Key Takeaways
- Three forms: authentic act, acknowledged private signature, and private writing
- Authentic act is the most common for residential transactions
- Authentic acts are self-proving and preferred by title companies
- Private writings are valid but harder to prove in court
- Title insurance typically requires authentic act form
Forms of Real Estate Instruments in Louisiana
Louisiana law provides for three forms of written instruments used in real estate transactions, each with different requirements and legal effects.
Three Forms of Written Instruments
| Form | Requirements | Legal Effect |
|---|---|---|
| Authentic Act | Notary + 2 witnesses + all signatures | Self-proving |
| Act Under Private Signature Duly Acknowledged | Private signing + later acknowledgment | Admissible with proof |
| Act Under Private Signature (Private Writing) | Signatures only | Requires proof of signatures |
The Authentic Act (Most Common)
In residential real estate transactions, the authentic act is the most commonly used form.
Requirements (Civil Code Art. 1833)
| Element | Requirement |
|---|---|
| Notary | Present at execution |
| Witnesses | Two competent witnesses present |
| Party Signatures | All parties sign |
| Witness Signatures | Both witnesses sign |
| Notary Signature | Notary signs |
| Presence | All signatures in notary's presence |
Why Authentic Acts Are Preferred
| Benefit | Description |
|---|---|
| Self-Proving | Prima facie proof of contents |
| Title Insurance | Required by most title companies |
| Lender Requirements | Required by most lenders |
| Court Admissibility | No additional proof needed |
| Challenge Standard | Formal court action required to overcome |
Act Under Private Signature Duly Acknowledged
An acknowledgment is when a signer later recognizes their signature before a notary.
Requirements
| Element | Requirement |
|---|---|
| Original Signing | Parties sign document |
| Later Acknowledgment | Before notary + 2 witnesses |
| Recognition | Signer confirms signature is theirs |
Limitation
An act under private signature, though acknowledged, cannot substitute for an authentic act when the law prescribes such an act.
Private Writing (Act Under Private Signature)
The simplest form - just signed by the parties.
| Aspect | Details |
|---|---|
| Requirements | Party signatures only |
| Legal Effect | Valid between parties |
| Court Use | Requires proof of signatures |
| Practical Use | Not recommended for real estate |
Louisiana Uniform Title Standards
The Louisiana Uniform Title Standards require that instruments be:
"In a form which would allow their introduction into evidence in a court proceeding as prima facie proof of their contents."
Practical Effect: Use authentic acts for all real estate transactions.
Notary Cannot Be Witness
| Rule | Explanation |
|---|---|
| LA Law | Notary cannot serve as one of the 2 witnesses |
| Violation | Makes the act invalid as authentic act |
| Minimum | Need notary PLUS 2 separate witnesses |
On the Exam
- Authentic act: Notary + 2 witnesses + all signatures
- Most common: Authentic act for real estate
- Self-proving: Only authentic acts are self-proving
- Notary as witness: Prohibited
What is the most common form of written instrument used in Louisiana residential real estate transactions?
An act under private signature that is later acknowledged before a notary and two witnesses: