6.1 Forms of Real Estate Instruments

Three Forms of Written Instruments

Louisiana is a civil law jurisdiction, so its document forms come from the Civil Code, not the common-law deed traditions of other states. Three forms appear on the exam, and you must distinguish them by their execution requirements and their evidentiary weight (how easily a court accepts them as proof).

A classic exam distractor is a "verbal agreement with witnesses." A transfer of immovable (real) property must be in writing to transfer ownership, so any oral-agreement option is wrong.

The Authentic Act (Civil Code Art. 1833)

The authentic act is the gold-standard instrument and the form used for nearly all Louisiana real estate sales, mortgages, donations, and powers of attorney for immovables. Article 1833 states an authentic act is written by a notary public in the presence of two witnesses and signed by each party who is able to sign, by each witness, and by the notary.

Required elements (memorize the full set)

• The notary public is present and writes/passes the act.
• Two competent witnesses are present.
• Each party able to sign does so.
• Both witnesses sign.
• The notary signs.
• Every signature is affixed in the notary's presence.

If a party is physically unable to sign, the act recites that fact and the party affixes a mark in the presence of the notary and witnesses; the validity is preserved by the recital.

Why title companies and lenders demand it

• Self-proving (full proof): An authentic act is full proof of the agreement it contains against the parties, their heirs, and successors. No additional foundation testimony is needed to admit it.
• Hard to attack: To overcome an authentic act, a challenger must bring a direct action in forgery (an action of improbation/forgery), a much higher bar than disputing an ordinary signed paper.
• Marketable title: Title underwriters insure on the strength of recorded authentic acts; private writings create title objections.

Act Under Private Signature Duly Acknowledged

An acknowledgment is the later recognition of a signature already placed on a private document. Under Civil Code Art. 1836 and R.S. 35:511, the signing party (or a witness who saw the signing, or proof of the handwriting) declares before a notary that the signature is genuine. Once duly acknowledged, the act gains a certain date and proves the signatures, making it admissible without further proof of authenticity.

The critical limitation, tested repeatedly: an act under private signature, though acknowledged, cannot substitute for an authentic act when the law prescribes such an act. Acknowledgment improves an ordinary document's evidentiary standing; it does not manufacture authentic form where the law demands it (for example, a donation of immovable property, which the Code requires to be by authentic act).

Private Writing

A private writing (act under private signature, unacknowledged) carries only the parties' signatures. It is valid between them but, if contested, the party relying on it must prove the signatures in court, by admission, by witnesses who saw the signing, or by handwriting comparison. The burden falls on the party offering the document, the opposite of the authentic act where the burden falls on the challenger. A private writing also gains no certain date against third parties until an event fixes it (recording, the death of a signer, or acknowledgment).

For these reasons it is poor practice for real estate and a common wrong answer to "most reliable form" questions.

Comparing Evidentiary Weight

Think of the three forms as a ladder of proof:

• Authentic act sits at the top: it proves itself, and the challenger must sue in forgery to dislodge it.
• Acknowledged private signature sits in the middle: the acknowledgment supplies a certain date and proves the signatures, so it is admissible without foundation, but it can be contradicted by ordinary evidence.
• Private writing sits at the bottom: the proponent must affirmatively prove the signatures before the document does any work in court.

Worked example: a buyer signs a purchase agreement at the kitchen table with no notary (private writing). The seller later denies signing. The buyer must now prove the seller's signature. Had the same document been passed as an authentic act, the signature would be presumed genuine and the seller would have to prove forgery, an enormous practical difference at trial. This is precisely why Louisiana practitioners default to authentic form for anything touching immovable property or significant obligations.

Trap: The Notary Is Not a Witness

The two witnesses must be persons other than the notary. Counting the notary as one of the two witnesses produces only one true witness and defeats authentic form, downgrading the instrument to a private writing or an act eligible only for later acknowledgment. The witnesses must also be competent, meaning adults able to understand and sign, and they should not be the parties themselves where that creates a disqualifying interest. A further trap: the parties, the witnesses, and the notary must all sign during the same continuous act in each other's presence, not days apart by mail.

On the exam, the formula never changes: notary + two separate competent witnesses, every signature affixed in the notary's presence. If any element is missing, the instrument is not authentic, even though it may still be valid in a lesser form between the parties.