhibited, accompanied or transcribed. However, when the figure of self-contracting is involved, it is not enough for the notary to state in the deed the notary's judgment of sufficiency, but it will also be necessary for him to clearly state that the authentic document from which the representation (power of attorney) results contemplates the caveat of self-contracting".

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8.- APPLICABLE LAW IN MATTERS OF MATRIMONIAL PROPERTY REGIMES WITH INTERNATIONAL ELEMENTS

8.1.- LAW APPLICABLE TO THE MATRIMONIAL PROPERTY REGIME:

EU Regulation 2016/1103 (HERE) applies, applicable to all marriages entered into as of June 2019, which is universally applicable (it allows to apply even non-EU country laws).
The Regulation (art. 22) allows the spouses to choose the law applicable to their matrimonial property regime between that of the place of celebration or that of the nationality of either spouse.
Validity of the agreement: Subject to the formal requirements of each country (consequently, in Spain, a public deed will be required).
‍In theabsence of an agreement, the applicable law shall be (art. 26): That of the first habitual residence after marriage, that of the common nationality or that of the closest bond.
‍Alsoapplicable to "registered partnerships": stable couples registered in a public registry.

8.2.- LAW APPLICABLE TO THE DIVORCE:

EU Regulation 1259/2010 (HERE) on applicable divorce law is applicable, which is also universally applicable (even non-EU laws can be applied).
The Regulation (art. 5) allows the spouses to choose the law applicable to divorce between the law of the place of habitual residence, the law of the last place of habitual residence, the law of the State of which one of the spouses is a national at the time of conclusion of the agreement or the law of the forum.
Validity of the agreement: Subject to the formal requirements of each country (in Spain, public deed of covenants in anticipation of rupture).
‍Inthe absence of an agreement, the criteria of Article 8 of the Regulations shall apply.