Título III. Instrumentos publicos

Public instruments shall contain:

1ºThe order number, place, day, month and year of execution;

2ºThe given names, surnames, age, marital status, nationality, profession, occupation or trade and domicile of the grantors;

3ºAttestation of knowledge of the persons participating in the instrument, and that the appearing parties affirm that they are in the free exercise of their civil rights;

4ºIdentification of the grantors when they are not known to the notary, by means of the neighborhood identity card or passport, or by two witnesses known to the Notary, or by both means when he deems it advisable;

5ºStatement of having had before him the authentic documents evidencing the legal representation of the appearing parties acting on behalf of another, describing them and indicating place, date and public official or Notary authorizing them. He shall certify that such representation is sufficient pursuant to law and in his judgment for the act or contract;

6ºParticipation of an interpreter appointed by the party unfamiliar with the Spanish language, who where possible shall be a sworn translator. If the interpreter does not know how or is unable to sign, a witness shall do so for him;

7ºFaithful, concise and clear account of the act or contract;

8ºAttestation of having had before him the titles and supporting evidence that correspond, according to the nature of the act or contract;

9ºTranscription of the proceedings ordered by law or which in the Notary’s judgment are pertinent, where the act or contract has been preceded by judicial authorization or order or derives from judicial or administrative proceedings;

10.Attestation of having read the instrument to the interested parties and their ratification and acceptance;

11.Warning to the grantors of the legal effects of the act or contract and that they must file the certified copy with the respective registries; and

12.Signatures of the grantors and of the other persons participating and that of the Notary, preceded by the words: “Before me”. If the grantor does not know how or is unable to sign, he shall affix the fingerprint of his right thumb and failing that, another one to be specified by the Notary, a witness signing for him, and if there are several grantors who do not know how or are unable to sign, a witness shall do so for each party or group representing the same right. Where the Notary himself is the grantor, he shall place before signing the statement: “For me and before me”.

In every act or contract, the grantor who assumes an obligation shall expressly state whether or not there are encumbrances or limitations on the property motivating the act or contract, when they may affect the rights of the other grantor; and the notary shall warn them of the liabilities they will incur if they fail to do so.

The essential formalities of public instruments are:

1st The place and date of execution;

2nd The given name and surname or surnames of the grantors;

3rd Record of having had in view the documents evidencing sufficient legal representation of whoever appears on behalf of another;

4th The intervention of an interpreter, when the grantor does not know Spanish;

5th The account of the act or contract with its modalities; and

6th The signatures of those participating in the act or contract, or the fingerprint impression where applicable.

The omission of the essential formalities in public instruments gives the interested party an action to sue for its nullity, provided it is exercised within the term of four years, counted from the date of its execution.

The omission of non-essential formalities causes the notary to incur a fine of five to fifty quetzales, according to the case.

It is not necessary for the Notary to state that he attests, in each deed clause, to the stipulation contained therein, nor to the legal conditions or circumstances of the persons or things to which it refers; it is sufficient for the Notary to record once in each public instrument that he attests to everything contained therein.

For civil liability for damage and losses against the notary for nullity of the instrument to proceed, it is necessary that the notary has been summoned and heard in the respective trial, with regard to the cause of nullity.

The Notary shall place in the margin of the master deed a notation of having authorized another deed that supplements, clarifies, modifies or rescinds it; and shall also annotate the titles and documents that the Notary has before him and whose content undergoes modification by virtue of the instruments he has authorized.

. The notary and the judges of 1st Instance, when empowered to act in a notarial capacity, must comply with the following obligations:

a)To send to the Director of the General Archive of Protocols, within the twenty-five working days following the execution of each public deed, a special testimonial on sealed paper of the lowest value, with the notarial stamps affixed in accordance with the law. In the departments of the Republic, excluding that of Guatemala, the notary may deliver said testimonials to the judge of 1st Instance, who shall issue the respective receipt and shall forward them immediately to the General Archive of Protocols. When dealing with wills or donations upon death, as well as their amendments or revocations, the testimonial shall be delivered in a sealed cover signed and sealed by the notary, stating therein the serial number, place, date, time and purpose of the instrument, name of the grantor, as well as the number and register of the protocol paper sheets on which it was drawn up;

b)To give notice within the term indicated in the preceding paragraph, and before the same department of the Supreme Court of Justice or before the indicated judicial public officials, as applicable, of the cancelled public instruments, of which no copy or testimonial may be issued. The notice shall be sent on sealed paper of the lowest value and shall contain the number and date of the cancelled instrument;

c)To send a notice to the General Archive of Protocols, or to the judges of First Instance, as applicable, within the 25 working days following the expiry of each quarter of the calendar year, on sealed paper of the lowest value, indicating the number and date of the last public instrument authorized or cancelled, or, as applicable, that he authorized none during the corresponding quarter. Upon expiration of the term referred to in subparagraph c) of this article, the Director of the General Archive of Protocols shall publish within the ten working days following said expiry, in the Official Gazette and in another newspaper of the largest circulation in the country, the list of the notaries who have not sent all of the special testimonials, and the notices referred to in subparagraphs b) and c) of this article. Subsequently he shall publish quarterly the lists of the notaries who remain in or incur such situation.

Without prejudice to the sanction established in Article 100 of this Code, neither protocol paper nor fiscal stamps shall be sold to the notary who has failed to send, during a quarter of the calendar year, all of his special testimonials with the respective notarial stamps, to the General Archive of Protocols, or to the judges of First Instance, as applicable. For such purpose, the Director of said department shall send to the General Directorate of Internal Revenue, with a copy to its departmental delegations, a list of the notaries who have incurred such omission, once the term provided for in subparagraph c) of this article has expired. The notary who has been included in said list shall automatically be subject to the impediment to the exercise of his profession, established in subparagraph 4th of Article 4th of the Notarial Code, as amended by the present law; however, once the impediment has been cured in legal form, he may request the Director of the General Archive of Protocols to exclude him from the list, who, after verification of the case, shall notify the respective departments.

The employees of the General Directorate of Internal Revenue or of its departmental delegations, who sell protocol paper and fiscal stamps to the notaries included in the list referred to in the preceding paragraph, shall incur the sanctions provided for the case of the sale of fiscal stamps to unlicensed persons.

The Bar Association of Guatemala may designate at its own expense such personnel as deemed necessary, to verify in the General Archive of Protocols the correct and exact payment of the notarial stamp on the special testimonials and to collaborate, under the orders of the Director of said department, in any work tending to compliance with this law and any other legal or regulatory rule, relating to the Benefits Plan of the Bar Association.

The Director of the General Archive of Protocols shall microphotograph the special testimonials referred to in this article with the exception of those delivered in sealed cover.

Said microphotographs shall have the same legal effects as the reproduced special testimonials.

The Supreme Court of Justice shall regulate the form and requirements that the microphotographs must meet and the other aspects of application of the microphotographic system by the General Archive of Protocols.

. — In order to enable better compliance with the obligations for assessment, control and payment of the tax on the sale and exchange of immovable property (Alcabala), notaries, when participating in the instruments for acts and contracts directly related to said tax, shall, within the period of 15 days from the date of authorization of the instrument, give notice to the General Directorate of Cadastre and Appraisal of Immovable Property and the respective municipalities and, in addition, comply with the following rules:

a)In contracts of alienation:

Complete and present the corresponding form, which shall serve as notice of the alienation. Said form shall indicate:

1)Name of the taxpayers;

2)Numbers of the certificates of neighborhood of the same;

3)Tax domicile of the grantors;

4)Tax identification numbers, if they have them;

5)Immovable property subject of the contract;

6)Registration number in the Property Register, if it has one;

7)Tax roll number;

8)Location and area of the immovable property, stated in units of the decimal metric system; and,

9)Value of the alienation.

b)In acts of donation of immovable property:

1)Names of the donor and donee;

2)Numbers of the certificates of neighborhood;

3)Tax domicile of the grantors;

4)Tax identification numbers (NIT);

5)Relationship of kinship that the grantors may have between themselves;

6)Value of the donation.

c)In acts or contracts of consolidation of immovable properties and of any others that are not subject to payment of the tax:

1)Date of the act or contract;

2)Names of the grantors;

3)Numbers of their certificates of neighborhood;

4)Tax domicile;

5)Tax identification numbers (NIT);

6)Description of the consolidated immovable properties, with indication of location;

7)Area, in units of the decimal metric system;

8)Tax roll number;

9)Data identifying the consolidated estate;

10)Registration number of the consolidated estate in the Property Register.

d)In cases of dismemberment of immovable properties:

In cases where estates are formed by division of other immovable properties, they shall inform the General Directorate of Cadastre and Appraisal of Immovable Property (DICABI) of the data indicated in the preceding subparagraphs that may be pertinent and that correspond to the new estates, within the period of 15 days in which the dismemberment is registered in the Property Register, providing the plans for distribution of the land and, as applicable, for the distribution of the immovable property, land and building.

Notaries who fail to remit the forms and notices mentioned in this article shall be punished with an administrative pecuniary fine, in addition to those established in this Code.

The Fiscal Registration Office, upon receiving notice from the notary of the alienation of an immovable property that is not declared, shall proceed to open the corresponding registration, fulfilling the legal requirements, within a time limit that shall not exceed fifteen days. In this case the time limit for paying the alcabala begins to run from the date on which the registration is opened.

The files and books of the registry are public and no fee shall be charged for their consultation.