Questions and Answers Part 1 – Helpful Tips For Property Investors.

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Question:

“If I have been sold a mortgage or a property in Cyprus, and the agent / solicitor Bank used a Power of Attorney, which was not a legally granted / witnessed POA.  What are my rights”?

Answer:

You have the right to be heard in both the Cypriot Courts and the EC Courts if you wish to take that route.  We would strongly suggest that if your Solicitor is not willing to issue proceedings against another solicitor, he / she is not acting in your best interests and you should consider going elsewhere.

Your solicitor’s role is to ensure that you get justice, not to protect their economic position.The Law is clear regarding the abuse of Power of Attorneys.

Abuse of Powers of Attorney

  1. Is the chronic and deliberate abuse of a Power of Attorney a Civil or Criminal Matter? – can be both, can charge them with fraud which is a criminal offence and can also sue them to get back what was lost as a result of the abuse.
  2. If the person who has been appointed with the power of attorney also happens to be a lawyer, it is also a disciplinary issue.
  3. Must a Power of Attorney be written in the language of the Principle? – must be in a language understood by the person signing it, giving it.
  4. Is the onus of proof as to whether the Principle is known to the Certifying Officer prior to Certification on the Principle or the Agent? – The Certifying Officer is obliged, by law, to personally know the person that he is certifying the signature of.
  5. If he does not know the person signing personally, he can still certify as long as there are 2 witnesses who personally know the person signing the Power of Attorney.

The Law:

The Law is fairly unambiguous regarding POAs.  There must be a qualified Notary present at the signing of the Power or a person Qualified to carry out the duty of an Officer.

Any part of the documentation that is not in the habitual language of the assigning party must be translated by the Officer or physically translated prior to signing in order for the Terms and Warranties to be clearly understood by the assigning party on reading the document.

Even if principals have delegated authority to an agent through a power of attorney, they can still make important decisions for themselves. But, their agents may act for them as well.

Their agents must follow directions as long as they are capable of making decisions for themselves. A power of attorney is simply one way to share authority with someone else.

Unconscionable conduct:

This would be conduct that is Prima Fascia to the determent of the client.  Signing a Mortgage without me seeing it if it’s not the best interest rate or product available to me in the market place.  Fiduciaries have SHARED POWERS they are not completely autonomous.

Whatever powers the principal gives the agent, the agent must act for the principal’s best interests, must maintain accurate records, keep the principal’s property separate from his or hers and avoid

Conflicts of Interest:

We have highlighted Conflict of Interest, because if the agent / solicitors are buying property from a developer which he / she does regular business with there is automatically a conflict of interest.

Is anyone getting a commission for referring business?

What is the relationship between the mortgage broker / developer and the agent?  Are they related?

Who is getting the best deal, the client or the Agent?

This is the reason we sign in front of an Officer, in order to receive impartial unbiased advice, before and during the signing process.

The Property Misdirection’s Act 1991 is clearly written and narrow;

(1) Where a false or misleading statement about a prescribed matter is made in the course of an estate agency business or a property development business, otherwise than in providing Conveyancing services, the person by whom the business is carried on shall be guilty of an offence under this section.

EC Regulation (Consumer Protection from Unfair Trading)

Misleading actions:

A commercial practice shall be regarded as Misleading and Unfair if it contains false information and is therefore untruthful or in any way, including overall presentation, deceives or is likely to deceive the average consumer, even if the information is factually correct, in relation to one or more of the following elements, and in either case causes or is likely to cause him to take a transactional decision that he would not have taken otherwise.

The Banks:

The Banks have a Duty of Care to you; they are supposed to ensure that they follow the Legal Requirements and the rules regarding due diligence.

You are protected by the Law.  You do have several EC Regulations and Directives to shelter behind. And there are many routes available to any person seeking restitution or a legal remedy.

Please do not hesitate to contact H&G, should you wish to discuss the matter.