The validity and efficiency of Notary Powers granted before foreign Notaries in Spain

It is common practice in the daily legal relations to conduct business in the name and representation of foreign natural and legal persons, which, in most cases, are carried out based on notary powers granted before a foreign public notary, which up to the present time, despite the trend already pointed out by the General Directorate of Registries and Notaries (see resolution of 27th February 2011, BOE No. 80 of 2 April 2001), it had not generated any problems from a legal and commercial perspective, something that is going to undergo a rather abrupt change.

Date 12/12/2016

The reason for this alteration of the general practice lies in the recent Resolution of September 14, 2016, of the General Directorate of Registries and Notaries in the appeal filed against the qualification note issued by the Registrar of Property of Mazarrón,. By which it agrees to suspend the inscription of a purchase deed with a subrogation mortgage.

In this resolution of the General Directorate of Registries and Notaries, it is stated that the qualification of the deed was aptly negative considering, among other matters, the one referring to the representation of the party, since the Spanish notary authorizing the power, although he made a judgment on the sufficiency of the faculties, did so without any authorized or authenticated copies of the deeds of power, but a copy or testimony, which undermines the sufficiency judgment and the juridical business concluded, so that the Registrar of The Property that had to qualify the registration in the Registry understands that the alleged representation is not accredited.

The issue presented in the appeal against this negative qualification which comes to settle the aforementioned resolution of the GDNR, refers to the scope of the registration qualification of a power granted abroad, before the public notary of Liverpool, that the Spanish Notary judged sufficient for the concrete granting, carrying out in this respect the judgment established in Article 98.2 of Law 24/2001, on Fiscal, Administrative and Social Order Measures, under which "The notary's description of the identification data of the authentic document and its assessment of the sufficiency of the representative faculties shall be sufficient faith of the accredited representation, under the responsibility of the notary".

The Notary considered that the party granting the powers of representation had the ability and legal capacity to do so under the British law, in the same way that it considered that the forms and solemnities required by said legislation for this grant had been observed, for which the Notary concludes under its responsibility, that the person to whom the powers have been granted enjoys the power of sufficient representation for the granting of the deed of sale that is intended to be registered in the Registry.

This proceeding of the Notary is challenged by the General Directorate of Registries and Notaries in the resolution that is under study, since this governing body confirms that the notary certificate (notarial certificate), issued by the public Notary of Liverpool, cannot be considered as a power of attorney for all purposes, since to accept such equivalence would require a report of a diplomatic or consular official, British or Spanish, who would accredit so.

Based on this same equivalence term the D.G.R.N. continues its legal argument, providing that when a Spanish Notary has a power granted before a foreign Notary before him, they must perform a double analysis: on the one hand should note that there is sufficiency of power with respect to the Spanish Law, and, on the other, that there is equivalence so that foreign law requires the same formalities as the Spanish law for the granting of powers, which means that the foreign power must be authorized by those who have the competence to grant public faith, and that this Public notary identifies who gives the power, as well as its capacity for the act or business that contains that power. An equivalence that, D.G.R.N in the resolution analysed, does not occur in the question that comes to solve, since the notary did not lend itself to observe if the functions of the public notary are equivalent to the one of the Spanish Notary, something that turns out not to be, since the British Public notary do not issue capacity judgment, and therefore cannot be considered equivalent to the Spanish Notaries. A different case is that of the notary at law or lawyer notary whose functions are equivalent to those of our public notaries.

The resolution so far analysed leaves us in a situation that does not seem to fit the international reality in which we live in, as it is a barrier to current legal and commercial traffic, as reflected by the fact that in order to assert the powers granted before a foreign notary, as long as he can issue capacity judgment, this in his deed must prove his powers are equivalent to those of a Spanish Notary. In case the foreign notary is not empowered to issue a capacity judgment, the powers will have to be granted before the Spanish Consul in the country in question, which of course is a way of making the situation difficult without obtaining any guarantee in return.

Pablo Antonio Sánchez - Balms Abogados Marbella

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