Spanish Powers of Attorney signed in the UK

image-for-poaA new Spanish case Decision by the Director General of Notaries and Registrars in Spain (DGRN) has been issued on the 14th of September 2016 affecting Spanish Powers of Attorney signed abroad and therefore also those signed in the United Kingdom.

The said decision of the DGNR rejected the registration in Spain of a purchase transaction where a Spanish Power of Attorney signed before an English Notary Public had been granted. The reason for rejecting the registration of the document was that the Land Registrar considered the powers and faculties of the English Notary Public who notarised the Power of Attorney (POA) not sufficiently proved.

Under the aforementioned Decision, a foreign POA should have the same structure than the Spanish public documents. This means that the document should be signed by an authorized person with capacity to give faith and certify the identity of the donor/grantor and his/her capacity.

 

This Decision stated that the foreign POA should also mention that it will be legalized according to the relevant International rules. In the case of a POA signed in the UK, this means the legalisation of the document with the apostille of the Hague Convention.

 

The key point is to ensure on the document that the UK Notary public is giving sufficient warranties to the relevant Spanish authorities as to the capacity of the donor/grantor. From now on, a Spanish POA where the UK Notary Public is restricted to certifying the identity of a person will not be sufficient. A Judgment on capacity will also be required.

 

We are of the opinion, that the said decision cannot be extrapolated to all cases. The power of attorney that created this “storm” of doubts was a power of attorney solely drafted in Spanish and the Notary Public in question limited his involvement to adding a certificate to the power of attorney which lacked any mention to capacity. We therefore think, and hope, that Spanish Notaries and Land Registrars will reconsider their position with regards to the powers of attorney executed in the UK and will soon start to recognise these again. However, there could be the odd exception where a Spanish Notary or Land Registrar will turn down a perfectly valid power of attorney executed in the UK. To avoid these kind of situations, some carefully attention needs to be put into the drafting of the power of attorney to ensure that the document has a higher chance of being accepted in Spain.

Do not hesitate to contact gunnercooke’s Spanish desk if you require further information or help with the signing and execution of a Spanish Power of Attorney in the UK.

Spanish Honorary Consulate office in Manchester

Office Map

 

 

 

 

 

The Spanish Consulate in Manchester closed more than 2 years ago. Since then, all consular matters for the North West were transferred to the Spanish General Consulate in Edinburgh. Very recently an Honorary Consular office has been opened in Manchester and located in our Manchester office. The Honorary Consul is Antonio Guillen, writer of this blog, a dual qualified Spanish lawyer and English Solicitor at DWF LLP in Manchester. Antonio will cover the regions of Greater Manchester, West Yorkshire and North Yorkshire.

The functions of an Honorary Consul vary depending on the Country. When it comes to Spain and the Honorary Consulate in Manchester, the functions are restricted to giving support to both Spanish and UK nationals in those matters where the Spanish Consulate in Edinburgh requires assistance. Some of those functions are the following:

– Dealing with passport applications for Spanish nationals who are less than 12 years old

– Eventual support to Spanish nationals that require urgent assistance in this area of the country (subject to permission from the General Consulate in Edinburgh)

– NIE application forms for those cases where the applicant cannot travel to Edinburgh

– And in very specific cases, certificates and consular documents

The Spanish Honorary Consulate in Manchester cannot prepare Spanish powers of attorneys, wills or deeds but the firm where the Consulate is based can provide this service. Alternatively, those who need one of the 3 things quoted above can travel to the Spanish Consulate in Edinburgh where this service can be provided or fly to Spain and get the said documents done by a Notary Public.

For further information on Consular matters please contact Spanishconsul@dwf.co.uk

For further information on Spanish legal matters please contact antonio.guillen@dwf.co.uk

Spanish powers of attorney for litigation- What is going on in Spain?

 

The fall of the Spanish property market has inevitably led to an increase in litigation matters, as many notaries have seen.

Over-inflated property prices, short demand, tight financial conditions and a very worrying increase in unemployment have all contributed to the fall of a large number of Spanish developers during the last three years.

The most problematic thing is that the Spanish economic downturn has affected not only small developers but also larger firms, as recently reported in the Spanish press.

Companies such as Martinsa-Fadesa and AIFOS have filed for court protection (declaración de concurso), leaving thousands of purchasers, both foreign and nationals, without their promised properties. At the same time, many of those developers who are still surviving have left projects unfinished due to lack of cash or finance.

Notaries practising in the UK have seen an increase in the signature of Spanish powers of attorney for litigation. In some cases, the power is only for the purpose of issuing proceedings in the civil courts against a Spanish developer who has failed to deliver the property on time – or deliver it at all, having cancelled the project.

However, in the majority of cases the norm is for the affected buyer to sign a general power of attorney for litigation, which also includes powers for insolvency and sometimes even criminal proceedings.

This is quite normal in Spain where the lawyer and the “procurador” (a legal representative for Court communications) needs to be appointed by the claimant personally at the court or, if not possible, by way of power of attorney.

The current downturn of the Spanish market has clearly changed the scope of the legal work. Whereas three or four years ago, a Spanish lawyer dealing with British clients used to spend 80 per cent of his time dealing with conveyancing matters, now it is the other way around and conveyancing is a very small part of his work.

On the other hand, litigation has replaced conveyancing as the main source of income for these lawyers and many have identified a golden opportunity with the increase of instructions to issue proceedings against Spanish developers.

Notwithstanding the above, we shall not forget that Spain is experiencing very difficult times and many developers are short of cash. This leads to long and painful legal proceedings where eventually the claimant, after obtaining a judgment, may see all his hopes turned down because the developer has turned insolvent or has no equity in its assets.

But not all the cases look that grim. There are many buyers who were buying off plan properties and were lucky enough to get a proper bank guarantee in place to safeguard their deposits. This has led to an increase in legal proceedings against the banks that issued those guarantees and has proved the easiest and quickest way to recover the monies paid to the developer, plus some annual interest.

Will this year show a similar pattern? I am inclined to think that it will. The situation in Spain is still very difficult and more developers will either apply for court protection or leave other projects unfinished.

This will translate into a continuous flux of powers of attorney during the year. Confused British buyers will come to Notaries with the aim of signing a power of attorney that will allow their Spanish lawyers to recover their deposits.

Unfortunately, not everyone will be successful and therefore it is advisable that any buyer willing to take such a step in Spain is advised properly about the costs involved and the chances of getting any money back before spending thousands of pounds on fruitless actions.

There is a big difference between issuing proceedings against the bank guarantor or issuing proceedings against a developer with no cash or assets. Buyers should be properly informed before embarking upon long legal proceedings in which there are few possibilities to obtain refunds.

But not all, necessarily, has to be bad news. The property market in Spain is suffering a correction on its over-inflated prices which will hopefully translate into a more realistic and sustainable property market in which prices will be more in line with levels of income in Spain.

This article was published in The Notary Magazine in February-March 2010