Friday Completion: A Video-Linked Director and a Portuguese Power of Attorney
An Irish notary is asked to attend the execution of a deed of transfer of registered land in Dublin. The transferor is an Irish private company limited by shares with two directors; one director is in Australia and proposes to sign by video link, the other will sign in the notary's office. The transferee is an individual buying with a mortgage. Title is registered; the vendor's solicitor holds a power of attorney granted in 2019 by an elderly shareholder in Portugal, in Portuguese, with no apostille; the solicitor says it was 'witnessed by a notary in Lisbon' and asks the Irish notary to 'certify the whole thing is in order' so the transaction can close on Friday.
1. How may the company validly execute the deed, and what difficulty does the director in Australia create?
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Execution by an Irish company is governed by s.43 of the Companies Act 2014. A company may execute a document by affixing its seal, if the articles permit, attested by a director and the secretary or two directors, or by signature of a director countersigned by the secretary or another director. Two directors signing is sufficient. Irish law does not require a notary; his involvement is for the benefit of the transferee, the lender or a registry.
The video-linked director is the difficulty. Witnessing and notarial attestation require physical presence: the notary can only certify that a signature was affixed in his presence, and a signature on a screen in Sydney is not in his presence. Options:
- the Australian director signs before an Australian notary, whose act is apostilled, with the authenticated signatures assembled - but the countersignature requirement must still be satisfied in a form the registry accepts;
- the company re-executes using its seal, attested by the two persons physically available;
- execution is deferred or the director travels.
The notary should also record the date of delivery, since a deed takes effect on delivery, and confirm the instrument is expressed to be executed as a deed.
2. What must be established about the Portuguese power of attorney before it can support the transfer?
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The power of attorney is a chain of evidence, and every link must hold.
- Authentication. Portugal is a Contracting Party to the 1961 Convention, so the Portuguese notarial act requires an apostille from the Portuguese competent authority. The Lisbon notary's seal alone is not enough for an Irish purchaser or registry. Without an apostille the document must go back; the Irish notary cannot cure the omission.
- Translation. A certified English translation is required. The notary should not translate the instrument himself if he is not competent in Portuguese, and should not certify a translation he cannot verify.
- Substance. Does the power, properly construed, authorise a sale and the execution of a deed of transfer? Is it still in force? Are there restrictions, expiry dates or consent requirements? A statutory declaration from the attorney that the power has not been revoked and that the donor is alive is normal practice.
- Capacity at grant. The Irish notary cannot verify the donor's capacity in Lisbon in 2019; the Portuguese notarial act is presumptive evidence, and he should say that rather than assert capacity himself.
If any link is missing, the correct advice is to postpone completion rather than accept an indemnity from the vendor's solicitor.
3. How should the notary respond to the request to 'certify the whole thing is in order'?
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He must refuse the wording and explain the limits of the office.
A notary certifies identified facts about acts done before him: that a person appeared, was identified, signed in his presence, appeared to understand, or that a copy is a true copy. He does not certify title, the validity of another State's notarial act, the authority of a company officer, the solvency of a party, or that a transaction is in order.
The risk is acute here because an elderly donor's power is being used to sell land and the attorney may benefit. The notary should:
- confine his certificate to what he saw and did;
- decline to opine on the Portuguese instrument beyond recording that it was produced with an apostille and a certified translation;
- consider whether the purchaser or, more importantly, the donor needs independent advice, and whether the donor's interests are represented at all;
- record in writing what he declined to certify and why.
If the purchaser's solicitor needs a title or authority opinion, that is a matter for that solicitor or counsel, not for a notarial certificate.