The original contract in real estate sales: Legal certainty ignored

By Reyna Echenique

Special for El Inmobiliario

In the Dominican real estate market, there is a practice that deserves attention: some developers fail to promptly deliver the original copy of the contract to the buyer. This situation, while it may seem like a simple administrative detail, has significant implications for the legal security of both parties. In this article, we analyze why this document is essential to protecting the buyer's interests and how its proper handling strengthens transparency and trust throughout the real estate transaction process.

The legal value of the original contract

The real estate purchase agreement is the primary document that defines the rights and obligations of the parties in one of the most significant financial transactions a person makes in their lifetime. The Dominican Civil Code clearly establishes that in bilateral contracts, both parties have the right to retain an original copy of the document that formalizes their legal relationship.

The original version of this document, duly legalized by a notary, acquires a legal value substantially superior to any copy for two fundamental reasons:

1. First certain date: Notarial legalization gives the document, in a way, the first certain date, a fundamental element in case of disputes about deadlines or subsequent modifications.
2. Authentication of signatures: The notary certifies the authenticity of the signatures, eliminating any possible question about the identity of the signatories or their consent.

The current problems

Despite the clarity of these legal provisions, the practice persists in the Dominican real estate market of some developers improperly withholding the original copy of the contract that belongs to the buyer, delivering instead:

• Simple photocopies of the document
• Uncertified digital versions
• Originals without notarization
• Or, in the most serious cases, no copies at all

This practice does not respond to legitimate operational needs of the developer (who retains his own original copy), but rather constitutes an administrative irregularity that compromises the legal security of the entire transaction and places the buyer in a position of unnecessary legal vulnerability.

Practical consequences for the buyer

The lack of possession of the original, duly legalized contract creates multiple vulnerabilities for the buyer:

1. Evidentiary difficulties: In the event of any dispute, the buyer faces obstacles in proving the exact terms agreed upon, especially if there are discrepancies with the version held by the developer.
2. Obstacles to the transfer: The final transfer process requires the presentation of the original contract, which can generate dependence of the buyer towards the developer even months after the delivery is completed, ignoring that the developer has a period of 5 months to pay the transfer tax.
3. Vulnerability to modifications: Without an original copy, it is more difficult to detect alterations or unilateral modifications to the terms of the contract.
4. Succession complications: In the event of the buyer's death, the absence of the original contract significantly complicates the procedures for their heirs.

The ideal and correct notarial process

The proper procedure for formalizing real estate contracts should follow these basic steps:

1. Preparation of multiple copies: Generate at least two identical copies of the contract (one for each party).
2. Simultaneous signature: Both parties must sign all copies simultaneously, in the presence of the notary.
3. Notarial legalization: The notary must legalize the signatures on all copies, certifying their authenticity and providing a certain date.
4. Immediate delivery: Each party must receive their original legalized copy immediately after the process is completed.

This process ensures documentary fairness between the parties and establishes the basis for a transparent and legally sound contractual relationship.

Protecting your rights: A practical guide

For buyers:

1. Demand immediate delivery: Do not hesitate to request your copy, which you can do through your real estate agent, representative, or the buyer himself.
2. Reject unsuitable substitutes: Do not accept photocopies or uncertified digital versions as substitutes for the original.
3. Include a specific clause: Establish in the contract itself a clause that explicitly states the obligation to immediately deliver the original legalized copy to the buyer.
4. Verify full legalization: Check that the copy received includes the full notarization, not just partial seals or signatures.
5. Document any irregularity: If due to exceptional circumstances you do not receive your original copy immediately, formally document this situation and establish a maximum delivery timeframe.
6. Shipping costs reserved: If you are a buyer who resides outside of the Dominican Republic, please include the shipping costs of your original copy to your country in your purchase.

For developers:

1. Establish clear notarial protocols: Implement standardized procedures that guarantee the immediate delivery of the original copy to each buyer.
2. Train sales staff: Ensure the team understands the legal importance of these documents and does not offer terms that contravene these basic obligations.
3. Complementary digitization: Implement digital backup systems that complement (never replace) the original physical documentation.
4. Audit compliance: Periodically verify that all buyers have received their original copies, correcting any omissions detected.
5. Professionalize document management: Establish appropriate custody systems for the copies belonging to the developer, eliminating the false justification of "operational need" to retain those of the buyer.
6. Shipping cost: If the buyer resides outside the Dominican Republic, add the cost of shipping the original to the legal expenses.

Additional considerations on document preservation

Proper preservation of the original contract goes beyond mere legal compliance and constitutes an essential self-protection practice for the buyer:

1. Secure storage: Keep the document in a place protected from moisture, direct sunlight and other factors that may deteriorate it.
2. Backup copies: Make additional certified copies that can be used for routine tasks, preserving the original for critical situations.
3. Personal digitization: Create high-quality digital backups, although these never replace the legal value of the original.
4. Information for family members: Make sure that trusted people know the location of these documents in case of emergency.
5. Document update: Incorporate in an orderly manner into the same file any addendum, modification or subsequent supplementary documentation.

Possession of the original copy of the real estate purchase agreement, duly legalized by a notary, is not a privilege but a fundamental right of the buyer that is essential for their legal security.

Buyers must adopt a firm but constructive stance, demanding strict compliance with this basic obligation from the moment of signing. For their part, professional developers must recognize that the immediate delivery of these documents not only fulfills unavoidable legal obligations but also builds stronger and more reliable business relationships. We commend the developers who are already implementing these best practices.

The maturity of the Dominican real estate market requires overcoming obsolete administrative practices that lack legal and operational justification, moving towards professional standards where adequate documentation constitutes the basis of every responsible transaction.

This article is part of the series 'Good Real Estate Practices in the Dominican Republic'.

Theauthor is a real estate lawyer, real estate entrepreneur CEO Echenique Group, Secretary of the Board of Directors AEI 2024-2026, a speaker certified by John Maxwell and trained by Tania Báez realtor specializing in the Dominican and international real estate sector.