In the realities of the modern world in which legal turnover is
increasingly crossing borders, it is not infrequently happens that the
power of attorney for ownership transfer of real estate located in Poland
is granted outside the country. In this case, due to art. 1138 Civil
Procedure Code authentication of the document is required. According to
this provision, a document concerning ownership transfer of real estate
located in Poland should be authenticated by the Polish diplomatic mission
or consular office. In practice of applying the above regulation, courts
and notaries derive from the mere fact of document authentication too far
reaching conclusions, recognizing, inter alia, that foreign document
authentication confirms the compliance of a legal act (eg the fact of
authorization of a representative) with the law in force at the place where
such document has been drawn up. As an example, may be pointed out
erroneous opinion that the mere placing by consul on the power of attorney
for ownership transfer of real estate located in Poland of a clause stating
that the document is compatible with the law of place of its issuing means
that the form of such power of attorney is sufficient in light of
applicable there material law. Whereas, the clause provided by the consul
does not concern the content of a legal action embraced by a document, but
merely confirms the purely formal compliance of the document with local law
(eg, that the signature under the power of attorney has been authenticated
by the competent authority). The Supreme Court in several rulings
emphasized that foreign document authentication does not determine – in a
binding way for a Polish court – compliance of the legal act embraced by
such document with the law in force at the place where such document has
been drawn up. This means that despite document authentication by the
consul, the court is obliged to determine the applicable foreign law and
assess whether the legal act complies with such foreign law (see the
resolution of the Supreme Court of 13.04.2007 (III CZP 21/07), judgment of
the Supreme Court of 31.05.2012 (IV CSK 419/11)).
The logical consequence of the aforementioned legal character of document
authentication referred to in art. 1138 Civil Procedure Code is that the
unauthenticated power of attorney property for ownership transfer of real
estate does not lead to invalidity of the power of attorney for ownership
transfer of real estate located in Poland. The above opinion has been
confirmed by the Supreme Court, which stated in the judgment of 31.05.2012
(IV CSK 419/11) that the mere faultiness of power of attorney
authentication granted outside the country still does not mean that
representative was not authorized to conclude an agreement transferring
ownership of real estate located in Poland.
Author: legal counsel Paweł Helta
