By: Luis Pedro Rayo
Is Amparo Protected against a registration made based on a false public instrument?
Cases of violation of property rights and dispossession of real estate are frequently reported through the use of false public instruments that are fraudulently registered in the Property Registry. In fact, according to data collected by the Observatory of Property Rights, the most reported crimes before the Fiscal Agency of the General Property Registry during the years 2016 to 2020 were: material falsehood with 807 complaints; ideological falsehood with 779 complaints; special cases of swindling with 131 complaints; use of forged documents with 63 complaints; and, theft with 57 complaints[i].
This is largely due to the existence of criminal structures – sometimes even associated with Notaries – that are dedicated to falsifying public deeds and/or their contents in order to illegitimately seize real estate. In these situations, a civil or criminal action in the ordinary jurisdiction to determine the falsity or not of the public instrument could take several years, thus causing serious and irreparable damage to those who have been victims of such violations.
Taking into account the foregoing, the Constitutional Court in repeated jurisprudential precedents[ii], has held that, exceptionally, it is feasible to resort directly to constitutional justice through amparo, without the need to previously exhaust ordinary procedures, to denounce the violation of the right to property caused by registration entries with public instruments that allege anomalies and illegalities, whose violation is attributable to the Registrar of the Property Registry for having made a registration entry based on a false public instrument.
However, it is not always feasible to resort directly to the constitutional sphere in order to reestablish the legal situation in which the aggrieved party was before the violation of his right to property took place. In this regard, the Constitutional Court has expressed that in these situations three decision alternatives can be taken:
- To grant the protection of the amparo in full or total form. The granting of the protection under this modality is appropriate when the means of conviction contributed to the process allow the Court to conclude in an evident and irrefutable manner that the public instrument that motivated the registry inscriptions lacks validity.
- Granting partial or temporary protection. In this case, the evidence is not sufficient to prove without a doubt the falsity of the public instrument, but it is sufficient to generate a reasonable doubt as to the legality of the actions under analysis. Therefore, the amparo is granted, but in a reduced form, leaving the challenge registration suspended for a reasonable period of time in order to guarantee that the property in question will not be altered and so that the aggrieved party may gather the necessary evidence and go to the ordinary jurisdiction to make use of the corresponding legal mechanisms for the protection of his rights.
- Denial of constitutional protection. When there are no elements of conviction or they are insufficient to, at least, raise a reasonable doubt about the validity or not of the public instrument in question, the protection is inadmissible. Even when the Court of Amparo receives the background of the case, it is obliged to qualify the procedural requirements for its admissibility, so that if it determines that in the specific case there is no significant evidentiary contribution that allows for a reasonable doubt, it may suspend the amparo proceeding without the need to exhaust all the phases of the process.
For example, in the first of the cases we mentioned, it could be the case that the aggrieved party proves that at the time of the execution of the transfer of ownership contract one of the parties or the Notary Public himself was dead, or that one of them was unable to be present at the act because he was out of the country. Proving these circumstances by means of death certificates or a report of the migratory movement of the person, would be sufficient for the Court to grant the amparo in full.
On the contrary, when the amparo action is based only on a private graphic-technical report or when there are alleged defects in the consent, such as error, fraud, simulation or violence, without complementing this with other evidentiary means that allow inferring any anomaly or illegality, the Constitutional Court has established legal doctrine in the sense that the protection of the amparo is unfeasible, since it is up to the interested party to go to the ordinary jurisdiction to sue and prove such circumstances[iii].
In conclusion, the amparo has become an effective mechanism to restore the enjoyment of the rights to property and legal certainty, provided that it is evident that there are anomalies that, at least, give rise to reasonable doubt as to the legality of the public instrument on the basis of which a registration was made.
[ii] Among others, see judgment dated June 18, 2019 in case 3288-2018.
[iii] Among others see judgment dated February 13, 2019 within file 4354-2018.