The resolution dated 17th April 2017 of the Directorate General of Registers and Public Notaries (Dirección General de los Registros y del Notariado – “DGRN”) has established that, contrary to previous resolutions, from now on, if the authorizing Spanish notary of a power of attorney granted abroad, makes a declaration of sufficiency for the legal act, this declaration must necessarily imply that the foreign document fulfils the judgment of equivalence requirements in relation to Spanish public documents.
In accordance with article 98 of Spanish Law 24/2001 on Tax, Administrative and Social Order Measures, Spanish notaries must carry out a double analysis in the judgment of validity of a foreign public document in Spain:
Firstly, Spanish notaries must make the judgment of equivalence, that is to say that they must assess whether the document meets the characteristics required by Spanish law. This is done in two distinct phases:
- In a first phase, they assess the foreign document from a formal perspective, this means, they verify that the foreign document is legalized and/or that it bears the Hague Apostille, as the case may be, (or that neither legalization nor the Hague apostille are required).
- In a second phase, they assess whether the document has the structural elements for it to have legal effect as a Spanish public document, namely:
– That the document has been authorized by a person who has the competence to attest and certify in his country.
– That the person who attests (the authorizing notary public) guarantees the identification of the grantor of the document.
– That the foreign document has the same legal effects in the country of origin.
– That the identity of the parties is proven and that they have legal capacity.
Secondly, Spanish notaries must make the judgment of sufficiency. This means, they must prove that the powers of attorney presented are sufficient to carry out the operation intended to be conducted by the proxies.
In the registrar’s assessment note from which the DGRN resolution is derived, the registrar of property refused to register a change of ownership arising from the sale of a property. The registrar acted on the basis that the judgment of equivalence requirements were not met, given that the authorizing notary had not recorded the reasons for which he understood that the document fulfilled all the judgement of equivalence requirements, despite having given reliable reasons for the judgment of sufficiency.
However, this latest DGRN resolution revoked the registrar’s assessment note, stating that the registrars may not require the authorizing notary to give specific reasons for the judgment of equivalence, and that simply expressing the motivation of the judgment of sufficiency should be enough. Since the judgment of equivalence is performed prior to the judgment of sufficiency, it is understood that if the notary has assessed the latter, it is because the notary understands that the judgement of equivalence requirements have been fulfilled.
On the other hand, the resolution leaves open the possibility that the registrars may assess the judgment of equivalence. If the notary recorded the reasons why he understood that the formalities and structural elements were fulfilled, the registrar could evaluate if the judgment of equivalence is fulfilled or, on the contrary, if it is deemed that the requirements were not met, the registrar may refuse registration.
This resolution will have considerable repercussions on the flexibility of the notary and registries system. Hereinafter, the double filter of notary and registry essentially disappears, leaving only the notary, which will bring agility and flexibility to the system. Consequently, legal relations involving foreign notarial documents shall thereafter be facilitated.
Pedro Blanco
Vilá Abogados
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26th of May 2017
