If The Notary Himself Doesn’t Understand the Language of the Document Requiring Legalization, He Must Have It Translated First

This disciplinary complaint was filed by a Spanish complainant who had been married to a Dutch husband who got her into some serious trouble at the notary’s office.

In 2011, they were living in Spain and co-owners of a condominium. They seemed to be in the process of selling it because by mid-2011 a real estate agent sent a purchase agreement with their signatures on it to a Dutch notary.

By September 2011, the husband signed a “power of attorney for real property” in which the complainant seemed to have authorized him to instruct the notary’s office to execute the transfer deed to close the transaction. The power of attorney allegedly was based on a power of attorney written by a notary in Spain earlier that year. The husband, not the wife, sent the Spanish power of attorney to the Dutch notary’s office. A copy of that power of attorney was stamped and signed as a “true copy” by the Dutch notary’s fellow notary (who doesn’t speak Spanish).

In October 2011 the Dutch notary—in the absence of the wife—executed the deed transferring ownership of the couple’s condominium. By mid-2012 the notary sent the following letter to her husband stating that the notary had executed the deed in October 2011 in which the husband authorized on his own and on his spouse’s behalf the transfer of ownership of the couple’s condominium. At the time the husband had stated that his spouse had granted him a power of attorney to sign the transfer deed on her behalf. “However, your spouse states that she never granted you a power of attorney to alienate the property. This means that title to the property has not been transferred and that you were not entitled to receive payment of the purchase price.” Accordingly, the notary requests reimbursement of the unduly paid € 270,001.67 and to contact him to solve the problem.

In the ensuing talks with her attorney the notary apologizes for failing to properly verify the power of attorney and for being too quick to believe the husband. He admits, among other things, that he had received the power of attorney from the husband, not the wife, that neither him or his fellow notary obtained a translation of the power of attorney, that they also failed to verify the wife’s signature on the power of attorney and, more importantly, that the wife was not even present during execution of the transfer deed.

In this disciplinary proceeding the Board of Ethics found that the power of attorney written in the Spanish language didn’t include any authorization to sell the condominium. The notary admitted at the hearing that he had failed to obtain a translation, believing that his coworker, a fellow notary, had verified the power of attorney to sell. However, his coworker had only made a certified copy of the power of attorney, that is, his fellow notary had made a copy of the original certifying that the copy was identical to the original. Regardless, the first notary should have verified the text of the power of attorney. If he himself didn’t understand the Spanish language—the Board of Ethics has no evidence that the notary did understand Spanish—he should have obtained a translation of the power of attorney in order to check what it says. Apart from that, he didn’t seem to have verified the complainant’s signature in the purchase agreement either. Further, the notary didn’t send the correspondence addressed to the complainant to her directly but to someone else. Therefore, the Board of Ethics found that the notary in fact had breached his duty of due care. For these reasons, the Board of Ethics finds for the complainant.

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