6.2 Real Estate Closing Procedures
Key Takeaways
- Louisiana notaries have ex officio authority to draft and pass acts of sale and mortgages, unlike notaries in common-law states
- Community property requires both spouses to sign the act of sale; the non-titled spouse's joinder is mandatory
- Every deed must recite marital status and the character (community vs. separate) of the property
- Witnesses must be competent adults who are not parties or agents of the parties
- A power of attorney to sell an immovable must itself be in authentic form (mandate for an authentic act)
The Louisiana Notary's Expanded Role
A Louisiana notary public holds ex officio powers far broader than a common-law notarial officer. The notary does not merely take an acknowledgment; the notary drafts and passes the act of sale, mortgage, and related instruments, administers oaths, and is often the closing officer who disburses funds. This is why the state exam tests substantive real estate law, not just signature-witnessing.
Pre-Closing Due Diligence
Before the closing date, the notary (or the closing attorney/title company) confirms the file is clean.
| Item | What the notary verifies |
|---|---|
| Title examination | Vendor's clear, merchantable title; outstanding mortgages, judgments, tax liens, servitudes |
| Mortgage certificate | Encumbrances of record against the property and the seller |
| Survey/plat | Boundaries, encroachments, building setbacks |
| Marital status of all parties | Single, married, divorced, widowed |
| Property character | Community or separate, fixing required signatures |
| Mandate (POA) | Any absent party's authority is in authentic form and specific |
Order of Proceedings at the Table
- Verify identity of every signer with current government-issued photo identification.
- Confirm marital status and the character of the property out loud and against the act's recitals.
- Read or summarize the act with the parties (explaining content is permitted; giving individualized legal advice as a non-attorney notary is not).
- Obtain signatures in the proper sequence, all in the notary's presence:
- All selling parties (vendors)
- All purchasing parties (vendees)
- The two witnesses
- The notary, who signs last and affixes the notarial designation
- Disburse closing funds per the settlement statement (if the notary handles funds).
- Record the act promptly (see Section 6.3).
Community Property: Both Spouses Must Sign
Louisiana is a community property state. Under Civil Code Art. 2347, the alienation, encumbrance, or lease of community immovables requires the concurrence of both spouses. Practically, both husband and wife sign the act of sale even when title stands in only one spouse's name, because property acquired during the marriage is presumed community.
| Property character | Who must sign the act of sale |
|---|---|
| Community immovable | Both spouses (concurrence required) |
| Separate property | The owning spouse alone |
| Owned by a juridical entity | The authorized representative, with supporting resolution/authority |
A spouse who cannot attend must grant the other a mandate (power of attorney) in authentic form authorizing the specific transaction.
Marital-Status and Acquisition Recitals
Every Louisiana deed states the party's marital status and, where relevant, the source of funds, to establish whether the property is community or separate. Get the recital language right:
| Status | Standard recital |
|---|---|
| Single | "John Smith, a single person who has never been married" |
| Married, community | "John Smith and Mary Smith, husband and wife" |
| Married, taking as separate | "John Smith, married to Mary Smith, acquiring with his separate and paraphernal funds as his separate property" |
| Widowed | "John Smith, widower of the late Mary Smith" |
| Divorced | "John Smith, a single person now divorced and not since remarried" |
The "separate funds" recital is the double declaration that rebuts the community presumption; omitting it can convert intended separate property into community property.
Mandate (Power of Attorney) at Closing
The equal dignity principle governs: a mandate to execute an act that the law requires in a particular form must be granted in that same form. Because the sale of an immovable is by authentic act, the power of attorney to sell must also be an authentic act. The notary confirms the mandate specifically authorizes this transaction, is unrevoked, and attaches or references it in the closing file.
Witness Standards at Closing
- Two witnesses are required for the authentic act of sale.
- Each witness must be a competent adult (18 or older, mentally capable, able to sign).
- A witness may not be a party, nor an agent or representative of a party, where that creates a disqualifying interest.
- The notary may not count as a witness.
Capacity, Identity, and the No-Legal-Advice Line
The notary must satisfy himself that each signer has capacity to contract: an adult, not interdicted, and acting voluntarily without apparent coercion. A signer who appears confused, intoxicated, or pressured should not be allowed to proceed. Identity is confirmed by current government-issued photo identification or, where permitted, by credible witnesses who personally know the signer.
Because Louisiana notaries are not necessarily attorneys, there is a bright line: the notary may explain the contents and effect of the act and the mechanics of signing, but may not give individualized legal advice (for example, advising a buyer whether to take title as separate or community property). When a party needs that advice, refer them to counsel.
Worked Closing Scenario
Consider a sale of a Baton Rouge home. The sellers are a married couple; title stands in the wife's name but the home was bought during the marriage (presumed community). The buyer is a married man taking title as his separate property with inherited funds. The notary will:
- Verify photo ID for the wife, the husband-seller (who must concur because the home is community), and the buyer.
- Confirm the recital that both selling spouses sign, satisfying Civil Code Art. 2347 concurrence.
- Insert the buyer's double declaration: "acquiring with his separate and paraphernal funds as his separate property," so the property is his separate estate.
- Seat two competent witnesses who are not parties or agents.
- Pass the act as an authentic act, with all parties, both witnesses, and the notary signing in the notary's presence.
- Record promptly (Section 6.3).
A common exam trap embedded here: assuming only the spouse on the title needs to sign. For a community immovable, both spouses must concur regardless of whose name is on the deed.
Title to a home acquired during the marriage stands in the husband's name alone. At the act of sale, who must sign for a valid transfer?
A buyer cannot attend her Louisiana closing and wants her brother to sign the act of sale for her. What form must her power of attorney take?
Which recital is the 'double declaration' that rebuts the community presumption when a married buyer wants the property to be separate?