During purchase transactions for properties located in Spain, and in the case that one of the parties (whether the buyer or the vendor) resides abroad, it is possible that the party in question is represented by a third party with Power of Attorney to act on their behalf during the purchase process.
In this article we are going to explore some of the practical aspects of granting Spanish Powers of Attorney (or Notarial Powers), with a focus on their use in real estate transactions. We advise that during the entire process from preparation to signature for granting power, you should seek the advice of a Spanish lawyer.
Power of Attorney in Spain is a public document, approved by a Spanish Notary that permits a person (the donor or granter) to appoint another person (the representative) to act on their behalf for specified legal transactions. In order to be able to act on behalf of the donor or granter for certain legal procedures, the representative must always provide proof of his or her capacity to act as a representative by means of a certified copy of the Power of Attorney.
The person granting Power of Attorney may revoke or annul it at any time by requesting the representative to return the certified copy of the Power of Attorney. In the case that the representative does not do so, it shall be necessary to issue a public deed revoking the power and to duly notify the representative, under the requirements of the Notary.
How to grant Power of Attorney
- Before a Notary in Spain
- In the Spanish Embassy or Consulate corresponding to the place of residence of the donor or granter
- Before a Notary in the country of residence of the donor or granter (Notary Public in the UK, Notaire in France)
The least complicated, fastest and most cost effective option to grant Power of Attorney is before a Notary in Spain. If you are not a Spanish citizen you must be accompanied by a witness that will act as a translator, your lawyer should carry out this task.
If you choose to grant Power of Attorney through the Spanish Consulate, your lawyer should prepare the documentation in double-column format with both required languages (Spanish, and the official language of the donor or granter’s country of residence) and send it to the embassy or consulate in order to proceed to signature of the declaration. In this case Hague Apostille validation (under The Hague Convention) shall not be necessary.
If you decide to grant Power of Attorney before a Notary in your country of residence, we would advise that your lawyer issues the document to the Notary in both languages in double-column format. In this case as well as granting powers they must be validated by The Hague Apostille in order for them to be legal in Spain. In the case of the UK, you must contact the Foreign & Commonwealth Office in order to obtain The Hague Apostille validation stamp or vignette.
Regarding the content and duration of the Power of Attorney, we strongly recommend that if a specific Power of Attorney is required for a property transaction in Spain, that you delegate the matter placing it in the hands of specialised lawyers in this field. They will strictly delimit the content to the exact tasks required for the Conveyancing process, but at the same time with sufficient leeway to exercise the required rights and comply with the obligations derived from the contract until its extinction. They will assure that the power is sufficiently concrete and delimited to what is strictly necessary in order to avoid the authority being exceeded by the representative.
Expert Advice
By means of a recent ruling of September 14th 2016, the Spanish General Directorate of Registries and Notaries has questioned Powers of Attorney granted in the UK by Public Notaries in England. To our knowledge, by correctly wording the required clauses in the documentation prepared by the Spanish lawyer and stating more explicitly that the capacity of judgement of the donor or granter authenticated by the foreign Notary Public is equivalent to that of a Spanish Notary, this would be sufficient to circumvent the legal impediment.
At MSG LEGAL we provide a Power of Attorney preparation service to formalise property transactions, for both the signature of the powers in a Spanish Notary and the recognition of the signature in your country of residence. We coordinate our practice with the corresponding Spanish Consulate or Notary Public, take care of dispatching the documentation in both languages, the preparation for the donor or granter’s signature, and if necessary subsequent legalisation with The Hague Apostille.
Please note the information provided in this article is of general interest only and is not to be construed or intended as substitute for professional legal advice.
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