Understanding the 'Minuta' and 'Escritura Pública': Key Differences in the Peruvian Property Purchase Process

As a licensed Peruvian real estate broker specializing in the Arequipa market, I frequently guide foreign investors through the intricacies of our property acquisition laws. One of the most common areas of confusion, yet arguably the most critical for ensuring a secure investment, lies in distinguishing between the 'Minuta' and the 'Escritura Pública'. These two documents, while intrinsically linked, serve distinct purposes in the Peruvian property transfer process, and misunderstanding their roles can lead to significant legal complications.

This article aims to demystify these documents, offering a detailed, step-by-step guide for expats and foreign investors navigating the Arequipa real estate landscape. Our focus is on due diligence, legal certainty, and practical investment strategies tailored to the unique aspects of the 'White City'.

The 'Minuta' (Draft Contract) – Your Initial Agreement

The 'Minuta' is the foundational document in any Peruvian real estate transaction. It is, in essence, a private legal document that serves as the preliminary agreement between the buyer and the seller.

What is the Minuta?

The Minuta, formally known as a 'Minuta de Compraventa' (Draft Sale Agreement), is a private contract drafted by a lawyer. It encapsulates all the agreed-upon terms and conditions for the sale and purchase of a property.

Purpose and Contents:

This document formally outlines:

Identification of Parties: Full legal names, identification numbers (DNI for Peruvians, Passport/Carné de Extranjería for foreigners), and marital status of both buyer and seller.
Property Description: Precise details of the property (known as 'predio'), including its location, area, boundaries, and most importantly, its unique registration number (Partida Registral) at the National Superintendence of Public Registries (S.U.N.A.R.P.).
Sale Price: The agreed-upon purchase price, typically expressed in Peruvian Soles (PEN) or US Dollars (USD), and the payment schedule. For example, a common arrangement might involve a 10-20% down payment upon signing the Minuta, with the balance due upon signing the Escritura Pública.
Payment Terms: How and when payments will be made, including any financing details.
Delivery Date: When the property will be handed over to the buyer.
Warranties and Representations: Statements by the seller regarding the property's legal status (e.g., free of liens, encumbrances, or third-party claims).
Conditions Precedent/Subsequent: Any specific conditions that must be met before the sale can be finalized or after it.

Who Drafts It and Its Legal Standing?

The Minuta is drafted by a qualified Peruvian lawyer representing either the buyer or, more commonly, jointly negotiated by lawyers representing both parties. It is signed privately by the buyer and seller.

Crucially, the Minuta is legally binding between the contracting parties only. This means that if one party defaults on the terms outlined in the Minuta, the other party can pursue legal action against them. However, it does not confer full legal ownership to the buyer, nor can it be registered at S.U.N.A.R.P. It is a vital step, but it is not the final one. Think of it as a robust handshake documented formally – enforceable between you and the seller, but invisible to the broader legal and public system.

Safety Check: Always ensure your lawyer conducts thorough due diligence before the Minuta is drafted. This includes verifying the seller's identity, the property's clear title at S.U.N.A.R.P., and any municipal tax obligations.

The 'Escritura Pública' (Public Deed) – The Official Conversion

The 'Escritura Pública' is the document that transforms your private agreement (the Minuta) into a public legal instrument. It is the cornerstone for achieving true and legally recognized ownership of property in Peru.

What is the Escritura Pública?

The Escritura Pública is a public deed issued by a Notary Public. It is the formal legal document that certifies the transfer of property from the seller to the buyer.

Purpose and Contents:

The primary purpose of the Escritura Pública is to provide legal certainty and public faith (fe pública) to the transaction. It essentially ratifies and elevates the terms previously agreed upon in the Minuta into an official, unchallengeable public record.

The Notary Public incorporates the entire text of the Minuta into the Escritura Pública, along with additional formal legal language, certifications, and verification of identities. It also records:

Notary's Certification: The notary's official statement verifying the identities of the parties, the legality of the transaction, and the capacity of the parties to enter into the agreement.
Proof of Payments: Confirmation that the transfer tax (Alcabala) has been paid.
Legal Formalities: Adherence to all statutory requirements for property transfer.

Who Drafts It and Its Legal Standing?

While the content originates from the Minuta, the Escritura Pública itself is drafted, legalized, and issued by a Notary Public ('Notario Público'). The Notary's role is not just to witness signatures; it is a critical legal function that involves:

Verification: Confirming the identities of all parties, their legal capacity, and that the property description matches S.U.N.A.R.P. records.
Due Diligence: Conducting their own checks to ensure the property is free of liens or encumbrances, verifying municipal tax payments, and ensuring the seller is the legitimate owner.
Collection of Taxes: Ensuring the transfer tax (Alcabala) is paid to the relevant municipality.
Public Faith: Endowing the document with fe pública, making it legally unassailable and universally recognized.

The Escritura Pública is the only document that can be registered at S.U.N.A.R.P. Its signing and subsequent registration are the decisive steps that transfer full legal ownership to the buyer, making the transaction legally enforceable against all third parties (known as erga omnes). Without an Escritura Pública and its registration, your ownership is incomplete and vulnerable.

Key Differences and Why They Matter to You

Understanding these distinctions is paramount for any foreign investor seeking security in Peruvian real estate.

Feature	'Minuta' (Draft Contract)	'Escritura Pública' (Public Deed)
Nature	Private document	Public instrument
Origin	Drafted by a lawyer, signed privately	Issued by a Notary Public, based on the Minuta
Legal Status	Binding between parties only (inter-partes)	Binding against all parties (erga omnes); fe pública
Enforceability	Enforceable through litigation between parties	Fully enforceable, universally recognized
Notarization	Not required for signing	Mandatory for execution and validity
S.U.N.A.R.P. Reg.	Cannot be registered	Mandatory for registration
Ownership	Does not transfer full legal ownership	Transfers full, legally recognized ownership
Security	Provides contractual security, but not public	Provides public, legal, and absolute ownership security

Why do these differences matter for you, the foreign investor? Imagine you've signed a Minuta, paid the full price, and moved into your new home in Yanahuara, Arequipa. If, for some reason, the seller becomes unwilling to sign the Escritura Pública or if they attempt to sell the property to a third party, your ownership is not legally protected against that third party without the Escritura Pública and its S.U.N.A.R.P. registration. The Minuta, while binding between you and the seller, does not make you the registered owner in the eyes of the state or potential other claimants.

The Escritura Pública, and its subsequent inscription at S.U.N.A.R.P., is your ultimate safeguard. It's the moment your private agreement becomes an unassailable public record of your ownership.

The Step-by-Step Property Purchase Process for Foreign Investors in Arequipa

Here’s a practical guide to how these documents fit into your property acquisition journey:

Initial Due Diligence (Pre-Minuta):
- Property Verification: Obtain a 'Copia Literal' (certified copy of the property's registration history) from S.U.N.A.R.P. in Arequipa. This document reveals the current owner, previous transfers, liens, mortgages, and any other encumbrances.
- Municipal Verification: Check municipal records for property taxes ('Impuesto Predial') and utility bills. Ensure no outstanding debts.
- Zoning & Restrictions: Especially in Arequipa, if you're considering a property in the Historic Center (a UNESCO World Heritage site), verify any specific restrictions on modifications or usage. These can be stringent and require permits from the Municipality and often the Ministry of Culture.
- Recommendation: Engage a trusted Peruvian lawyer and a local real estate broker (like ArequipaRealEstate.com) at this earliest stage.
Negotiation & Offer:
- Once due diligence confirms a clear title, negotiate the price and terms with the seller. This might involve an 'Oferta de Compra' (Offer to Purchase).
Drafting the Minuta:
- Your lawyer drafts the Minuta, incorporating all agreed terms. This is a comprehensive document requiring meticulous attention to detail.
- Safety Check: Ensure all aspects of the property (including any specific conditions, such as 'aire' rights for future expansion or shared common areas) are clearly defined.
Signing the Minuta:
- Both buyer and seller, along with their respective lawyers, review and sign the Minuta. This typically involves the initial down payment.
Notary Selection & Document Submission:
- Choose a reputable Notary Public in Arequipa. Your broker or lawyer can provide recommendations based on their experience and efficiency.
- The signed Minuta and all supporting documents (IDs, property records, tax receipts) are submitted to the Notary.
Formalization of the Escritura Pública:
- The Notary meticulously reviews all documentation, performs their own due diligence, and drafts the Escritura Pública based on the Minuta.
- Payment of Transfer Tax (Alcabala): Before signing the Escritura Pública, the buyer is responsible for paying the Alcabala, a municipal transfer tax. In Peru, this is generally 3% of the property's sale price or its municipal tax value (whichever is higher), after deducting 10 'Unidades Impositivas Tributarias' (UIT). As of 2024, 1 UIT is PEN 5,150. For example, if a property sells for PEN 760,000, after deducting 10 UIT (PEN 51,500), the taxable base would be PEN 708,500. The Alcabala would then be 3% of PEN 708,500, totaling PEN 21,255.
- Both buyer and seller, along with the Notary, sign the Escritura Pública. This is the moment when the balance of the purchase price is typically paid.
S.U.N.A.R.P. Registration:
- Immediately after signing, the Notary submits the Escritura Pública to S.U.N.A.R.P. for registration in the public registry. This process ensures your ownership is publicly recorded and legally indisputable.
- Timeframe: Registration can take a few days to several weeks, depending on S.U.N.A.R.P.'s workload and any complexities. Your lawyer will monitor this closely.
Post-Registration:
- Once registered, your lawyer will obtain a new Copia Literal reflecting your ownership.
- You must then register the change of ownership at the relevant municipality for property tax purposes and transfer utility services (electricity, water, internet) into your name.

Local Context & Warnings (Arequipa Specific)

Arequipa, with its unique architectural heritage and vibrant culture, presents specific considerations for foreign investors:

Historic Properties in the White City: If you are considering a property within Arequipa's Historic Center (a UNESCO World Heritage site), be aware of strict regulations regarding renovations, modifications, and even paint colors. Any alterations require specific permits from the Municipality and often the Ministry of Culture. Due diligence here extends beyond legal title to architectural and heritage restrictions.
S.U.N.A.R.P. Scrutiny: S.U.N.A.R.P. in Arequipa, like other regional offices, conducts thorough checks. Properties with older titles, previous irregular transfers, or discrepancies in measurements (e.g., between the registered plan and the physical property) can trigger delays. Patience and robust legal representation are paramount.
The Notary's Integral Role: In Peru, the Notary Public's function is far more comprehensive than in many common law jurisdictions. They are not merely witnesses; they are legal professionals who ensure the legality and legitimacy of the transaction, acting as a crucial safeguard against fraud. Choose your Notary wisely based on reputation and experience.
Tax Considerations: Beyond Alcabala, sellers may be subject to capital gains tax (5% of the capital gain for individuals, if the property is not their primary residence and was acquired after January 1, 2004). Foreign investors should understand that while direct property ownership in Peru is generally straightforward, tax implications for rental income or future sale need careful planning with a local tax advisor.
Reliable Neighborhoods: Areas like Yanahuara, Cayma, and Selva Alegre are highly sought after by both locals and expats for their amenities, safety, and appealing living environments in Arequipa. Miraflores and Mariano Melgar also offer good options, often with more accessible price points. However, even within reputable districts, individual property due diligence is always required.

Navigating the Peruvian property market requires a clear understanding of its legal framework. The Minuta sets the stage, but the Escritura Pública, signed before a Notary Public and subsequently registered at S.U.N.A.R.P., is the definitive act that secures your investment and establishes your full legal ownership. Do not proceed without robust legal counsel and expert guidance.

⚠️ Legal Notice: Consult a Local Lawyer. The information provided in this article is for general informational purposes only and does not constitute legal advice. Property law in Peru is complex and subject to change. It is imperative that all foreign investors consult with a qualified, independent Peruvian real estate lawyer and a reputable Notary Public before entering into any property transaction in Arequipa.

For personalized guidance and expert assistance in navigating the Arequipa real estate market, trust the experienced team at ArequipaRealEstate.com. Your secure investment in the White City starts here.