HOW TO ISSUE POWER OF ATTORNEY FROM ABROAD?
- THE AUTHORITY ISSUING THE POWER OF ATTORNEY
It is necessary to examine the power of attorney issued abroad within the framework of the conditions sought by our legislation by subjecting them to a dual distinction.
a) Power of attorney issued by our Consulates abroad,
b) Power of attorney issued by the authorities of foreign countries authorized to carry out notary operations.
On the other hand, it is necessary to examine the power of attorney issued by the authorities of foreign countries authorized to perform the notary public act in paragraph “b” by subjecting them to a double distinction.
b.1) Power of attorney issued in one of the countries that are party to The Convention of 5 October 1961 Abolishing the Requirement of Legalization for Foreign Public Documents, also known as the Apostille Convention, (La Haye),
b.2) Power of attorney issued in a country that is not a party to The Convention of 5 October 1961 Abolishing the Requirement of Legalization for Foreign Public Documents, also known as the Apostille Convention, (La Haye)
Image 1: Table on the classification of power of attorney issued abroad according to the place and authority in which it is issued
1.1.POWER OF ATTORNEY ISSUED BY OUR CONSULATE
Article 191 of the Notary Law No. 1512 has the provision that “Notary works in foreign countries are handled by consuls”, and a notary public act made by the Turkish Consulate in foreign countries will be valid without seeking the approval of another authority.
Image-2: A sample of the power of attorney issued by our consulates.
Power of attorney issued by our consulates can be checked from the “Notaries Union Power of Attorney Inquiry” screen on TAKBIS as follows:
Image-3: Notaries Union Power of Attorney Inquiry Screen (TAKBİS).
1.2. POWER OF ATTORNEY ISSUED BY THE AUTHORITIES OF FOREIGN COUNTRIES AUTHORIZED TO MAKE NOTARY PROCESS
1.2.1. Power of attorney issued in one of the countries that are party to the Hague Convention on the abolition of the obligation to certify foreign official documents
One of the agreements signed at The Hague International Private Law Conference, the Agreement on the Abolition of the Requirement for Certification of Foreign Official Documents was published in the Official Gazette dated 16.9.198 and numbered 18517 and entered into force on 29.09.1985 for our country.
In article 1 of the contract; Official documents issued in the country of one of the parties and to be used in the country of the other party are counted. In Article 3 of the Convention, it is stated that the only action that may be deemed necessary for the confirmation of the authenticity of the signature, the title of the person signing the document and, if necessary, the same with the seal or the original on this document, consists of placing the apostille defined in Article 4 of the Convention on this document by the competent authority of the state where the document was issued.
In this context, if the power of attorney is issued in one of the parties to the Convention on the Abolition of the Requirement for Certification of Foreign Official Documents (The Hague), it must contain an apostille. The acknowledgment apostille must meet the required conditions.
According to Article 3 and 4 of the contract, the apostille must be prepared in the form of a square with a border of at least nine centimeters in accordance with the sample attached to the contract and must be placed on the document itself or on a piece of paper to be attached to it.
Image-4 : Apostille Sample in accordance with the Convention on the Abolition of the Requirement for Certification of Foreign Official Documents
The apostille content can be written in the official language of the authority issuing it, or it can be written in a second language, but the title of the apostille must be written in French as “Apostille Convention de La Haye Du 5 Octobre 1961”.
Pursuant to article 4 of the contract; The apostille, which is prepared in accordance with the sample attached to the contract, can be placed on the document itself, as in the example given below:
Image-5: Example of Apostille on the Power of Attorney.
As in the examples given below, it is also possible to put the apostille on a piece of paper to be attached to the power of attorney. If the apostille is included in a separate document, the apostille will be combined with the certified document and the seal of the certifying authority will be imprinted at the junction. Here, it should be clearly identifiable that the certification annotation and the document are related to each other.
Image-6: Apostille sample placed on a separate paper and combined
Image-7: Example of Apostille on a Separate Paper and Combined.
1.2.1.1. Non-Special Certificate of Apostille
On the other hand, it is seen that some (apostille) certifications are submitted by the authority issuing the power of attorney with a document in the form of a photocopy attached to the power of attorney.
It is not possible to accept the apostille documents, which are given in general (for example in the form of print) and which cannot be understood (apostille) to the document submitted in this way.
Image-8: Apostille Example in Printed Form
1.2.1.2. Obligation that the Apostille and the Notary Approval in the Power of Attorney must have been made by different persons
With our Circular dated 28.02.2019 and numbered (1796) 2019/2, it should be noted that “…the document and the relevant apostille must have been issued by different authorities. Because, since the signature and seal of the authority issuing the document are certified by the apostille, it is not possible to certify the apostille with the signature and seal on the document to which it relates”.
In addition, if the authorities authorized to issue apostilles of these powers of attorneys are notary publics of that country, it has been seen that the same seal is included both in the power of attorney and in the related apostille, where the authority authorized to issue apostille is controlled from the internet address given above and there is a seal related to that authority. In the event of such a power of attorney, it is possible to take the title deed as a basis. However, it should be noted that in any case, the signatures of the apostille and the issuing authority must be different.
Image-9: Apostille Certificate and Example of Document with Similar Seal
1.2.1.3. E-Apostille
Some countries have started the application of digital signed apostille (e-apostille) and the documents submitted within the scope of this application consist of a pdf-format copy of the power of attorney and an electronically signed annotation (e-apostille). In case the power of attorney submitted is with e-apostille, as in the example given below, first of all, it is necessary to establish a link to the apostille certification and the relevant power of attorney by entering the web site whose address is given on the document, via the QR code, if any. In cases where a link is established between the e-signed apostille and the document, these documents can be taken as a basis for processing.
Image-10: Verification Screen for Electronic Apostille Sample.
In cases where the link between the apostille and the power of attorney to which it is related cannot be established by seeing it directly from the given internet address, it is not possible to take this power of attorneys as a basis for transactions.
Although it can be seen on the internet address given in the example below regarding the document with which date and number of the apostille annotation was issued, it is not possible to accept such power of attorney for title deed transactions, since the power of attorney and annotation of approval (e-apostille) cannot be viewed on the internet address and in this case, a legal connection cannot be established.
Image-11: Verification Screen for Apostille Sample.
1.2.2. Power Of Attorney Issued in A Country That Is Not a Party To The Convention Of 5 October 1961 Abolishing The Requirement Of Legalization For Foreign Public Documents, Also Known As The Apostille Convention, (La Haye)
In accordance with Article 195 of the Notary Law, the signature and seal of the authority issuing the power of attorney must be approved by the Turkish consulate in that place in the power of attorney issued in accordance with the procedure in foreign countries. However, since it is not possible to have the signature and seal of each notary public in our consulates, a dual approval mechanism has been adopted and the authority to which the signature of the issuing notary is attached; The signature and seal of that office must be approved by the Turkish Consulate in that place.
In our Circular numbered 2015/5, in this context, it is stated that “There must be a power of attorney issued by the notary publics of foreign countries in their own language and including the photograph of the relevant person, provided that the signature of the notary public in the power of attorney is approved by the Turkish Consulate in that place and the signature and seal of this authority is approved.”
Here, it should be noted that two-stage certification is sought and what is approved. For example, the signature and seal in the power of attorney issued by a foreign country notary must be certified by the signature and seal of the notary public in that country, and the signature and seal of that office must be approved by our consulate in that place.
Without prejudice to the exceptions arising from the provisions of The Hague Convention, it has been stated that in order for a notary public’s document issued abroad to be used in notary publics in Turkey, the signature and seal of the competent authority of that country must be approved by our consulate in that country in accordance with Article 195 of the Notary Law No. 1512. This procedure is also accepted as a condition for validity for title deed sales.
Image-12: A Power of Attorney Sample Containing Necessary Approvals Issued in One of the Countries Not Party to the Convention on the Abolition of the Requirement for Certification of Foreign Official Documents (The Hague).
It has been observed that some of the proxies submitted to the Land Registry Directorates contain some approvals made by the official authorities of the country where the power of attorney is issued, but these approvals are not the required approvals.
On the other hand, as in the example presented below, in some power of attorneys, it is seen that the stamp signature of the person who made the translation for the power of attorney, not the authority that certifies the signature and seal of the notary public, is approved by the relevant ministry and the signature and seal of that Ministry is certified by our consulate there. It is not possible to take it as a basis for deed transactions:
Image-13: A Power of Attorney Sample That Does Not Contain Necessary Approvals Issued in One of the Countries Not Party to the Convention on the Abolition of the Requirement for Certification of Foreign Official Documents (The Hague)
- THE LANGUAGE OF THE POWER OF THE ATTORNEY
The power of attorney must be in the official language of the country in which it was issued. Information on the official languages of the countries can be found on the official website of the Department of Foreign Affairs. (https://www.tkgm.gov.tr/yabancii-db/ulkelerin-resmi-dilleri) It should not be overlooked that some countries have more than one official language. For example, The Islamic Republic of Pakistan has two official languages, Urdu and English. A power of attorney issued in English will be accepted if it is issued in the Islamic Republic of Pakistan. If this power of attorney is issued in the Islamic Republic of Afghanistan, it will not be taken as a basis for land registry transactions, since English is not among the official languages of Afghanistan and the power of attorney is not issued in Dari or Pashto, which are the official languages of this country.
In addition, it is possible to take into account the notarized Turkish translation of the power of attorney issued in the official language of the country in which it is issued, as well as the Turkish part of the power of attorney, which is issued in Turkish, and can be taken as a basis for the proceedings.
In this context, if the following power of attorney sample is submitted together with its notarized Turkish translation, it can be taken as a basis for title deed transactions.
Image-14: An Example of a Power of Attorney drawn up in the Official Language of the Country It Is Issued and Also in Turkish.
- PHOTOS ON THE POWER OF ATTORNEY
Since it is stated in the ninth part of the Notary Law, titled “Form of Notary Public Transactions”, and in Article 93 of the Notary Law Regulation, that contracts and power of attorneys that require action in the title deed due to their nature, must be arranged with a photograph, the power of attorney should include the photograph of the person giving the power of attorney. On the other hand, in order to understand that the photograph was not affixed afterwards it should be issued with the seal of the authority issuing the power of attorney if any; if there is no seal, it must be certified with a cold stamp, signature or stamp. It is not necessary for the photograph to be affixed to the power of attorney afterwards, but it can also be accepted if it is submitted to the power of attorney in a printed form. In power of attorneys where the photograph is digitally printed on the power of attorney (where the photograph is not affixed afterwards), it must be certified with a seal, stamp or notary signature by depending on the situation, in order to document that the photograph has been seen by the authority issuing the power of attorney. In addition, it is sufficient to include the photograph on any page of the power of attorney, provided that it is in the content of the power of attorney.
In the example given below, it is seen that the photograph affixed to the power of attorney is documented with the stamp of the notary public, and it is possible for this power of attorney to be taken as a basis for the deed transactions if the other required conditions are also met.
Image-15: Sample of Power of Attorney Confirmed with Notary Stamp on the Photograph.
However, in the example below, it is clearly seen that the photograph that is physically attached to the document is not certified with a seal, and it is not possible for this power of attorney to be taken as a basis for the deed transactions, in case the photograph is subsequently placed on the power of attorney.
Image-16: An Uncertified Power of Attorney with Notary Seal or Stamp on the Photograph.
- IDENTITY DOCUMENTS TO BE BASED ON POWER OF ATTORNEY
4.1. In Power of Attorneys given by Foreign Real Persons
Power of attorney issued on behalf of foreign nationals must be issued in accordance with our Circular No. 2013/13, based on identity documents issued by the country of citizenship or passport documents issued by the country of citizenship. (Circular dated 16.09.2013 and numbered 1750-2013/13, the exceptional provision is reserved regarding Palestinian nationals.) In addition, special attention should be paid to the fact that the validity period of the aforementioned documents has not expired as of the date of issuance of the power of attorney.
The nationality information of the person must be present in the identity and passports that are the basis of the power of attorney. Otherwise, this matter must be proved by the relevant person with a document containing the necessary approvals within the framework of the Circular No. 2013/13 and the relevant instructions.
4.2. In Power of Attorneys given by Turkish Citizens
Article 18/2 of the Land Registry Regulation states that “If the right holder is a real person, an identity card with the identity number of the Republic of Turkey is requested”. It must be issued based on the identity document. In addition to the identity card in the power of attorney issued by the notary publics of foreign countries, it is considered appropriate to take the power of attorney based on the passport document issued by our country as a basis for the deed transactions.
However, passport and T.C. Driver’s license, professional identity card, travel passport, temporary protection document etc. It is not possible to accept the power of attorney issued on the basis of documents such as, and the passport of another country.
- SIGNATURE OF THE POWER OF ATTORNEY AND APPROVAL OF THE PAGES
Since it is obligatory to have the signature of the person giving the power of attorney in the 4th paragraph of the 18th article of the Land Registry Regulation, the power of attorney issued abroad must also have the signature to be used for the title deed transaction.
However, in the power of attorney that is connected in such a way that each page or the first and subsequent pages cannot be separated from each other without being tampered with, the first and last page must be certified with a stamp if the power of attorney is certified by a stamp by the authority issuing the power of attorney. Or the first and last page must be certified with a seal if the power of attorney is certified by a seal by the authority issuing the power of attorney.
- REQUIREMENTS FOR DOCUMENTS BASED ON ATTORNEY.
In the event that the proxy appoints another person as a proxy based on the power of attorney, due to the provision of “If the proxy has appointed someone else as a proxy based on the power of attorney, the power of attorney on which it is based is also sought.” in the 4th paragraph of the 18th article of the Land Registry Regulation published in the Official Gazette dated 17.08.2013 and numbered 28738, the original/certified copy of the supporting power of attorney shall be submitted to the new power of attorney. It must be submitted in an attached form or together with the original/certified copy. In other words, in cases where the supporting power of attorney is not submitted separately as an attached or certified basis, the original of the supporting power of attorney must be submitted, and the original power of attorney to be submitted must be certified by an apostille or consulate.
For this reason, since the conditions specified are also sought for the power of attorney issued abroad, it will not be possible to accept the power of attorney that does not comply with the specified conditions.
In accordance with Article 5 of the Notaries Union of Turkey’s Circular No. 3, dated 12.06.2019, titled “All notary transactions that require action in the land registry, except for the power of attorney issued for business proceedings, and the supporting documents that must be attached to some power of attorneys” and Article 79 of the Notary Public Law No. 1512, it is stipulated that copies of identity cards will be attached to all notary transactions that require transactions in the title deed. In this context, the same issues will be sought for the power of attorney issued by our Consulates. However, in the power of attorney issued by the authorities authorized to perform notary service in those countries abroad, if the underlying identity document is not attached as a base to the power of attorney, it may be requested to submit a notarized copy of the identity document based on the power of attorney. If all the information contained in the identity document is included in the power of attorney, the approved identity sample may not be sought separately.
- OTHER MATTERS
7.1. Power Of Attorney Issued By Foreign Representatives In Our Country
With the 1963 Vienna Convention on Consular Relations, notary public operations are counted among consular duties (Article 5/f). However, transactions related to real estate in the country of residence are excluded from these notary public duties. In other words, since the consulates of foreign states in our country do not have the authority to carry out notary transactions that allow transactions on real estates in our country, it is not possible to accept the power of attorney issued by these authorities.
In addition, since the notary services of foreign representative offices in other countries will be for the transactions of their own citizens in their own countries, it will not be possible to use them in real estate savings in our country. For example, a power of attorney issued by the foreign representative of country A in country B cannot be used in transactions related to real estate in our country.
7.2. Attorneys Offered By Our Overseas Representatives With Translation Approvals
If the translation of the power of attorney issued by the notary publics abroad is approved by our consulate, these translations will be considered as the basis for the title deed transactions. In this case, it is sufficient to state that the translator is the sworn translator of the foreign representative office and that the oath report is present at the agency.
If this document is submitted, there is no need for a Turkish translation approved by a notary public in our country. However, if the translation of the power of attorney made by any translator is submitted in an approved form by the consulate, not including the text, it is not possible for this document to be taken as a basis for the land registry transactions, and in this case, a Turkish translation of the power of attorney approved by a notary public in our country should be sought.
7.3. Trade Offices Affiliated To The Ministry Of Foreign
It is possible for our foreign representative offices, which operate as trade offices under our Ministry of Foreign Affairs, to perform notary public transactions, and the power of attorney issued by these representative offices can be taken as a basis for title deed transactions. For example, the power of attorney issued by our Trade Office in Taipei must be accepted as the power of attorney issued by our consulates.
7.4. Attorneys Issued And Approved By Honorary Consulate
Our honorary consulates are currently not authorized to issue a power of attorney within the framework of the Notary Public Law. As a matter of fact, in the letter of 13.09.2002 dated 13.09.2002 and numbered 018975 of the General Directorate of Legal Affairs of the Ministry of Justice, it was stated that honorary consuls cannot serve as a notary public. On the other hand, it is not possible for the honorary consulates to certify the seal of the authority to which the signature on the power of attorney issued by foreign notaries is made by our consulates. In this context, if the power of attorney issued by honorary consuls or certified by signature and seal is submitted, this power of attorneys will not be taken as a basis for title deed transactions.
7.5. Attorneys Of Approval
In accordance with Article 89 of the Notary Law No. 1512, the power of attorney that requires action in the title deed must be in the form of regulation. However, it is not necessary to look for the phrase “made in the form of an arrangement” in the power of attorney issued in the official languages of foreign countries in accordance with the domestic laws of these countries.
However, in some power of attorneys submitted, it is seen that there are statements that the power of attorney is made in the form of approval, and it is not possible to take the power of attorney presented in this way as a basis for the land registry transactions.
It is seen that the statement “I certify without being included in the text” in the marked field on the power of attorney below, only confirms that the signature belongs to the person giving the power of attorney. There is no statement here that the Notary public approves the accuracy or validity of the document, or even the legal capacity of the person who signed this document, and it is not possible to take the power of attorney with these similar phrases as a basis for the deed transactions.
Image-17: A Power of Attorney Sample Prepared as Approval and Containing Necessary Approvals.
