The Paper Chase

Generally not used in English law – outside the ecclesiastical courts, at least – the public notary is an unavoidable feature of continental codified legal systems a legacy, perhaps, of letting Napoleon Bonaparte loose on your legal system. In Poland the public notary looms large – rather too large – in a number of legal actions and commercial transactions and it is useful to know when so that you may plan accordingly.

Perhaps the most important for most folk is the fact that the transfer of legal title to real estate must be made in the form of a notary deed. It is possible, and indeed quite common, for a preliminary contract for the transfer of real estate to be in a normal written form but if the seller does not enter into the final sale contract the buyer may only claim damages in cash and cannot enforce the sale of the land, as would be the case if the agreement were in the form of a notary deed. The notary is also responsible for collecting any civil law transaction tax due (at 2 per cent unless the transaction is subject to VAT) and for making the application to the land title and mortgages registry.

In the corporate sphere, the articles of association of a limited liability company must also be in the form of a notary deed which means, of course, that any subsequent amendments must also be in the same form. In addition, if you are appointed to the management board of a limited liability company you must provide a specimen signature made before a notary and, if you sell shares in a limited liability company, the date of the sale must also be confirmed also be confirmed by a public notary.

So far, so good. Now, in many cases, it is convenient for a party to be represented before the notary by a person appearing under a power of attorney, for example where the buyer of land is based outside Poland or a foreign company wishes to buy or establish a Polish company. And here is the catch. If the act in Poland requires a notary deed than the power of attorney must also be in the form of a notary deed. This requires an appearance before a notary in Poland or, if a notary outside Poland is used, an apostille (from the appropriate foreign ministry) must be affixed to the power of attorney so that it may be used in Poland. Even once this hoop has been jumped through it is not unknown for the Polish notary to require additional proof that the person granting the power of attorney was duly authorised to do so even where that person has satisfied the foreign notary of his due authority. Hence the chase to gather yet more pieces of paper and apostilles.

From a commercial lawyer’s perspective, the frustration of all this is that the involvement of a notary represents simply additional bureaucracy and costs for the client with little contribution to the content of the documents themselves. The best that may be hoped for is to be dealing with a notary who is sensible rather than obsessively pedantic – and that is where we may help, both in Poland and England.

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