Most of us take for granted the importance of the notary public in the execution of deed of sale involving real properties such as a parcel of land, house and lot, or condominium unit. Some of us consider it as a mere additional expense or burden in the land title transfer process.
However, having the deed of sale notarized by a Notary Public plays a crucial role in transferring the ownership of real property from the seller to the buyer. In one of the cases decided by the Supreme Court, it emphasized the importance of notarizing a document such as a deed of sale and declared that “Notarization is not an empty, meaningless routinary act. It is invested with substantive public interest. The notarization by a notary public converts a private document into a public document, making it admissible in evidence without further proof of its authenticity. A notarial document is, by law, entitled to full faith and credit upon its face.” (Marina Gonzales vs. Atty. Calixto Ramos, A.C. No. 6649, June 21, 2005)
What’s the effect if a private document (such as a deed of sale) is converted into a public document?
In a contract of sale, the buyer acquires ownership only upon delivery of the thing sold. It means that ownership of real property is transferred from the seller to the buyer only upon delivery of the said property.
How does the seller deliver real estate property such as condominium unit or a parcel of land to the buyer?
Unlike food or items that you usually buy through online shopping which can be delivered through courier service, it is impossible for the seller to deliver a tract or parcel of land to the buyer. Fortunately, there are many ways by which our law (the Civil Code in particular) recognized delivery relative to the sale of real estate property. The Civil Code provides that when the sale is made through a public instrument, the execution thereof shall be equivalent to the delivery of the thing which is the object of the contract if from the deed the contrary does not appear or cannot clearly be inferred.
Accordingly, ownership of real property is transferred from seller to the buyer only upon delivery of the said property, and the execution of the notarized deed of absolute sale gives rise to the presumption that there was already a delivery of the subject real estate property.
What happens if the seller and buyer failed to notarize the deed of sale? Is the deed of sale considered void or without any effect?
Failure to notarize a deed of absolute sale does not render the sale or transaction void or without any effect. If you fail to notarize a deed of absolute sale, it will only be considered as a mere private document. In one of the cases decided by the Supreme Court, it ruled that a conveyance of land made in a private document does not affect its validity. Hence, as between the seller and the buyer, the contract of sale in private instrument is still valid and binding.
What about the provision in the Civil Code (Article 1358) which requires certain agreement or contract to be in public instrument and one of which is the sale of real property or any interest therein?
The Supreme Court in the case of Estreller v. Ysmael (G.R. No. 170264, March 12, 2009), had the occasion to clarify this matter, and held that “A contract of sale has the force of law between the contracting parties and they are expected to abide, in good faith, by their respective contractual commitments. Article 1358 of the Civil Code which requires the embodiment of certain contracts in a public instrument, is only for convenience; and registration of the instrument only adversely affects third parties, and non-compliance therewith does not adversely affect the validity of the contract or the contractual rights and obligations of the parties thereunder.
