Can a property be sold under a general notarial power of attorney?

What the power of attorney must say

The “Código Civil de Cataluña”, the Catalan Civil Code, says that a person acting on someone else's instructions can only carry out acts of ordinary administration, unless expressly authorised to carry out others. Selling a property is not ordinary administration. That is why the power of attorney must be read carefully:

• If it merely confers general powers to manage or administer, it cannot be used to sell.
• If it expressly confers the power to sell properties, or to dispose of them, which means transferring them to someone else, it can be used even if it does not name the flat. In 2019 the “Tribunal Supremo”, Spain's Supreme Court, sitting in plenary session, held that it is enough for the powers to refer in general to the assets of the person granting the power of attorney.
• If the attorney wants to buy the flat personally, the power of attorney must expressly authorise this, unless it sets out the terms of the sale in such detail that there is no risk of detriment.

In most of the rest of Spain the result is the same, because the Spanish Civil Code (“Código civil”) also requires an express power to sell.

What the notary checks

• The attorney must bring the authorised copy of the power of attorney (“copia autorizada”), the one the notary issues with his or her signature. Neither a photocopy nor a plain copy (“copia simple”), which is for information only, will do.
• The notary handling the sale reviews the power of attorney, records it in the deed and declares, on his or her own responsibility, that the powers are sufficient for that sale. If they are not, the notary will not authorise the deed.
• If the flat is the family home of the person granting the power of attorney, the consent of that person's spouse or stable partner (in a “pareja estable”, the Catalan stable partnership) is also required, even if the flat belongs to that person alone.
• If the power of attorney was granted before a foreign notary, it normally needs an apostille, a certificate that the notary's signature and seal are genuine. If it is not in Spanish or Catalan, it also needs a translation. A power of attorney signed at a Spanish consulate does not need an apostille.

If the power of attorney is not sufficient and a private contract of sale is signed nonetheless, in principle the person who granted the power is not bound, unless they later approve it, which is called ratifying it.

When the sale may not be valid

A sufficient power of attorney does not cover everything. The Supreme Court accepts that the courts may set the sale aside if the attorney abused the power against the person who granted it and the buyer knew or ought to have known this. In the case it decided, a son had used his mother's power of attorney to grant, as security for a loan of his own, the right to buy her home for less than half of what it was worth. As those who received that right had not acted in good faith, it was confirmed that the transaction was not valid. Two practical tips follow from this:

• Buyers would be wise to be wary of a price far below market value or of a payment that does not go into an account belonging to the seller.
• Anyone granting a power of attorney for a specific sale can set a minimum price in it and require the money to be paid into an account of their own.