Who Has the Right to Obtain a Copy of a Deed?

4 December, 2024
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Real Estate
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Neus Vallara


Not having a copy of a deed can frustrate a legal transaction or even a judicial procedure. In this article, we analyze who can request and obtain a copy of a deed according to notarial regulations and recent jurisprudence.

There is a false belief that only the grantors of a deed, meaning those who were parties to it (regardless of whether they personally appeared, having acted through attorneys-in-fact or legal representatives), can request a copy of it. The fact is that the Notarial Regulations, specifically in Article 224, establish who has the right to obtain a copy of a deed:

Each of the grantors.

All persons in whose favor any right arises from the deed or policy included in the protocol, whether directly or through a separate act.

Those who can demonstrate, to the Notary’s satisfaction, a legitimate interest in the document.

Below, we analyze each of these cases:

Case 1: Each of the grantors of a deed

This is the least complicated case, as the grantors are those individuals or legal entities who give their consent in the deed or policy authorized by the Notary. Therefore, as a grantor, the Notary must issue the requested copy without any hindrance.

For example, in the sale of a property, the grantors are those who are the sellers and buyers, as well as any other party who appeared in connection with the transaction, such as a bank, a homeowners’ association, or a bankruptcy administrator.

Another example: in a deed of mortgage creation, the grantors are those who are the creditor and debtor parties, as well as any guarantors or other individuals who appear because their consent is required for the legal transaction authorized by the Notary.

Case 2: Persons in whose favor a right arises from the deed or policy

This refers to all those who were not grantors of the deed but who, through the legal transaction formalized, acquire a right, whether directly or indirectly.

For example, in a property sale deed, part of the payment made by the buyer might be retained to settle a debt owed by the seller to a third party, such as a homeowners’ association or an urban development entity. Consequently, although the homeowners’ association and the urban development entity were not grantors of the deed, they have the right to obtain a copy as they became creditors of the buyer due to the payment arrangement made by the parties.

Case 3: Those who can demonstrate a legitimate interest to the Notary

This case is closely related to the previous one, as legitimate interest is implied when a right arises in favor of a third party from a deed. However, situations where there is legitimate interest without a clearly established right in favor of a third party require more interpretative effort by the Notary.

This is the most complex scenario and merits closer examination.

On November 27, 2023, the First Chamber of the Civil Division of the Supreme Court issued Ruling 1642/2023, which thoroughly analyzed this matter, specifically the legitimacy of third parties to request a copy of a deed.

The case involved a bank that had granted a mortgage loan to an individual. Subsequently, this individual (the debtor) transferred the property to a company that purchased it along with the mortgage encumbrance.

Since the bank intended to file a foreclosure lawsuit, it requested a copy of the transfer deed to submit it to the court along with the complaint and thus also sue the third-party possessor. The Notary who had authorized the transfer deed considered that the bank had a legitimate interest and issued the requested copy. However, the purchasing company and the individual who appeared in the deed as its representative argued that the Notary had violated their rights to honor, personal privacy, and personal data protection by providing the copy to a third party (in this case, the bank) unrelated to the protocol. They filed a corresponding lawsuit against the Notary.

The Court held that, as the mortgage creditor and holder of the real property mortgage right on the transferred property, the bank was not unrelated to the legal effects of the sale, as these could directly affect the legal relationship stemming from the mortgage loan in which it was a party. Thus, the bank had a clear legitimate interest in knowing the terms of the sale to determine the means of payment for all or part of the price and to verify whether the purchasing company had assumed the loan debt or if there had been a price retention or discount, which would invoke the consequences of Article 118 of the Mortgage Law (the debtor is subrogated to the creditor’s position until the buyer reimburses the total retained or discounted amount).

Consequently, the Court found that the Notary had not violated any rights of the plaintiffs and that her judgment was correct, as, despite the bank being a third party to the deed, its content was essential for the bank to exercise its rights in court.

The Ruling also highlights an important consideration: the type of act documented in the deed being requested is crucial in the Notary’s assessment. For example, a will, which may contain highly personal declarations, differs significantly from a sale deed, which only involves property matters.

Conclusion

The conclusion is that each case must be evaluated individually within the framework of the law and its jurisprudential interpretation to determine who has the right to obtain a copy of a deed.

At MES Advocats, we offer comprehensive advice in the field of real estate law. If you need more information or would like a quote, you can contact us via this link.

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Assessoria legalDerecho hipotecarioDret hipotecariReal Estate LawReal Estate LawEscrituraEscrripturesNormativa notarial

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