Effectiveness in Spain of powers of attorney granted abroad by foreign companies: sufficiency and equivalence judgements

The DGSJFP has clarified that the sufficiency and equivalence judgements are the responsibility of the authorising notary in Spain. However, the judgement of equivalence does not require a specific formula and does not have to be carried out independently if the sufficiency of the power of attorney has already been confirmed. In this sense, for a foreign power of attorney to be considered sufficient in the context of Spanish law, it must also be equivalent to a Spanish public document.

The DGSJFP, by resolution of 25 September 2024, analysed the case of a transfer of mortgage guarantees registered in a Spanish Land Registry, in which the effectiveness of a power of attorney granted in Ireland by a foreign company was raised. The Spanish notary authorising the transfer deed stated that he had seen the special power of attorney, drawn up in Spanish and English, and stated that the document, duly apostilled, conferred sufficient powers on the attorney-in-fact to acquire loans and mortgage credits, thus giving a favourable opinion on the sufficiency of the power of attorney.

However, the land registrar suspended the registration for two reasons. Firstly, he considered the notary’s assessment of the sufficiency of the power of attorney to be incomplete, as it did not specify who had granted the power of attorney, whether the power of attorney was valid and whether he had the authority to grant the power of attorney. Secondly, the registrar indicated that a judgement of equivalence had not been made either, i.e. it had not been stated that the foreign document submitted had the necessary elements to make it equivalent to a Spanish public document.

Pursuant to Article 10.11 of the Civil Code, the law applicable to representation in this type of case is Spanish law. Therefore, for a power of attorney granted by a foreign company to be effective in Spain, it must be recorded in a public document and comply with the requirements established by Spanish law. The sufficiency test, required by Spanish law, means that the notary must check that the attorney-in-fact has adequate powers to carry out the specific legal transaction. This includes verifying the validity and validity of the power of attorney. For its part, the judgement of equivalence refers to the need to assess whether the foreign public document complies with the structural requirements demanded of a Spanish public document, such as the identification of the grantor and the grantor’s capacity to carry out the act of representation.