Form of Written Instruments in Real Estate Transactions

Louisiana law provides for three forms of written instruments used in real estate transactions: the authentic act, the act of private signature duly acknowledged, and the act under private signature or private writing.  In residential real estate transactions, the most commonly used written instrument is the authentic act.  Louisiana Civil Code Article 1833 sets forth the requisites of and defines an authentic act as, “a writing executed before a notary public or other officer authorized to perform that function, in the presence of two witnesses, and signed by each party who executed it, by each witness, and by each notary public before whom it was executed.  The typed or hand-printed name of each person shall be placed in a legible form immediately beneath the signature of each person signing the act.”

The Cash Sale Deed used in most residential real estate transactions is an authentic act and provides space for the foregoing signature requirements.  At the time of closing, the parties to the transaction sign the deed in the presence of the closing attorney or notary public and often realtors, lenders, or office staff are asked to witness the signing of the document and thereafter sign their names as witnesses to the execution of the written instrument.  The closing attorney or notary public then lastly signs his/her name to the document and instrument is deemed to be fully executed.

To be an authentic act, the written instrument does not need to be executed at a single time or place, or even before the same notary public or in the presence of the same witnesses.  It is only required that each party who executes the written instrument do so before a notary public (or other officer authorized to perform that function), and in the presence of two witnesses, and that the party, each witness, and each notary public also sign the written instrument.  Often in real estate transactions, sellers and buyers may be located in different cities or different states.  In such cases, so long as the requirements set forth in La. Civ. Code Ann. Art. 1833 are met when each party signs the instrument in his/her particular location, the deed will comply with the requisites of an authentic act.

The authentic act also typically contains certain recitals:

1. The date on which the parties appeared before the notary to execute the document.
2. The appearances of the parties and the capacity in which they appeared if other than their individual capacity.
3. The declarations and intentions of the parties.
4. That the parties executed the act before a notary public and two witnesses.
5. A caption that sets forth the city and parish or county in which the act was executed. (Not the location of the real estate that is the subject of the act.)

There are also several “directory” requirements for authentic acts that transfer or encumber real estate.  Most of these directory requirements are found in the Cash Sale Deed used in residential real estate transactions, such as:

1. The marital status of all parties to the act.
2. Full names of the parties, not their initial letters alone. (May be at least one given name and other initials in together with the surname.)
3. Permanent mailing address of the parties.
4. Full names of the witnesses under their respective signatures.
5. Printed name of the notary as it appears in his/her commission.
6. The last four digits of the social security number or tax identification number of the parties.
7. The date the act was executed.

The failure to comply with these directory requirements does not invalidate the written instrument, but may subject the notary public to a penalty.

Next time you attend the closing of a residential real estate transaction, we hope you will more fully understand the Cash Sale Deed and its required form.