Declaratory Notarial Deed and Acquisition of Ownership by Prescription – Legal Nature, Procedure and Risks

Ownership of real estate is most commonly acquired through a transaction – sale, donation, exchange – where the notarial deed identifies two parties: a transferor and an acquirer. However, practical life demonstrates that ownership may also arise through other legal grounds without a transfer between two persons. For such situations, the legislator has provided for the issuance of a declaratory notarial deed – a document in which only the owner is identified, not a party to a transaction.

A declaratory notarial deed is a special non-contentious act through which the notary certifies the existence of a specific real right – most often ownership, but also other limited real rights such as a right to build or a right of use. It does not create the right but confirms its existence on the basis of evidence presented in a legally regulated procedure.

Situations in Which a Declaratory Notarial Deed Is Issued

A declaratory notarial deed is issued where ownership has been acquired not through a transaction but through other legal facts – inheritance, restitution, partition, court judgment, or acquisitive prescription. In such cases, a person may indeed be the owner but may not possess a title deed issued in his or her own name.

The law provides for two types of declaratory notarial deeds:

• one issued on the basis of written documents;

• one issued following a circumstantial (fact-finding) procedure.

Declaratory Notarial Deed Based on Documents

This type is issued when written evidence of ownership exists. A typical example is an heir who possesses a notarial deed issued in the name of the deceased but not in his or her own name. Upon presentation of a certificate of heirs and a death certificate, the notary may issue a deed certifying the heir’s ownership.

The procedure may also apply in cases involving decisions of land commissions, partition agreements, court judgments declaring preliminary contracts final, and other documentary grounds.

The proceedings begin with a written application to the notary. All relevant documents, a tax valuation certificate, and a cadastral sketch or scheme must be submitted. After verification, the notary issues a ruling either recognizing or refusing to recognize the applicant’s ownership. A refusal may be challenged before a court.

Declaratory Notarial Deed Following a Circumstantial Procedure

More commonly in practice, ownership is established through a circumstantial procedure. This applies where sufficient written evidence is lacking, but the person has possessed the property for a prolonged period.

In such cases, the institution of acquisitive prescription applies. Through this legal mechanism, a possessor may become the owner if he or she has exercised possession continuously, openly, and without disturbance for a statutory period.

The required period depends on the nature of possession:

• 5 years in the case of good-faith possession – where the person acquired the property on a legal ground capable in principle of transferring ownership, but due to a defect in the transferor’s title, ownership was not effectively acquired;

• 10 years in the case of bad-faith possession – where the person knows he or she is not the owner or lacks valid legal grounds.

Prescription is interrupted if the true owner undertakes actions to protect his or her right, such as filing a claim or regaining factual control over the property.

Procedure for Circumstantial Verification

The procedure begins with the completion of a standard declaration form describing the property. The document must be certified by the relevant administrative authorities confirming that the property is not state- or municipally-owned. A tax valuation certificate and cadastral sketch or scheme must also be obtained.

A crucial element is the testimony of three witnesses who confirm the continuous possession. The notary evaluates the collected evidence and issues a ruling recognizing or refusing to recognize ownership. Refusals may be challenged in court.

The procedure requires careful preparation, as notaries often act cautiously due to the potential risk of affecting third-party rights.

Legal Effect and Annulment

The issued declaratory notarial deed is registered in the Property Register and legitimizes the person named therein as owner until proven otherwise. It has evidentiary force against all parties.

Judicial annulment is possible under Article 537(2) of the Civil Procedure Code if it is proven that the certified right does not exist. Annulment applies only to declaratory notarial deeds, not to notarial deeds evidencing bilateral transactions.

Balance Between Legal Stability and Protection

Acquisitive prescription is often subject to public debate. Although abuses may occur, the institution serves an important stabilizing function by preventing prolonged legal uncertainty and encouraging responsible management of property. Ownership entails not only rights but also obligations. Long-term passivity may result in the loss of ownership.

Conclusion

A declaratory notarial deed is an instrument for certifying an already acquired right, not for creating one. Its issuance requires proof of statutory conditions and careful legal assessment.

Due to the complexity of the procedure and the possibility of disputes, seeking professional legal assistance is advisable to minimize future risks and challenges.