Notoriety Act

As mentioned above, the notoriety acts allow declaring as notorious or proven certain rights or situations from which consequences in the patrimonial or personal sphere are derived for certain persons.

On this basis, it is necessary to indicate that, in practice, it is very common to resort to this instrument in the following situations:

• In the first place, in the so-called acts of declaration of intestate heirs, which are the instrument that allows to determine which persons will have the quality of heir of a deceased person, when he has passed away without a will.
  
  Thus, for example, if Santiago, an 80 years old man, divorced, who has a daughter named Carlota, dies without a will, if Carlota wants to inherit the assets of her deceased father, she will have to file a declaration of intestate heirs act, in which her condition of heir is declared and recognized, as a prerequisite to be able to later accept the inheritance of her deceased father.
  
  Inthis specific case, however, interested parties should bear in mind that, given the specific characteristics and importance of this instrument, its detailed analysis is carried out in the "SUCCESSIONS" section of this website, where they can find much more detailed information in this regard.
• Likewise, in the inheritance field, it is also usual to resort to the notoriety deed when it is necessary to prove a certain fact or circumstance that gives rise to the birth of an inheritance right in favor of a person, especially in the case of those known as "conditional calls".
  
  Thus, for example, if Santiago disposes in his will that he bequeaths all his goods in favor of Juan and Maria, and if these die, in such case the designated heir will be Mrs. Ana, if indeed, when Santiago dies, Juan and Maria have also already died, Mrs. Ana, in order to prove her right, can resort to the notarial act, she can resort to the act of notoriety, and providing the corresponding documents (as for example the death certificates of Juan and Maria), to prove or give notoriety to the fact of the death of these persons, for the purpose of proving the relevance of her inheritance rights.
• Also, in the inheritance field, notarial deeds may be a useful instrument to prove that a certain condition has been fulfilled, when the heir or legatee has been recorded with a condition(let us recall the initial example of the bequest conditioned to the obtaining of a university degree).
• On the other hand, in the real estate/registry field, notoriety deeds are also often used as a complementary instrument for the immatriculation of properties in the Land Registry, that is, the registration of properties that until now were not registered in the Land Registry.
  

In accordance with the regulations applicable to this instrument (Article 209 of the Notarial Regulations), the following requirements shall be observed in the notarial deeds of notoriety:

In the first place, it is necessary to indicate that the act will begin with a request by the interested person before the chosen Notary. In this regard, it is necessary to indicate that:

• The applicant must prove his or her legitimate interest.
• And likewise, this person must declare and assert, under his responsibility, the certainty of the fact whose notoriety is intended to be declared, under penalty of falsity in a public document.
  

Having said this, if the chosen Notary is competent and accepts the request, he/she will perform, in order to verify the notoriety claimed, as many tests as he/she deems necessary, whether or not they are proposed by the requesting party. 

• For this purpose, it shall request from the interested party all the documents and means of proof it deems appropriate.
• The notary may also issue summons and notifications in person or by edicts when the applicant so requests or when the notary deems it necessary.
• Likewise, in the event that it is presumable, in the opinion of the Notary, that the declared fact may cause damage to third parties, known or unknown, the initiation of the record will be notified by letter or edicts, so that within a period of twenty days they may allege what they deem appropriate in defense of their rights, and the Notary shall interrupt the instruction of the record, when appropriate, by application of number five of this article.
  

Once all the necessary tests have been carried out, a record will be made of all of them, with their details, in the minutes of notoriety, as well as a copy of all the requirements made with their answers, the supporting documents of summons and summons, the indication of the claims presented by any interested party, and the reservation of the rights corresponding to the same before the Courts of Justice.

In view of the result of all this evidentiary activity, the Notary, if from the examination and qualification of the evidence and the result of the proceedings, he/she considers that the notoriety claimed is justified, he/she shall so state, which shall conclude the record.

Likewise, when in addition to verifying the notoriety, the recognition of rights or the legitimization of personal or patrimonial situations is sought, this shall be requested in the initial request, and the Notary shall issue a judgment on the same, formally declaring them, if they are evident by direct application of the legal precepts relevant to the case.

Indeed, as has been indicated in previous questions, in relation to the acts of notoriety it is necessary to know that some of its modalities (such as the acts of declaration of intestate heirs or those that can be granted for the immatriculation of estates) are regulated in their specific regulations, so that the particular procedures and requirements established therein must be observed for their correct granting.

In an act of notoriety, any evidentiary activity considered appropriate and admitted by law may be carried out.

However, in practice, the most common practice is that the interested parties, in order to prove the right or situation that is intended to be declared notorious, provide:

• Or documentary evidence: such as contracts, certificates issued by administrations, public deeds, etc.
• Or the use of testimonial evidence, that is, the appearance of persons who, because of their personal or patrimonial relationship with the subject matter of the notoriety act, can provide their knowledge on the state of the matter that contributes to declare or not declare the notoriety that is sought.