Obtaining Your NIE for Use in Spain – As You Were!

NIE U-Turn In Spain

All English Residents who buy or sell real property in Spain, need to have a card called NIE – ” NIE (Número de Identidad/Identificación de Extranjero)” – an identity card for Foreigners

It used to be until July 2011 that this card could be obtained for you in Spain, in your absence, by your lawyer or Estate Agents. The procedure was that you obtained a certified copy of your passport from a Notary Public in England, in your City convenient for you,  and at the same time executed a Power of Attorney (“Poder”) in favour of your Spanish Representative.

This then enabled that Representative in Spain to attend at the NIE issuing office which is usually a local Police Station and they could obtain the NIE registration documentation on your behalf.

This all changed in 2009 when a new Spanish rule was made to come into effect in July 2011.

Article 206 – full name being :  “Real Decreto557/2011, de 20 de abril, por el que se aprueba el Reglamento de la Ley Orgánica4/2000, sobre derechos y libertades de los extranjeros en España y suintegración social, tras su reforma por Ley Orgánica 2/2009. Artículo 206. Número de identidad de extranjero.” said in effect that “the foreigner citizen will have to apply personally before the Spanish Police or through the Spanish Consulate. It will be also applicable to the petition of non-residence/residence certificates. ”

As it happened, many Police Station in Spain paid scant regard to the new rule in any event, but it now appears that Article 206 has been revoked.

So once again the old procedure can be followed, and you do not have to travel to Spain, or to a Spanish Consulate, but only as far as your nearest Notary Public.

The authority for this U-Turn is I understand an Instruction issued by the Spanish Commissioner General of Immigration and Borders – to the establishment of a unity of purpose together with the Directorate General of Immigration, Ministry of Employment and Social Security as to the broad interpretation of Article 206 3 content of Royal Decree 55712011, from April 20 2012 is set   “In proceedings of NIE allocation request because of economic, professional or social provisions of Article 206.3 of Royal Decree 557/2011 of 20 April, Police Stations will accept the filing of the NIE in Spain personally or through representative”

If I can paraphrase this, it seems that the Royal Decree has been found to be inconvenient and counter-productive and has been abandoned by those required to implement it. How jolly pragmatic.

By the way, it has been reported that whilst this notice is displayed in most Police stations in Spain,  many staff employed there are as yet unaware of it!

May 18 2012

Understand the Jargon – Words that Notaries use.

A brief glossary of terms used by Notaries

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 by Apostille” or “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.

UK Becoming more Corrupt? – Everyone seems to think so

I am obliged to Neill Blundell, a Partner in the national firm of Solicitors Eversheds, for this information

The 2010 Transparency International Corruption Perception Index was published on 26 October 2010

This survey is considered to be the world’s most credible measure of of corruption in the public sector. It is calculated using data from analysis by country experts and business leaders, including sources such as the Economist Intelligence Unit, the World Bank and the World Economic Forum.

The countries deemed to be least corrupt are Denmark, New Zealand and Singapore, while the most corrupt include Afghanistan, Burma and Somalia.

The UK’s score has dropped and it is now at 20th place, down from 11th four years ago.

The scores of the Czech Republic, Greece, Hungary, Italy, Madagascar, Niger and the United States have also all gone down.

Chandrashekhar Krishnan, executive director of Transparency International UK, said: “This is the leading global index of corruption, and the UK is now seriously at risk of dropping out of the top 20.” Krishnan added that Britain’s worsening performance in the league table “strengthens the case for the UK’s new bribery act to be properly enforced, and sends a warning signal to the government that there should be no dilution of the bribery act or further delay in its commencement”.

See http://www.transparency.org/policy_research/surveys_indices/cpi/2010/results  to view the survey results.

For more information, please contact: Neill Blundell Partner, Head of Fraud Tel: 0845 497 4533 neillblundell@eversheds.com

Notice of Understanding and Intent and Claim of Right

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 to an end http://www.albertacourts.ab.ca/jdb/2003-/ca/civil/2009/2009abca0201.pdf

Legalisation of documents for THE DOMINICAN REPUBLIC.

Legalisation of documents for THE DOMINICAN REPUBLIC.

Simplification makes it more expensive!

Until 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 – one step forward, two steps back.

One step forward – The 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.

DOCUMENTS FOR USE IN INDIA – 2011 UPDATE

DOCUMENTS FOR USE IN INDIA – 2011 UPDATE

Since my most recent blog on this subject in December 2010, there has been a further development.

You will recall that the problem is that in areas of India and particularly in the Punjab, lawyers and other Authorities are requiring that Deeds and papers created in England for use in India should be notarised, legalised with the Foreign and Commonwealth Office and then further legalised at the Indian High Commission in London or Birmingham. The third step is in fact unnecessary as a matter of International Law.

Representations have been made by the Commissioners of the Hague Convention to the Federal Government of India. This has now resulted in a directive which can be read on the website of the Punjab Government at http://punjabrevenue.nic.in/stamp5-8-2010.pdf

In a nutshell, the guidance regulation confirms to all Punjab lawyers and Authorities, that NO FURTHER LEGALISATION IS REQUIRED, once the notarised paper bears the Apostille of the Foreign and Commonwealth Office.

This is very good news, although I suspect that it may be some considerable time before this is clearly understood and implemented throughout the Punjab.

Enduring Powers of Attorney – Lasting Powers of Attorney

In England, the only Power of Attorney you can make which will remain in effect should you lose mental capacity, is a “Lasting Power of Attorney”.

It is too late to make a Will once you have died, and similarly it is too late to make a Lasting Power once you actually need one.

I think that every adult person in UK should have in place both a Will, and a Lasting Power of Attorney. Please do contact me to discuss this.

But the point I want to raise in this blog, is to look at the question from a Notary’s point of view, that is to say, internationally. In most Countries of the World the concept of a Lasting or Enduring Power of Attorney (one which remains in force even after the writer has lost mental capability) is understood and such a Power can be created validly.

The possible problem derives from the fact that each Country has its own rules, and so a Power created and valid in one Country is, more likely than not, UNACCEPTABLE in another Country.

The obvious difficulty is that if, as an example, your widowed father or mother or single Aunt has retired to Spain or South Africa or anywhere else then, if you are the nearest relative, you might have agreed to be their “Lasting Attorney”. That is, the person which will manage their affairs and look after them if they shoud lose their mental capacity to do so for themselves

If they have made a local Enduring power, they may not have provided for the likelihood that you will wish to look after them here in UK, once they need looking after. Unless you are willing to give up your job and move abroad to be their carer, that is.

BUT – once they arrive here in UK the foreign-made Power of Attorney in your favour may no longer be effective.   It may be possible to persuade the UK Court of Protection (the Guardianship Office) to abide by the terms of the foreign made document but this will be difficult and time consuming and of course expensive.

The Moral for all of us is – Make a lasting Power valid to be used in the Country you live in and Make Another One at the same time, valid for any country to which your Attorney may wish to move you in the event that you lose legal capacity and need permanent care.