The Minuta: Why Your Attorney's Review is Non-Negotiable in Cuenca Real Estate

Navigating real estate transactions in Ecuador presents a legal landscape profoundly different from what most North Americans or Europeans are accustomed to. As a Real Estate Broker and Lawyer practicing in Cuenca, my singular focus is on shielding your investment from preventable risks. We are not just buying a property; we are securing a legally sound asset. Today, we'll dissect the single most critical pre-purchase document: the Minuta. Understanding its function and ensuring its meticulous review by your attorney is not a suggestion—it is the bedrock of a secure property acquisition.

What Exactly is the "Minuta"?

In Ecuadorian law, the Minuta is the binding draft of the final deed of sale (Escritura Pública de Compraventa). It is a formal, legally-binding document drafted and signed by an attorney, which outlines every agreed-upon term between buyer and seller. It is then submitted to a Notary (Notario) who elevates it to a public instrument, creating the final Escritura.

Think of it as the architectural blueprint for your final deed. A flawed blueprint guarantees a flawed structure. A poorly drafted Minuta—one with errors, omissions, or ambiguous clauses—will directly translate into a defective Escritura, potentially jeopardizing your ownership for years to come.

Why the Minuta Demands Expert Scrutiny

The charm of a colonial home in El Centro can be intoxicating, but rushing to sign a preliminary agreement is the most common and costly mistake I see expats make. The Minuta crystallizes the entire agreement. If it contains errors regarding property boundaries (linderos), payment terms, or responsibility for existing debts, these issues are legally cemented once the Escritura is signed.

Hyper-Specific Detail #1: Who Drafts the Minuta Matters. In a buyer-protective transaction, your attorney—not the seller's—should draft the Minuta. This ensures that all protective clauses, contingencies, and warranties are structured to benefit you, the buyer. Relying on the seller's attorney to draft this document is akin to letting the fox guard the henhouse.

Key Legal and Financial Elements Your Attorney MUST Verify and Include:

Absolute Clarity on Property Identification: The Minuta must contain the precise legal description, exact surface area, and cadastral code (clave catastral) from the municipal registry. It must perfectly match the records at the Property Registry (Registro de la Propiedad). Discrepancies between the physical property and the registered title are common and must be rectified before closing.
Seller's Legal Capacity to Sell: Your attorney will verify that all listed owners have the legal right and capacity to sell. This includes confirming marital status, as a spouse's consent is typically required, and ensuring there are no court orders or powers of attorney that might complicate the sale.
The "Saneamiento" Clause (Warranty of Title): This is a non-negotiable legal declaration within the Minuta where the seller guarantees the property is free from all hidden defects, past claims, and encumbrances. It is your primary legal recourse if a title issue arises post-purchase.
Verification of Gravámenes (Liens and Encumbrances): Before drafting the Minuta, your attorney must obtain a Certificado de Gravámenes y Limitaciones de Dominio from the Registro de la Propiedad. This is the official title search report. The Minuta must explicitly state the property is being transferred free of any mortgage, lien, lawsuit (litigio), or seizure (embargo), and this certificate is the proof. Relying on the seller's word is malpractice.
Tax and Fee Responsibilities: The Minuta must clearly state who pays for what.
- Hyper-Specific Detail #2: Property Transfer Tax (Impuesto de Alcabalas). In Azuay province, this tax is approximately 1% of the purchase price or the municipal property valuation, whichever is higher. The Minuta should specify that the buyer pays this, as is customary.
- Hyper-Specific Detail #3: Capital Gains Tax (Plusvalía). The seller is responsible for the capital gains tax. There are two types: a municipal plusvalía and a national income tax on real estate profits. If the seller is a foreigner who has owned the property for less than five years, they may face significant tax implications, which can sometimes lead to negotiation issues. Your attorney ensures the Minuta obligates the seller to handle all their tax burdens, protecting you from any successor liability.
Distinguishing Property Types:
- Hyper-Specific Detail #4: Propiedad Horizontal vs. Independent Property. Is it a standalone house or a condo/apartment? If it's the latter, it falls under the Propiedad Horizontal (Horizontal Property) regime. The Minuta must reference the master deed (declaratoria de propiedad horizontal) and specify your corresponding ownership percentage (alícuota) of the common areas. It must also include a certificate from the building administrator stating there are no outstanding homeowners' association fees (alícuotas). Failing to verify this can leave you responsible for the previous owner's debts.

The Role of the Notary Public: A Neutral Arbiter, Not Your Advocate

A Notary Public in Ecuador is a specialized lawyer and public official. Their duty is to verify the identities of the parties, confirm the legality of the act itself, and ensure the formal requirements of the Escritura are met. They do not represent your interests. They will not point out if you've agreed to a bad deal or if the Minuta omits a critical protective clause. Their role is to formalize the agreement presented to them. Your personal attorney is your only advocate in this process.

The Bulletproof Legal Process: Step-by-Step

Verbal Agreement & Initial Due Diligence: Once a price is agreed upon, your attorney immediately requests the property's title and tax records and pulls a fresh Certificado de Gravámenes.
Minuta Drafting (Your Attorney): Your attorney drafts a comprehensive Minuta incorporating all necessary protections based on their due diligence findings.
Negotiation & Finalization: The draft is sent to the seller's attorney for review. Any negotiations happen at this stage, with your attorney representing you.
Submission to Notary: Once both parties agree and sign the Minuta, your attorney submits it, along with all supporting documents (tax payments, certificates of no debt, etc.), to your chosen Notary.
Escritura Pública Preparation: The Notary uses the approved Minuta as the exact text for the final Escritura Pública.
Closing: You and the seller sign the Escritura before the Notary. Funds are typically transferred at this time. Your attorney should be present to oversee the signing.
Registration: The Notary's office sends the signed Escritura to the Registro de la Propiedad for official registration. Only upon successful registration are you the undisputed legal owner.

⚠️ Broker's Legal Warning: The Property Risk You Must Veto

The most catastrophic risk you can take is signing a Promesa de Compraventa (a binding promise-to-buy agreement, often requiring a substantial deposit) or the Minuta itself without an exhaustive independent review by your own attorney. Do not rely on the seller's agent, their lawyer, or the developer's "standard" contract. I have personally seen cases where these documents contained clauses allowing for price changes, waiving the buyer's rights, or transferring properties with undisclosed liens. Errors or omissions in the Minuta become permanent, costly defects in your property title. Prioritizing legal protection over speed is the only way to ensure a secure investment.

Conclusion

Acquiring property in Cuenca is a fantastic opportunity, but it must be approached with diligent legal foresight. The Minuta is not a mere formality; it is the legal DNA of your ownership. By engaging a qualified attorney to draft and review this document before you sign anything, you are not just avoiding common pitfalls—you are constructing an impenetrable legal foundation for your new home or investment.

Ready to navigate the complexities of Cuenca real estate with complete peace of mind? Schedule your free, property-risk consultation with our team of expat real estate and property law experts.