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It’s sad – but Spanish realism now can avoid a huge loss later

February 16th, 2010

It’s sad – but Spanish realism now can avoid a huge loss later

I am all too often instructed these days by British Nationals whose investment in a holiday home in Spain has turned sour.

The typical scenarios usually have all or a combination of these factors

• The end of a fixed mortgage term - when a replacement loan is either unavailable or far more expensive

• The loss of employment, which means that a foreign second home is now a luxury that cannot be afforded

• The onset of ill health means that regular air travel is now impossible

• The fall in value of the Spanish property (and fear that the value may soon fall further) means that the second home is now a source of huge worry and no longer a pleasure

There have of course been recessions and credit crunches before and history does seem to show that a property owner who can afford to hold his nerve and wait, will eventually find values rising again. But this is of no comfort to an owner who cannot afford to pay increasing mortgage payments. Simply sitting it out should be no more an option than sticking one’s head in the sand but sitting it out and worrying (and doing nothing) is exactly the worst thing to do and also it’s what most people do.

If the above describes the problem you are facing – what action should you take? The obvious choice is to sell the place. This is easier said than done in the present market – the risk is that high fees might be incurred on estate agency and marketing costs, for no result.

In Spain, there may be another option – one which does not exist in UK to the same extent. In UK, mortgage borrowers in distress can be very unhappy to learn that they cannot expect simply to return the keys to the Bank and then be able to walk away from the debt. In Spain however, this might be possible and increasingly often I am notarising Spanish Deeds to do exactly that.

There is provision for this procedure enshrined in the Spanish Civil Code

Article 1175 of the Spanish Civil Code says

Payment by assignment of Property

The debtor may assign his property to creditors in payment of his debts. This assignment liberates the former from liability to the net amount of the property assigned unless there are stipulations to the contrary. Agreements in respect to the effects of an assignment, entered into between the debtor and his creditors shall be made in accordance with …………………..the Code of Civil Procedure

The Spanish phrase for this procedure is “Dación en Pago”.

The difference from English law is that once the dacion en pago has taken place then the debt is wiped. The Bank now owns the property. If the Bank cannot sell it or it makes a huge loss, there is no comeback to the original mortgage borrower. Contrast that with UK where, even after a Bank may have accepted the keys and taken over the property, still the mortgage debt is continuing to rise until the property is eventually sold, perhaps many months or even years later. In Spain the opposite is the case – the slate is wiped completely clean and the former owner/borrower can consign the whole affair to history. He can “move on” as our Government likes to say!

Although this is a procedure where it is not absolutely required that you instruct a lawyer to act for you, my advice is that you certainly should NOT deal with a dacion en pago by merely sorting it out with your Bank direct.

In this procedure as with all financial matters, it is well worth having professional advice. There are rules to be adhered to, and there is the possibility of negotiation. Who will pay for the valuation fees, the Registry costs. Perhaps if the property is well out of negative equity you can negotiate that money is payable back to you at the time of an eventual sale. You need proper advice- especially at what can be a very stressful and indeed emotional time.

However you cannot leave it until matters have gone too far. First – the Property must not be in negative equity prior to the negotiations beginning and Second – the Bank must not have already started legal proceedings against you for repossession of the property.

These two rules taken together underline the importance of acting in time. If you can see now that you are heading for trouble because your Spanish mortgage is simply too expensive, do take legal advice NOW. Sad as it is to cut your losses and to acknowledge to yourself that the Spanish dream is over, early recognition of the reality of the situation can result in being able to hand back the house, hand back the debt, hand back the worry and the sleepless nights and walk away free. The alternative might be to cling on to an increasingly worthless property which you never visit and which is eventually repossessed anyway: leaving you still responsible for an ever increasing debt you cannot afford, a debt which the foreign Bank can in due course attach to your assets in UK or anywhere in the world.

For Spanish property owners in financial difficulty the dacion en pago might just turn out to be a lifeline. And lifelines should be seized whilst there is still time.

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More on the Companies Act s 44

February 4th, 2010

New Tins – New Worms (Authorised Signatories not authorised to sign)

I can make no apology for returning to the question which more than any other seems to cause problems and frustrations for UK companies in dealing with jurisdictions abroad.

It has been noted before, by both lawyers and Company Officers, that we do not seem to be on each other’s wavelengths! I fully understand that there can often be a conflict between the business man in a hurry and the lawyer advising that progress be made only cautiously with strict regard to the wording of the law. We lawyers are not trying to slow things down even though it may seem that we are.

I have previously set out section 44 of the Companies Act with regard to the requirements of valid Deed – and noted that a Company can only appoint an Attorney, by a valid Deed.

I have also blogged about the new s47 of the Act which enables a Company by Deed, to appoint an Attorney whose authority can include the Power to execute future Powers of Attorney by Deed all on his/her own (plus a signing Witness), even though that Attorney may not be a Director or Company Secretary or even an employee of the Company at all.

Still with me? Now for section 44 (3) which in typical fashion attempts to clarify the law and succeeds more often than not in confusing everyone
S44 (3) states that “The following are “authorised signatories” for the purposes of subsection (2)—
“(a) every director of the company, and
“(b) in the case of a private company with a secretary or a public company, the secretary (or any joint secretary) of the company. “

Where is the confusion? This means that the Company Secretary is authorised to sign Deeds and Documents on behalf of the Company, right? Well it would mean that, if the weasel words “for the purposes of subsection (2)” are overlooked. In every other Country in the World the expression “Authorised Signatory” is used and understood by lawyers and business people alike, to have its dictionary meaning. If I am your Authorised Signatory then my signature stands for yours doesn’t it? Perhaps it does, unless we are dealing with an English and Welsh Limited Company!

Because the proviso “for the purposes of subsection (2)” means that section 3 is merely a definition section to interpret s44 (2) which itself states
A document is validly executed by a company if it is signed on behalf of the company—
(a) by two authorised signatories, or
(b) by a director of the company in the presence of a witness who attests the signature.

So you might be an Authorised Signatory, but you cannot validly execute a Company document on your own if you are not a Director!

Do you find room in your heart to pity the poor Notary, who has to explain to the stressed out Company Secretary (who has perhaps been left to run the Company on his own in the factory with all the Directors abroad and who needs to get a Power of Attorney ready for use in Russia TODAY) that just because he is an Authorised Signatory of the Company, he certainly should not be under the impression that he is authorised to sign anything for the Company?

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New Rules for Companies - Deed Execution by Attorney

December 22nd, 2009

New Rules for Companies – Execution of Deeds by Attorney

 

In an earlier blog I have referred to the difficulties that Company Directors often have when preparing documents for their foreign activities, in doing so in a way which complies with the relevant legal requirements. What is often overlooked, due usually to urgency and lack of time, is the fact that most foreign jurisdictions require that a Deed executed in the UK should comply with UK law as well as the law of their own jurisdiction.

 

Time and time again Directors of UK companies think that they can get their Company Deeds executed by an employee who is not one of the Directors, simply because the Company has passed a Resolution to do so. Just because a Company makes a Resolution, this does not in fact change the law! As I explain in my earlier blog, a Company Deed must comply with the law, and be executed by two Directors or by one Director and the Company Secretary either witnessing the affixing of the Seal of the Company, or by them signing on behalf of the Company. Another way is for a Director to sign as a Deed in the presence of a witness who also signs.

 

All of the above methods require that at least one Director is actually available to sign and of course this is often where the problems arise.

 

Now s.47 of the Companies Act has been brought into force since October 2009, and it can assist a prudent Company. What the section does is allow a Company to prepare a Deed of Power of Attorney (using one of the methods above) in favour of any person - who can be another Company, or an employee of the Company, or a lawyer for the Company - expressly including the power to appoint a sub-delegate.

 

Then, when an urgent need arises for a Power of Attorney or other Deed to be executed by the Company at a time when the Directors are unavailable , that named Attorney can now validly execute the Deed on behalf of the Company. This authority derives, please note, from the previous Deed of Power of Attorney and not from a resolution at a hastily convened Board Meeting

 

I would suggest that this is a very useful tool particularly for busy UK Companies with Directors who live or work overseas.

 

I do also point out that many foreign jurisdictions do not consider a Power of Attorney to be reliable when over 12 months old. Therefore a Company minded to grant a standing Power of Attorney to one or more persons whether generally or for specific purposes written in the Power should in my opinion be careful to include an expiry date in each Deed, and to remember to renew at least annually.

 

As ever, please do contact me if you would like your Company to proceed in the way which s.47 of the 2006 Companies Act now permits.

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More Nonsense from India

December 14th, 2009

MORE INDIAN NONSENSE – FROM THE PUNJAB!

 

In my first blog I gave an explanation of the difficulties which have been caused by the decision of the Indian Government to adopt The Hague Convention without ensuring that lawyers and the Courts and regional administrations throughout India actually take any notice. The problem is that whilst international law now says that the only further legalisation stamp required when documents are executed in England and Wales for use in India is the Foreign and Commonwealth Apostille – the Indians in India are seeking to insist upon an additional High Commission stamp- which the High Commission is reluctant to give because to do so would be in breach of the Convention agreement.

 

These difficulties are continuing despite the fact that the Special Commission of the Hague conference has issued a specific rebuke to India “The SC recalls that Article 9 does not permit legalisation by diplomatic or consular agents when the Apostille Convention applies. The SC reminds States Parties of their obligation to take the necessary steps to ensure compliance with the provisions of this Article.”

 

One of my brother Notaries, Mr Ram Bansal of Southall has found that his clients are being seriously inconvenienced by this, particularly in the Punjab and he has written with a complaint. Below is the response which he has received.

 

 

GOVERNMENT OF PUNJAB DEPARTMENT OF REVENUE AND REHABILITATION (STAMP AND REGISTRATION BRANCH)

TO:

 

Sh. Ram T. Bansal, LLB, LLM, Solicitor, Notary Public,

Attorney- At Law, New York,

2nd Floor, 92A The Broadway, Southall, Middlesex, UBI, lQF,

England, United Kingdom.

 

Memo No. 22/1/88-ST VI /8852 Chandigarh, dated the 17-11-09

Subject: - Legalisation of Power of Attorney.

Vide your letter dated 7.9.2009, it has been requested that the document such as power of Attorney etc. Which are sent from England to India and are Apostilled by the authority of U.K. may be accepted and the condition of countersigning from High Commission of India in U.K. may· be removed. 2. In this connection, it is informed that the above suggestion given by you have been considered and it has noticed that such documents which are being received from all countries such as U.K., U.S.A., Canada, Italy, Australia, Kuwait, Malaysia, New Zealand etc. are counter-signed by Indian Embassy, Consulate General of India and High Commission of India in that country, therefore, there is no need to change the existing instructions issued by Govt. of Punjab. / Deputy Secretary Revenue

 

Of course, this letter completely ignores Article 1 of the Convention agreement and the fact that the National Government of India has changed the law. It shows that the Punjab local Government is using a somewhat childish logic – it is saying very clearly that it will not amend its behaviour and adopt the law of its own country simply because it has noticed that it is being allowed to carry on as it always did.

 

At least they have provided written confirmation of the nature of the problem!

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Is there a University of Leeds? Prove it!

November 9th, 2009

 

Is there a University of Leeds? Prove it!

Just to give one more example of the unpredictability and range of the work of a Notary, here is a brief record of an instruction I received during the summer.
I work in Leeds which is of course one of the big cities of England (third largest after London and Birmingham in fact) and The University of Leeds is well known around the world. The idea of having to prove that there is a University here had not occurred to me until I received a call from the University administrators asking me to do just that.
The background is that because of the excellence of the University and the technical knowledge and ability within it, it is able to forge links with industries and governments all around the world wishing to take advantage of its capabilities. However in order to make legally binding contracts and to comply with their own laws and tax regulations these foreign partners need to know as a matter of legal status, exactly what the University is. Is it a limited company? Is it a partnership, a member’s Club, an incorporated individual, an arm of government, a public school, a private school, a Council owned facility like a swimming pool – what is it?
It therefore fell to me to explain after due research, in the form of my Notarial Certificate, just exactly what it is and I must say that I found my research very interesting.
The answer is that the University of Leeds is an Independent Educational Institute. It is the consequence of an Order of the King. In 1904 King Edward VII was petitioned by the then Yorkshire College in Leeds (which was itself the creature of an earlier Resolution of the Royal Court) to create a University in Leeds. By his Royal Charter of that year he brought the University into existence.
In the course of my work I was privileged to be shown the actual 1904 Charter by Liza Giffen, the Archivist for the University. It is important to realise that the 1904 Charter is a historical document, but the University is an organic entity – it grows. So the terms of the Charter – which is the de facto constitution of the University, have had to change over the years to accommodate different requirements and circumstances. These changes are made first by decisions of the Council of the University which are then ratified by Orders of the Privy Council which is the senior constitutional link in the UK between the Crown and the Government – in effect, the legal advisors to the Queen.

Therefore the present day Charter defining the present day University is not the 1904 Charter, but the document into which that first Charter has evolved.  It is this evolved wording which I have incorporated into my Certificate

After all of this enquiry I was then able to prepare my Certificate.

If you would like to see the present Charter, here it is on the website of the University of Leeds, to which I am most grateful for its permission to publish this blog

certificate

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Changes in Legalisation Procedures at The Dominican Republic

September 28th, 2009

 

 

 

Legalisation of documents for THE DOMINICAN REPUBLIC

 

 

Until this month (September 2009), all documents for use in The Dominican Republic required legalisation by two stages.

 

First, a certificate of the Foreign office confirming the identity of the Notary, then secondly a Certificate issued by the Dominican Republic Consulate, that the Foreign Office certificate is genuine. The latter stamp cost £250.00 if a Company document and £60.00 if it was for a private person

 

The change which has made appears to be a case of – two steps forward, two steps back.

 

Two steps forward - Dominican Republic has decided that, with immediate effect, all British documents with a valid Apostille obtained from the Foreign and Commonwealth Office will be received as valid in the Dominican Republic without any requirement to be further legalised by the Consular of the Dominican Republic Embassy in London. 

 

Two steps back – all documents MUST be translated into Spanish with the translation certified by the Dominican Republic Embassy at a cost of between £120 and £200 per document. 

 

It seems to me that for most people this change of procedure will considerably increase the cost and difficulty of preparing documents for the Dominican Republic. However, if the document can properly be prepared in the Spanish language to begin with and if you yourself have sufficient knowledge of written Spanish to read and understand the document, then there is a saving to be found.

 

Please note that, of course, as with any document for use in any Country, I can assist you in providing help in dealing with these formalities.

 

In summary, whilst I cannot do anything to reduce the Consulate’s fees, I can at least ensure that you keep your expense as low as possible, by making certain that the Country’s requirements are understood and complied with and that your documents are dealt with in the minimum time possible.

 

 

 

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Must I Disclose My Personal Address On Company Documents?

August 18th, 2009

REGISTERED ADDRESSES OF COMPANY DIRECTORS
– CHANGES FROM 1ST OCTOBER 2009 –
THE NEW CONCEPT OF “SERVICE” ADDRESSES

At present all Company Directors and Company Secretaries in England and Wales are required to disclose their home addresses to the general public.

They must disclose them to the Registrar of Companies House and they do so in the knowledge that that information will be made available to anyone who pays a small fee to the Registry to discover it. The only exceptions are for those who have applied for and obtained a “Confidentiality Order”. Various reasons have to be proven before such an order can be obtained. One such might be that the Company’s activity renders its officers liable to personal attack by criminals. For example a drug company testing the effect of new medicines on animals might expect to suffer terrorist attacks and an Order could at least enable Officers to keep their home addresses secret.
The law and practice will soon change.
From 1st October 2009 every Director and Secretary must provide Companies House with both their usual residential address, and for each appointment they hold, a service address. The service address will be on the public record and will be public information but the residential address will be protected information.

A Director can choose any address as the service address including the registered office address of the company. The address must be where documents can be delivered and an acknowledgement or receipt can be provided if required. The address cannot be a PO Box or a DX number.

If the Director chooses to use his residential address as the service address the fact that the two addresses are the same would not be apparent from the public record.
The residential address will only be available to prescribed regulatory authorities such as the police and HMRC, and it may also be made available to Credit Reference Agencies.

What does the introduction of service address mean for Directors?


Directors will be able to file a service address for the public record. This address can be the same as the residential address, or the registered office address, or it can be somewhere different. This will be introduced from 1st October 2009.
What does the introduction of service addresses mean for my Clients?

 

Whilst not all Notaries appear to take the same view, my own opinion is that when I notarise a Company document executed by a Company Officer, I shall be content to refer to the registered Service Address in my Certificate and shall not seek to insist that your Residential Address is used.
This does not of course alter my requirement that every client appearing before me must provide evidence of identity and full residential address; the change is that this information is for my own records only and need not be shown in the Notarised paperwork should you prefer that the Service Address is shown instead.

 
Please note that this blog does not contain the full detail of the changes. They are disclosed in full on the Companies House Website and the link below gives further information as to who can lawfully gain access to the residential address details and for what reason.
http://www.companieshouse.gov.uk/companiesAct/implementations/oct2009.shtml#directorsserviceaddresses

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Claim of Right

July 21st, 2009

 

Notice of Understanding and Intent and Claim of Right

 

Many Notaries have recently been contacted by persons wishing to prepare a Notarised Document headed “Notice of Understanding and Intent and Claim of Right”. They explain that they wish to claim the status of “Freeman on the Land”. You can find any number of websites dealing with these concepts if you enter either phrase into a search engine.

 

Please note, I will not assist with these documents.

 

1. Whether or not there is any validity to these documents – and my belief is that there is none – there is nothing about them which will be validated by the addition of a Notary’s Seal.

2. To the extent that these documents are entered into by people with the intent of decoupling themselves from the tax and legal system of the countries they live in they are doomed to failure and as a Notary I will not be party to the production of pointless documents

3. Also, as a Notary I have sworn an Oath of Allegiance to the Crown. The documents may well be not only pointless but actually unlawful. I repeat, I will not assist with them

4. One should in any event be careful about what one wishes for. It may seem superficially attractive to be a “Freeman on the Land” – self supporting, free from petty restrictions in parking or speeding or paying tax. Rather less so, I suggest, to be excluded from the benefits of the National Health or Education or Emergency Services. In the Middle Ages, no person would wish to claim himself to be an “Outlaw”. It was an effective sentence of death meaning literally to be outside the protection of the law. I do not think that this meaning has essentially changed; it is the Law that holds our human societies together and to place oneself outside the Law is to take a very dangerous step.

This craze appears to have begun in Canada. Now we have a clear and self evidently 
sensible Canadian Court judgment which will perhaps help to bring this nonsense to an end
http://www.albertacourts.ab.ca/jdb/2003-/ca/civil/2009/2009abca0201.pdf

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What Exactly Does A Notary Do Anyway?

June 18th, 2009

 

What Exactly Does A Notary Do Anyway?

 

I have summarised the nature of my work in one sentence on my website – “The function of a Notary Public is to substantiate evidence of human activities”

Fine – but what does that mean in the real world and what exactly do I do all day? For this blog I thought it might provide a helpful answer to that question if I simply prepare a list of the scope and nature of the work I have done in the last few weeks. In every case, the person attending my office has been required to produce an original passport and at least one other proof of residence address (Bank statement, Council tax bill or utility bill). In addition where the client is a Limited Company, PLC or LLP I have commissioned a search of Companies House, to ascertain that the Company exists and who are its directors and to see its Memorandum and Articles of Association. Where appropriate I have obtained Foreign Office Apostille or Consular legalisation (see my main site for more explanation of that)

 

So, I have recently:-

·         Witnessed a Deed of Conveyance, for a house purchase in Jamaica. Although an Apostille can be obtained for Jamaican documents, none is usually required

·         Witnessed the execution of a Deed of Power of Attorney by a Company Director in relation to the transfer of shares in a German Company.  Also, obtained Apostille

·         Provided certified evidence of the existence of a UK Company for the purpose of evidence required by a German Court. Apostille

·         Witnessed the execution of a personal Power of Attorney in favour of a foreign lawyer for a house purchase in Malta. Apostille

·         Witnessed the execution of a personal Power of Attorney in favour of his brother so that my client could deal with his affairs in Hong Kong. Again, Apostille required

·         Act as supervising Notary to the execution by my clients of their Wills dealing only with their Estates in Spain. Apostille

·         Certified for use in the Canary Islands that a UK Grant of Probate is genuine, so that the Spanish Estate of the Deceased could be administered. Apostille required

·         Twice in the past week, I have acted for Doctors seeking to obtain work permits and visas for Australia, and prepared certified copies of their professional qualifications and degrees. Australia does not (yet) require any Apostille.

·         For a client moving to India, obtained certification from his children’s school as to their academic progress so that they can find appropriate school placing in India. And see my earlier blog about the ongoing saga as to whether my certificates for India should have Apostilles (yes!) or Indian High Commission Certification (no!)

·         Took evidence and prepared Affidavits from a couple wishing to marry in Sri Lanka stating that each is single and adult and free to marry. For Sri Lanka the usual requirement is for an Apostille plus Consular Authentication but in this case the travel agents concerned said no legalisation was needed. I advised my clients to check this very carefully

·         Witnessed a Power of Attorney appointing a lawyer in India for use in Indian Court proceedings where there is a land ownership dispute. The four children of an Indian citizen now all live in England and their father has died they. They now require to protect their land rights. Apostille

·         Witness execution of a mortgage Deed for use in Florida. In Florida, a Deed which is executed in England is required to have been signed not only in the presence of a Notary Public but also in the presence of two additional adult witnesses. Although no Apostille is usually required for US Deeds, in fact the United States is a party to the Convention of the Hague. For that reason occasionally Floridian lawyers will request the Apostille. Often this is required for New York and California also.

·         Witnessed the execution of house sale papers for Barbados by the Executor of the deceased house owner there. No Apostille is required for Barbados when the deeds are executed in UK

·         Witnessed the signature of a letter of authority by a Company sales executive to confirm for the authorities in Saudi Arabia that a person there is its genuine agent. For Saudi Arabia, legalisation with Foreign Office then Saudi Consulate via the Arab British Chamber of Commerce

·         Countersigned for USA a medical student’s application for permission to sit medical examinations there. No further authentication was required.

·         For Slovakia, obtained from the UK Registry of Births Deaths and Marriages a Birth Certificate for a child born here of Slovakian parents. Obtain the Apostille upon it, so that the certificate would be accepted in Slovakia and the child could obtain a Slovakian passport.

·         For Saudi Arabia and also United Arab Emirates, I witnessed a Power of Attorney Deed and a copy of a Board Meeting resolution produced to me by a Company director of a UK Company and dealt with all legalisation (Apostille, UAE Consulate, Saudi Consulate via Arab British Chamber) in order to establish the decisions of the Company as to its representation in those jurisdictions.

·         Confirmed for the Spanish Tax authorities the status of a major UK PLC company in relation to its VAT registration and obtain Apostille

There is I think no limit to the scope and nature of the actual jobs I may be called upon to do but I hope the list above gives a flavour of the very interesting and varied problems – and solutions – that I deal with day to day.

As ever, please do email me if you would like me to respond to any thoughts or queries you have, arising from this blog

 

Posted in Australia, California, Canary Islands, Germany, Hong Kong, India, Jamaica, Malta, Saudi Arabia, Slovakia, Spain, Sri Lanka, USA, Uncategorized | No Comments »

“Witnessing” Signatures - Signatory not present!

May 20th, 2009

 

WITNESSING SIGNATURES

 

It might surprise you that often I am asked to assist in a case where an urgent document -which needs to be “witnessed by a Notary Public”, has in fact already been signed. “Can you witness a document please; Mr Jones signed it last night!”

 

Usually there is nothing sinister about this – typically it is just a matter of someone being very busy.

 

Imagine a Company Director, who has flown in from Brazil late on a Saturday night and dealt with his paperwork in his office overnight then caught the early morning plane to South Africa on Sunday. With no time to arrange a Notary to attend to witness his signature, he leaves the signed paper on his desk and asks his colleagues to “get it notarised” the following week.

 

Clearly the word “witness” has a dictionary meaning – I witness what I see. I cannot be a witness, if I didn’t see.

 

Some legal papers – particularly those called DEEDS and also of course WILLS – are defined by Statute Law as required to be signed in the presence of appropriate witnesses. If they are not witnessed, they are in-valid. If my imaginary Businessman has left a document like that to be dealt with then of course I cannot assist.

 

However it may sometimes be that the document does not require a witness as a matter of legal validity; but merely that some person or Authority abroad needs to be satisfied that the document was properly signed by the right person.

 

For example, a letter from a Company Director, confirming to a customer abroad that Fred Bloggs is a properly appointed employee of the Company authorised to take orders for company products, does not need to be a deed. It does not need to be witnessed, even though the foreign customer may require that it be Notarised. In such a case, I can often assist. If I know the signature of my client and already have copies of it on other papers in my records, if he emails me to confirm that he did indeed sign the letter, then I can add a Notarial Authentication.

 

In such a case my Certificate might say that – “As a Notary Public well aware of the signature of Mr Jones I have carefully considered the signature above which was made in my absence and I hereby confirm it to be the genuine signature of the said Mr Jones”.

 

This makes it clear that I was not a witness, but nevertheless I certify that Mr Jones made the signature.

 

This arises so often, that the Council of the Notaries Society, has given written guidance which I set out below

 

THE NOTARIES SOCIETY

AN OPINION OF THE COUNCIL

CERTIFYING UNATTESTED SIGNATURES

A Notary may properly witness a signature only if it is signed in his presence . Similarly he may authenticate the due execution of a document only if it is executed in his physical presence. Occasionally a notary may be asked to verify that a signature is genuine, even though he was not present when the signing took place.

If he accepts such instructions then he must adhere to the following minimum standards:

1. On a prior occasion the Notary must have first seen the signatory affix his signature to a form which is retained in the protocol file of the Notary;

2. The Notary should check the continued existence of the signatory regularly;

3. If the signatory is a representative of an organisation or company his continued authority should be checked regularly;

4. The Notary should at the time of verifying the signature take such steps as are reasonable to ensure that the signatory has in fact signed the particular document;

5. The certificate must be unequivocal and must not state or imply that the signature has been affixed in the presence of the Notary or that the document has been properly executed;

6. The Notary must refuse to certify the unattested signature if full attestation by a notary is required to complete the formal requirements for the proper execution of the document.

7. The Companies Act 2006 allows the execution of Deeds on behalf of a Company by the signature of one Director in the presence of a witness who attests his signature. Notaries must be aware of the risks involved, and specifically state that they are not attesting a signature which was not affixed in their presence, so as to avoid an accidental attestation which would give the document an authenticity and validity which it does not deserve. But it would be possible to attach a notarial certificate to a document on which the director’s signature had already been witnessed, provided that all of the above safeguards were followed.

Notaries must be aware of the risks of issuing such certificates and should, if in any doubt at all, decline to act.

It is the opinion of the Council of The Notaries Society that there can be no professional objection to a Notary certifying the fact that the signature on a document is that of a signatory known to him provided that the Notary follows the foregoing procedure.

Dated this 20th day of January 2009

Thomas A Hoyle

President The Notaries Society

By authority of the Council

© The Notaries Society

 

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