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Power of Attorney
A poder general or general power of attorney is frequently used in Spain. The power comes in a standard form, which lists all of the actions that can be carried out by the holder. These include buying and selling property, handling bank accounts, spending and receiving money, taking out a mortgage or other loan, and just about anything that the person himself can do with his assets.
The form contains a clause declaring that all of these actions shall be taken for the benefit of the granter of the power. This means that, ifyou decide to take the money and run, the granter has a case against you for defrauding him, if he can find you.
There are also other forms of power of attorney, limited to carrying out certain specific actions in the name of the granter, such as signing a contract for the sale of a specified property at a given price, during a given time period, after which the power lapses.
But the general power of attorney is the one most used, simply because situations change and unforeseen complexities arise in any transaction. This can mean that the holder of the power is unable to act because the power does not mention a specific circumstance that has arisen, such as signing at the bank to obtain the money transfer from abroad.
The wide powers of the general power of attorney avoid these
problems. In an international property market, we often find that a seller or a buyer cannot be physically present at the moment of signing a purchase deed at the Spanish Notary, so he gives his lawyer or some other trusted person a general power of attorney to sign for him.
Once the deed is accomplished, the granter then revokes the power of attorney, again at the Notary, and all goes on as before.
You make the poder general at the Spanish Notary. Although it is always a good idea to consult a lawyer before taking any important legal step, it is not necessary. The Notary has the power of attorney forms, probably in his computer, which will print copies for you while the Notary himself retains the original power of attorney
A reminder: you need copies authorised by the Notary in order to use the power of attorney at a bank or in a property sale. The simple copies you can also obtain are for information only.
The only documents necessary are the national identity document or the passport of the maker of the power. He will need the name and identity document or passport details of the holder. The entire operation should not cost much more than €60.
The recipient of the power of attorney does not need to appear at the Notary. The document requires his signature, but he can do this at his own convenience. So the maker of the power can simply post it to the recipient.
Contracts can be simple or complicated.
Contracts can be quite simple if you are paying one lump sum and the property is to be delivered at once, but if you are paying over time there will be a number of further provisions in your contract, relating to the timing and amount of the payments.
The seller might insist on a clause stating that the buyer loses all sums paid out if he fails to keep up the payments, as well as having to vacate the property immediately./
If a buyer who cannot keep up the payments takes his case to court, he will find that the court will almost certainly allow him to receive some of his money back in exchange for vacating the property, which he loses.
What he gets back depends on how many payments the buyer has already made. If he has already paid more than half of the full price, the court will not allow the seller to keep it all.
The penalty clause for failure to keep up with the payments is negotiable and the buyer really needs a Spanish lawyer to make sure this kind of complicated contract is fair to him.
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