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Applicability of powers of attorneys certified by foreign notaries for real estate registration actions

DATE: December 16, 2022 | AUTHOR: AT

The lawyers of the AT Law Firm became aware of the change of the position of the Federal Service of State Registration, Cadastre and Cartography of the Russian Federation (“Rosreestr“) on the applicability of powers of attorneys for registration actions with regards to real estate (“Power of Attorney“) certified by foreign notaries.

As established by paragraph 1 of Art. 185.1 of Russian Civil Code and paragraph 4 of Art. 15 of the Federal Law of July 13, 2015 No. 218-FZ “On State Registration of Real Estate”, the Powers of Attorneys are subject to certification by a notary.

Previously for a rather long period of time Rosreestr has been accepting Powers of Attorneys certified by foreign notaries, if such Powers of Attorneys have been apostilled, the Powers of Attorneys together with the apostille have been translated and the translation has been certified by Russian notary.

However, since autumn of 2022, Rosreestr has been suspending registration actions numerous times, if applications to Rosreestr were submitted by a representative under the Power of Attorney certified, inter alia, by notaries in Cyprus and Switzerland (with an apostille and translation). Rosreestr claims that foreign notaries confirm only the authenticity of signature by certifying the power of attorney, but do not certify the issuance of the power of attorney as a transaction, which is stated on stamps made by such foreign notaries. Rosreestr also notes that it cannot verify whether such Powers of Attorney have been revoked.

The above statements of Rosreestr have not been published, but they are repeatedly given in Rosreestr’s notices on the suspension of registration. A similar position is currently shared by some of the notaries in Moscow.

We believe that Rosreestr can also suspend registration if the authority of a signatory to the agreement (transaction) subject to registration is also based on a power of attorney certified by a foreign notary.

Considering the above, we recommend certifying powers of attorneys for submission of applications to Rosreestr or conclusion of real estate transactions (if the transaction or rights under them are subject to registration) either with a Russian notary or at a Russian consulate abroad.

If it is not possible to certify such powers of attorneys by a Russian notary or at Russian consulate, we believe it will be better to take into account the risk of suspension of registration and provide for respective provisions in transaction documents.

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