As an English Notary, I am very often asked to assist people in England who need to produce documentation for use in foreign jurisdictions.

Of course, the requirements of foreign jurisdictions are many and various and so it should not be too much of a surprise to find that occasionally there are contradictions between what is needed abroad – on the one hand – and what is permitted in England - on the other.

One example of this arises when I am asked to produce notarially certificated COPIES of UK documents. These are often needed in order to obtain a visa for work or settlement in a foreign country. In particular in the United Arab Emirates and in Canada (and no doubt in several other countries) the requirement often includes a request for COPIES of birth certificates or of marriage certificates to be produced.

In respect of clients needing to resolve matters after a relative’s death abroad – perhaps wanting to obtain the release of money in a foreign Bank – the requirement often is for a COPY of a death certificate to be notarised and then Apostilled.

However, the rules of Crown Copyright require that no-one may place an official birth death or marriage certificate on a photocopier and press the button. If they do, a Notary Public is certainly not allowed to add a certificate to it.

The actual rule is to be found at

http://www.opsi.gov.uk/advice/crown-copyright/copyright-guidance/copying-of-birth-death-and-marriage-certificates-and-marriage-registers.htm

and its consequence is that a Notary can only certify an “Original” certificate.

Many of the clients I see have the actual birth certificate which their parents were given at the time of the birth – or the marriage certificate handed to them at their wedding. Although these certificates can only be documents onto which the fact of the birth or marriage registration are copied – so that they themselves are “Certified Copies”, nevertheless I often find that my client considers that these are “original” certificates which have significant sentimental value.

The answer is that new certificates can be purchased direct from the Registry office at any time. If you require a certificate to be Notarised, it is quicker if you contact me and I will purchase the new Certificate/s in readiness for our meeting. The advantage of this that, because I receive it direct from the Government office, I will know that is genuine without need of any further checks and so I can certify it straightaway. Otherwise if my client brings me the certificate, I can only certify it to be genuine after phoning or writing to the Registry for verification.

Since October 2008 it has not been possible to set up a Company in England and Wales unless at least one of the Directors is a living human - a “Natural Person” - and not itself another Company.

Because this was not previously the rule, there has been a run-off period of grace allowed of two years.

This indulgence will expire on 30th September. On or after 1st October 2010, any Company in which all of the Directors are corporate entities will be in default and subject to being fined. Please note that even if the Company Secretary is a natural person, this will not comply with the Law if none of the Directors are natural persons.

If your Company is in this position – Time is running out

I return to the topic of the Foreign and Commonwealth Office Apostille – it seems to me that this is a part of the Notarial process which is misunderstood more than any other.

Typically a client is told that the document to be signed in England must be returned to the foreign jurisdiction “with the Apostille”. Usually this is the first time that the word has ever been heard by my client – who does not know what its meaning.

Also, it is by no means always the case that the foreign lawyer advising has a full understanding of what is required. In England there is a clear distinction between the lawyers who have jurisdiction here (the Solicitors) and those whose jurisdiction extends overseas (Notaries). In most countries in the world, there is no such distinction. Particularly in Europe, the lawyers who deal with land transactions are all Notaries. They naturally deal, almost all of the time, with transactions and clients who live in their own country and therefore generally speaking most foreign Notaries have little or no experience of dealing with overseas issues. This contrasts entirely with the experience of UK Notaries, whose daily work is almost solely concerned with overseas matters. This means that more often than a foreign Notary is likely to want to admit, they have little or no direct experience of acting for clients who need to execute documents in England.

What they do know, is that they need an Apostille and so this is the instruction that a person in England is given.

A problem that arises is that the client in England who has been told that an Apostille is required once he has signed his paperwork in the presence of a Notary, has never heard the word “Apostille” and has probably never heard the word “Notary” used in England. S/He contacts the foreign Notary to explain that the lawyers in UK are called “Solicitors” and the foreign Notary might say that all that is required is the Apostille anyway. So since neither the client nor the Foreign Notary are aware that Solicitors in England do not have the jurisdiction of Notaries, off the UK resident goes to have the document witnessed and certified by a Solicitor.

At this stage a well informed Solicitor would explain to the client that in fact a Notary is required, but often this does not happen since the Solicitor has no experience of being asked to assist in relation to a foreign transaction and simply does not realise that s/he does not have the necessary authority.

You might think that this catalogue of errors would be brought to a halt when the paperwork is submitted to the Foreign and Commonwealth (FCO) office for the Apostille to be affixed. However, this is not the function of the FCO – it simply adds the Apostille if satisfied that the the relevant signatory is known to it. The FCO will confirm, by affixing an Apostille, that the signatory is a Notary, or is a Solicitor, or is a Judge, or a Doctor, or a University Vice-Chancellor, etc etc, as the case may be. It is not the job of the FCO to read the paperwork and advise the client that because a Dentist, or a Solicitor, has acted as witness therefore the foreign jurisdiction is not being given the authentication it requires. Indeed it is not the job of the Foreign Office to read the paperwork at all.

It therefore happens very often that, say, a Power of Attorney for use in France is executed in England before a Solicitor who is not a Notary and the Apostille is added and the document is returned to France for use. Usually its failure to comply with the internationally agreed conventions is noticed at some late stage causing expensive delay. Sometimes the irregularity is not noticed at all and the transaction is “completed” - the money is paid and the new “owner” moves in. In such a case there may be no end to the legal actions and cost and distress which might arise when the mistake is eventually noted.

Because the paperwork has not been completed correctly may mean in the worst case that title to the property has not passed to the Buyer, As one example, consider the case of a Seller going bankrupt after completing the sale and spending the money. The creditor having inspected the sale paperwork discovers that it was not notarised as required by the law, and will raise claims against the Buyer,(that they are not in fact the owner because the paper title is defective and so they should turn the property over to the creditors), against the Foreign Notary and against the English Solicitor.

The fact of the matter is, that if you are in the position of entering into any documentation for use abroad and which you need to sign in England, then you must protect yourself by having your signatures Notarised. Only a Notary Public can do this in England.

Even though your foreign lawyer may well tell you that the only important thing is the Apostille and that you can obtain this by any means, including having your papers dealt with by a non-Notary Solicitor in England, this is simply not the case.

In these circumstances unless you use a Notary, who is the proper legal Officer for the job (and who carries the necessary insurance to protect you) you place your transaction and your wealth at serious risk

It continues to amaze Lawyers – Notaries and Solicitors alike – how many otherwise sensible adults have not prepared their Wills. If you do not make your Will, then you will:-

1 Make your Estate liable for payment of Inheritance Tax at the highest possible rate in respect of its value. That is to say, you will have failed to maximise possible tax relief.

2 Make your money go to people you would not have wanted to receive it. If you have a spouse and children and if you own more than £250,000 on death, did you know that your spouse will NOT receive the whole of your estate? If you die with assets of £2 million, do you really want your spouse to receive £250,000.00 only and the rest go to the kids? If you have a spouse and no children, do you want over £1.5million to go to your nephew? Think about it – if you have £2million how much of that is tied up in the value of the house. So if the consequences of the intestacy are that an immediate £775,000.00 has to be paid out to the nephew, how can that be done unless the house is sold and then where is your spouse going to live? It doesn’t matter that you can hardly believe it – this is what can happen. It doesn’t just happen once in a blue moon either – according to the figures stated by SAGA, in UK last year over 4000 houses were sold because someone had died without a Will. The sad sad reality - In one sudden shock, someone has been widowed and forced to move to a much smaller house and leave the home behind with all their memories.

3. Risk causing a rift between your loved ones that might never be repaired. The glib assumption is that families fall out over inheritances because they are greedy. In my experience that is usually not the case. What happens when someone dies, especially in the case of sudden death, is that the friends and family have to deal with the situation in a state of shock. Often people feel a sense of guilt, however irrationally. This can come to the surface as a wish to ensure that your wishes are respected. At an early stage in a fight about inheritance all parties are likely to say to each other “I KNOW WHAT S/HE WOULD HAVE WANTED”. The trouble is, that A is convinced you WOULD HAVE WANTED something which is exactly the opposite of what B believes you WOULD HAVE WANTED. It is too late to ask you, you didn’t make a Will! So the fight goes on, the value of the Estate gets wasted on Lawyer’s fees and no-one ever does get to find out what you would have wanted.

4. Risk your foreign-owned Property passing under compulsory Inheritance rules applicable in the Foreign Country which are very different to the UK intestacy rules and which devolve your Property there in a way you do not want and which could have been avoided if you had made a Will.

There are more reasons but surely those four make the case? Perhaps I can add a fifth one - failing to make a Will does not ensure that you will live longer, not even by a day.

In the headline I say – Make your Will(s) – more than one? Obviously if you make a Will in respect of “all of my assets wheresoever in the World” then you cannot make another one without revoking the first one at least partially. What I am referring to, is my advice that if you have Property (whether money or interests in Land) in more than one Country, you should make a separate Will in respect of your assets, one Will for each country.

Doing so will give you the opportunity to maximise tax relief in respect of the laws of the Countries concerned. You should also take advice as to where the Wills should be made. A UK citizen domiciled in UK with assets in Spain, for example, can make a Will in UK in respect of assets here, and a Will in Spain (or a Spanish Will executed in England before a Notary Public here) for the Spanish assets. However if the UK citizen is domiciled in Spain, the Spanish courts may take the view that a UK will cannot be validly made at all. It is complicated and specialist advice is essential.

Finally, you should not seek to save a few bob by making your own Will. Just don’t. I have seen a great many home made Wills in my career. I think that every single one of them had defects. If a million monkeys type for a million years, they might type the works of Shakespeare it is said. I think they would more likely do that, than type a valid Will. And then they might get the wrong person to witness it!

Please, decide today that you will make your Will. Tomorrow, sadly for us humans, might be too late.

Even though I am no longer a solicitor and now practice as a Notary Public alone which means that I no longer deal with Conveyancing work, I feel that I should add my hurrahs to the scrapping of HIPS last week. In my thirty five years experience as a Conveyancing Lawyer, I have no doubt that the HIPS episode was the single most fatuous waste of time and money imposed upon the house buying system by Government.

As long ago as the early 1990s the Law Society first experimented with the idea that the sales of properties would be speeded up if the Seller and not the Buyer carried out the initial “searches” on the property. Searches are a set of questions asked of the Land Registry, the Local Authority, the Water Authority and the Coal Authority and they used to take many weeks to obtain. The thinking was that if the Sellers got them all ready, those weeks of delay would be avoided. In the 1990s of course there were not the computer networks we have today. Today the searches can usually be obtained electronically in a couple of days. This of course means that the getting of searches is not a source of delay in any case.

The problem, then as now, is that if a Seller waits until there is a Buyer before paying for the searches, then no time is saved. On the other hand if the Seller buys his searches before he has a Buyer, then the search results will get old and become unacceptable to the Buyers’ mortgage lender after a short time – certainly after three months they will have to be paid for all over again. And if no Buyer comes forward at all of course the money will be wasted. In the 1990s the Law Society swiftly learned this somewhat obvious lesson, and changed the National Conveyancing Protocol so that the job of making the searches reverted to the buyer.

Naturally the outgoing Government shut its eyes to the lesson of history, and made this money-wasting exercise a legal requirement – wilfully ignoring the consultation responses of the experts in favour of political pig headedness. The truly galling thing for a Seller, having bought a HIP, is that sensible Buyers all continued to instruct their solicitors to carry out their own searches. Almost unbelievably to the outgoing Government, (but predictably enough to all Conveyancing Solicitors), I was hardly ever asked to show the expensive HIP to a Buyer or his solicitor - they simply weren’t interested.

Goodbye HIPs – and good riddance.

If you are wishing to travel overseas with a child but cannot travel with BOTH parents, you should be very careful to take with you several properly Notarised forms of consent.

Because this has been the requirement for several years in most parts of the world including the USA, this is a problem which seems to cause trouble for British people more than for others.

Travel agents are increasingly aware of the situation but still people are getting caught out.

Typically the problem arises when a child is taken on holiday by grandparents; but it also happens when one parent only travels with a child, for whatever reason. The assumption is, “We have our passports – the child has a passport – what is the problem?”

Actually, The problem is – that you might travel thousands of miles, and get turned back at the border!

Foreign Governments do not wish to be seen to have assisted in child abduction of any kind whether by parents or by anyone. So when a child travels without both parents, there is the possibility that the journey is unknown to the non-travelling parent - who would not have given consent.

Too many people pass though the airports for any country to be certain that there is no court order in force  prohibiting travel – so the safest answer for immigration authorities often is – No consent – No entry.

The lack of the notarised form can also give rise to difficulty in the event that the child becomes ill or has an accident. A Hospital for example might not operate on a child unless both parents are present to consent, or have previously signed a notarial form to say that the grandparents who are travelling with the child can make those decisions.

Many countries publish the text of the required letter of consent on the websites of their border control agencies and several others do not. If there is no specified text then I can draft a suitable wording for you of course.

Also do note that, for many jurisdictions, the consent document once notarised should be further “legalised” or “Authenticated” with either the Foreign Office Apostille or the Consular stamp of the Country concerned - or sometimes both of those. See my previous blog called “Glossary” for a more detailed explanation.

Be aware also that it is not only, or even mainly, national governments and immigration agencies which are requiring such consents. Increasingly individual airlines will apply their own rules. For this reason I would recommend that when you make the forms of consent, you obtain several originals at the same time.

It is not unknown, and it is usual in Brazil in particular, for an airline to require a letter on an internal flight in spite of the fact that such a form was previously provided when entry to Brazil was first made. Again, a further form may be demanded when you leave.

On a more trivial level I have seen cruise ships require that the responsible adult has the permission of the parent to agree to the child using the swimming pool, or trampoline, or making visits in the ports to which the  ship travels.

I have recently seen in UK newspapers travel advice to the effect that “A notarised consent will be needed, so go and see your solicitor now” Well if you get your spectacles prescribed by your greengrocer, fair enough – otherwise please remember - Some Notaries are also Solicitors, but very few Solicitors are also Notaries.

Outside of the British Isles, the role of a solicitor is extremely limited, and it is the certificate of a NOTARY PUBLIC which will be required from you.

As with any profession, the world of the Notary is full of terms and phrases which are commonplace within it, but which are never used and rarely understood outside it. I hope that it might be helpful for me to explain a few of them. This is only a short list of some usual examples. Please do email me if you have heard from your overseas lawyers with others which are unclear to you - I shall reply to you with an explanation and also include them in future blogs.

Notarise / Add your stamp

These are often the expressions used at a first meeting with a Notary. A prospective client might call me to say that their lawyer abroad needs the paperwork to be taken to a Notary in England for me to “notarise it “ or to “add my stamp”.

Sometimes the client is under the impression that a Notary will stamp any piece of paper whatever is written on it - and that the process should therefore take a minute or so, if that - and the fees should reflect a complete lack of care over a very short time! In fact there is no way that I or any Notary will add a Notarial stamp to a document just because it is put under my nose. If Notaries behaved like that there would be no point in the procedure.

The Notary’s seal of Office (the “stamp”) is not in fact a procedure in itself –the stamp is merely applied to identify the Notary who has made it. It is the certificate which is relied upon abroad, not the stamp. That is to say, I need to write on the paper exactly what truth I am warranting. To do this, I need to investigate the truth, even if it is nothing more than to identify you as the person who has signed a document.

Certify
As explained above, I will not add my stamp to paper unless I am making a certificate – that is, explaining in writing what I am saying about the paper.

Imagine an example - you have a particular qualification – an exam pass, a University degree, a registration as a Doctor with the British Medical Council – and you are applying for a post abroad. Your new prospective employers will want to know that your qualification is genuine and may ask you to get the degree or other certificate “certified” by a Notary.

If you come to me for my stamp to be added, I have explained above that I will not do so without at least taking evidence of your identity. But if I merely stamp it and you then send it off to your new employers, what will they understand my stamp to mean? It might mean only that I have seen you and checked who you are (and so have no idea whether your degree is in fact genuine). It might mean, I have seen you and contacted your university and checked that the degree certificate is genuine. So clearly, I need to set out in writing exactly what my certificate is saying.

I might write “This paper was produced to me today by AB whose identity s/he has proved to me and I have NOT verified that this paper is genuine”. This will be adequate, if the future employer is going to check for themselves with your University – as would be the case with most hospitals abroad in respect of applicants for medical positions. but it would obviously be useless if the employer is relying on me to tell them whether you have a degree. Then I would have to make the necessary checks and write “This paper was produced to me today by AB whose identity s/he has proved to me and I have today verified with the issuing University that this paper is genuine”.

The fact is that a Notary’s “Certification” is not one fixed thing. It is very important to quiz the foreign jurisdiction who say to you “get a Notary to certify your papers” and find out from them EXACTLY what they mean.

Do I have to check they are true or just identify you? Do they require me place my certificate upon the original papers? – which can be very worrying for you if they are irreplaceable – or is it allowed to make the required certificate upon photocopies?

Please remember that when you are told that you need my Certificate, you are being asked for something very specific even though the language used may be extremely vague. The party abroad might mean any one of an almost unlimited number of things and I, as the Notary in England, need to be told of their exact requirements. Since it would be a waste of money to obtain the wrong certificate, it is very important to know what exactly is needed, before we start. Accordingly if you are not certain what is needed you might choose to put me in touch direct with the Foreign Lawyers before our meeting. Whilst this would add to my fees, the expense of preparing an inadequate document and later needing to start all over again would be far greater.

Acknowledge/Witness
Often a foreign lawyer will send a document to England with the requirement that it should be witnessed before a Notary. The word “witness” is generally understood in England – if a Policeman asks for witnesses it would be unusual for someone to come forward to say that although he did not see the incident, he would like to be a witness. We understand – to witness something is to see it happen. Yet plain English seems to vanish time and time again, when the word “witness” is used in connection with a foreign document. I have lost count of the times that I see a client who wants me to witness his paper – but when we meet he produces it already signed by himself (and often by his partner also who has not even attended the meeting) and asks me to sign as witness!

If I do not see you sign, I cannot witness you sign. Of course this is obvious when it is spelt out but nevertheless this is a point which is very often missed in the urgency of meeting deadlines.

Very occasionally, the foreign lawyer requires the document to be “acknowledged” by a Notary and not “witnessed” at all. In this case, instead of writing “Signed in my Presence today by AB” I can write “The signature above was today acknowledged to me by AB” – or sometimes the acknowledgement to me might be by another person who was witness to the original signing.

Many North American States (USA) will admit this procedure, but most other countries of the world will not.

Legalise/Further Legalise/Authenticate
Once I have made my certificate, even then the job is not necessarily over. For many countries, nothing further is required. These include Australia and most of the States of the USA and Canada and the Caribbean countries.

The rest of the world is rather more cautious and it seems to me, with good reason. In this day and age identity theft and fraud is increasing. No doubt there are some criminals capable of preparing a document which looks impressively stamped and sealed - so the difficulty for recipients thousands of miles is to distinguish the document which is really sealed by a Notary from one which is not.

Accordingly, most countries need to see evidence on the document that the Notary is genuine. This is what your foreign lawyers mean, if they ask you to ensure that I get the papers “Legalised” or ”Authenticated”

Apostille/Obtain the Consular Stamp
Before 1961, this further step of legalisation/authentication was dealt with by sending the paper to the Consular office in England of the Country concerned. There must be hundreds of Consular Offices in England. Each has a different address, a different fee (ranging at present from about £3.00 to £400.00 or more for each document), different time scales (a day or so, to several weeks) and different procedures (send a stamped envelope, send a postal order but not a cheque, attend in person at the counter etc). Each one of these Consulates of course can only certify that the paper had been issued me, a Notary, if they have previously recorded full details of my qualification and my signature and seal and updated them regularly. The Consular legalisation system can be a major chore for the Notary, requiring annual registration with all the Consulates, and it is a headache for the Consulates themselves; they must keep details of all of the Notaries, and deal with all the postal and personal attendances for Consular stamps.

Accordingly the International Conference of the Hague in 1961 took place in order to set up a procedure by which different Countries could elect to abandon the Consular authentication procedure and use the system of the “Apostille”. This means that where say a document for Spain was signed in another Country (“C”) then the Notary in C should send the paper not to the Spanish Consulate in C, but to the Foreign Office of C. So, if you sign any document for use in Spain before me in England, I no longer need to send it on to the Spanish Consulate. Instead I send it for the Apostille stamp to the British Foreign Office.

If every country in the world signed up to the Hague convention, an English Notary would only need to register with the Foreign Office for all authentication.

Life is not so accommodating of course, and therefore at present the requirements of different counties may be any one of
• No further legalisation – including USA, Canada, Caribbean (except the Dominican Republic)
• Consular Legalisation – including Brazil
• Apostille / Foreign Office Legalisation – including most of Europe and Asia
• Both of them! Foreign Office and then Consular legalisation – including China, UAE, Turkey, Dominican Republic
In addition some countries will require that my Certificate should be interpreted by a qualified interpreter before submission for further legalisation

Notary Certificate in Public Form/in Private form
These alternative types of document are European in origin – particularly they are found in Spain. In Spain there is no direct equivalent of the English document called a “Deed”.

An English Deed is made in accordance with the Statutory definitions of a Deed. It must be Signed and Delivered as a Deed and the signature must be by an adult of sufficient mental capacity and in the presence of another adult as witness, who then countersigns. The significance of a Deed is that it is binding on the person who signs it even if no consideration (money or moneys-worth) has been received. This would not be true of a signed promise made without any witness and given for no consideration .

The two documents – the Public form and the Private form - used in Spain do not have the same distinction with relation to consideration. The physical difference lies in the lay out – a private form document follows the style of an English Deed or contract whilst a Public form deed is written in the form of a Proclamation by the Notary. In respect of the latter because it is the Notary’s documented record of what took place and is also a statement of the legal implications of the document, the liability of the Notary is extended beyond the scope of the private form.

In respect of the private form the English Notary may often be warranting nothing more than the identity of the signatory. In the Public Form he is responsible for all aspects of the document and its consequences both for the signatory and for all who rely upon it.

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.

The detailed information below is provided by a lawyer practicing in Spain - Mr Raymundo Larrian Nesbitt. You can find out more about him and read his own article if you follow the link I have placed in the “Links” section of my main website.

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.

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?

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.