Certification of a Power of Attorney

Certification of a power of attorney

In Cyprus a power of attorney is void if the person who signs it is not known to the certifying officer, as George Coucounis explains.

The law in Cyprus provides for the appointment of certifying officers who are entrusted with the duty to certify the signature of a person signing a document such as a power of attorney. The purpose of the law is twofold, the one is to facilitate a person to appoint somebody else in order to act on his behalf at his absence and therefore his signature as "principal" is required to be certified, and the other is to ensure the legality and safety of transactions, especially the ones concerning the transfer and mortgage of immovable property in Cyprus.

At the same time, the ability of the principal to give authority to his representative is also testified through the certifying officer who is entitled to only certify the signature of a person of sound mind. Thus, the certification of the signature of a person signing a power of attorney is a serious act and any shortfall in the observance of the strict provisions of the law by the certifying officer may result the power of attorney and any transaction done with its use to be declared null and void.

Although there is a duty over the certifying officer to certify the signature or the seal of a person, no certifying officer shall certify the signature or the seal of a person unless (a) the signature or seal is affixed to the document in his presence, and (b) the person signing or sealing the document is personally known to the certifying officer, or his identity is attested by two persons personally known to the certifying officer, who shall sign the document as witnesses to the seal or signature of the principal party.

Consequently, when a person signing a document necessary to be certified and he is not known to the certifying officer, the latter must refuse to certify his signature, unless it is attested by two other persons personally known to the certifying officer who will also sign the document as witnesses.

The fact that a person signing the power of attorney is doing so in the presence of the certifying officer, after he shows to the officer his identity card or passport and the officer compares his signature and photograph, is not enough to render the document valid or to allow the certifying officer legitimately to certify the signature of that person. On the contrary, such a power of attorney is not valid and any transfer, mortgage or encumbrance over an immovable property pursuant to the said power of attorney can subsequently be cancelled by the principal.

It becomes evident that private individuals, bank organizations, certifying officers and everybody else must be extremely careful not to put themselves in such a situation.

Particularly, the issue can be seen in the case of foreigners who easily grant a power of attorney without their identity being attested by two other persons personally known to the certifying officer. In such a case, the certifying officer may be held personally liable to pay damages to the principal whose signature he certified without knowing him. He is considered to be in breach of his statutory duty towards the principal, in that he did not ask for the signature to be attested by two other persons known to the officer, thus making the certifying officer responsible for negligence. There is a general feeling that a certifying officer cannot be acquainted with every person whose signature he certifies, but he cannot on the other hand contravene the law by infringing the provisions of article 7 of the Certifying Officers Law, Cap. 39. The law is clear and since both the meaning and the intention of the legislator are unambiguous, there is no room for any other interpretation.

The case law as cited in C.A. 10802, dated 19.2.2003, provides that a signature of a person can be certified by a certifying officer only if the person signing is personally known to the officer and that this requirement has nothing to do with the showing of his identity card. The law refers to a pre-existing personal acquaintance other than the introduction at the time of the signing. If this requirement is not satisfied, the alternative way available is to have two other persons attesting the identity of the person signing, who must be personally known to the officer and sign as witnesses.

The importance of a proper certification of a power of attorney by a certifying officer can be seen in the judgement issued on 31.7.2008 by the President of the District Court of Paphos in a civil case whereby the certification of a power of attorney was questioned. The Court established that the certifying officer did not follow the requirements of article 7 of Cap. 39 since he certified the signature of a person unknown to him on a special power of attorney without following the alternative way available. The Court did not accept the version of the person who signed the power of attorney claiming that when he was signing, he was under emotional distress and under undue influence exercised by his relatives who forced him to transfer to them his two properties. However, it concluded that the special power of attorney by virtue of which the two properties were transferred by way of a gift was void and ordered the cancellation of their transfer. That person, pursuant to the Court's findings, after he had transferred the properties to the name of his sister by way of a gift, he changed his mind for personal reasons which he did not disclose to the Court and he sought to subsequently cancel the transfer. He finally succeeded on the basis that the power of attorney was void due to shortfalls during the certification.

When a power of attorney is accepted by the Land Registry, this does not imply that the transfer or even the mortgage of an immovable property is valid, since it is not in a position to identify whether the person granting the power of attorney was personally known to the certifying officer. The transaction depends on the subsequent behaviour of the principal party, whether he will accept or question it. The certifying officers ought to follow accurately the law at all times for both the protection of themselves and of the transactions.