The measure distinguishes the applicable formalities according to the legal regime of the property and allows the notarization of signatures as a requirement for these cases
Santo Domingo.– The First Chamber of the Supreme Court of Justice (SCJ) established that mortgages on registered real estate can be constituted through private acts, without it being mandatory to resort to an authentic document, provided that the signatures of the parties are duly legalized by a notary, in accordance with Law No. 108-05 of Real Estate Registry and its General Regulation of Title Registration, established by Resolution No. 788-2022.
The high court specified that there is a difference between the formalities applicable to assets subject to the real estate registration system and those corresponding to properties that do not have a registration.
In that regard, he pointed out that, when dealing with unregistered properties, the establishment of a mortgage must be carried out through an authentic act, in accordance with the provisions established in the Civil Code.
Notarial legalization
However, for registered properties, the First Chamber indicated that this formality is not essential to establish the mortgage guarantee.
The decision establishes that an act carried out under private signature can serve as an instrument to constitute a mortgage on a registered property, provided that the signatures of those involved have been legalized by a notary.
Thus, the court explained, the validity of the mortgage act is linked to compliance with the formalities corresponding to the legal regime of the property and not necessarily to the instrumentation through an authentic act.
Criteria applicable to real estate registration
The Supreme Court emphasized that this distinction makes it possible to determine the formal requirements that must be observed when establishing a mortgage guarantee, depending on whether the property is registered or not.
The criterion was established by the First Chamber of the Supreme Court of Justice through a ruling on June 30, 2021, which addressed the formalities applicable to this type of real estate transactions.
The decision has an impact on the procedures related to the constitution and registration of guarantees on real estate rights registered with the Registry of Titles, within the real estate registration system of the Dominican Republic.
What does Law No. 108-05 on Real Estate Registration consist of?
According to the RI, Law No. 108-05 on Real Estate Registration establishes the rules governing the real estate registration system in the Dominican Republic.
The legislation regulates the recognition and registration of property rights, land titling, cadastral surveys, property transfers, and the registration of encumbrances and liens, such as mortgages. It also establishes the operational framework for the Land Registry and the bodies responsible for registering and protecting real estate rights.
What does Resolution No. 788-2022 consist of?
Likewise, Resolution No. 788-2022 establishes the General Regulations for Title Registration and regulates the procedures and requirements for registering real rights, charges and encumbrances on real estate, complementing the provisions of Law No. 108-05 on Real Estate Registration.
Continuing the work of Resolution No. 788-2022, dated October 27, 2022, its function is to complement and develop Law No. 108-05, establishing how the National Directorate of Title Registration and the Title Registries operate, as well as the procedures and requirements for registering and publicizing real rights, encumbrances, and liens on real estate. This is expressly stated in Articles 1 and 2 of the regulations.
What do Law No. 108-05 and Resolution No. 788-2022 have in common?
Finally, both regulations aim to guarantee order, registration, publicity, and legal security of rights over real estate in the Dominican Republic.
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