Among the "dormant" assets held by many overseas Vietnamese, real estate is often considered the most valuable asset back home. However, restrictions on travel during the global COVID-19 pandemic made granting a power of attorney for real estate transfer transactions a major concern for many, particularly given the risk of a transaction being delayed — or even cancelled — simply because the transfer procedure was not carried out in the proper legal order.
In this article, Giang Le Notary Office shares a summary of guidance from the website of the Vietnamese Embassy in Canada, for the benefit of overseas Vietnamese, particularly those in Canada, on the procedures and steps involved in granting a power of attorney to a representative to carry out real estate transactions back home.
Granting a power of attorney typically arises from the needs and voluntary intent of the person holding rights to a piece of real estate. In Vietnam, because the State is the sole owner of all land, an individual's "ownership" is not, strictly speaking, formal title — it is referred to only as the "right to use land and any property attached to that land." In practice, many people lived in Vietnam for a long time and were named on numerous land use rights or home ownership certificates before deciding to settle permanently abroad. For this reason, when the need arises to transfer land use rights and returning to Vietnam to personally complete the statutory procedures is not possible, authority to act on one's behalf is typically granted to an attorney-in-fact who is a family member or a lawyer.
Granting a power of attorney from abroad to Vietnam generally involves 3 basic steps:
- Notarization of the principal's signature at a foreign notary office (Notarization);
- Authentication of the notary's signature and seal (Authentication);
- Consular legalization at a Vietnamese diplomatic mission abroad — an embassy or consulate (Legalization).
Please note: If you do not wish to go through consular legalization and instead want to have the certification issued directly by the Vietnamese Embassy or Consulate in Canada, you must sign the power of attorney document in the presence of a consular officer at the embassy. In that case, the consular officer acts in a role similar to a Vietnamese Notary Public abroad, certifying your signature and the content of the power of attorney document. A document certified by the Vietnamese Embassy or Consulate in Canada can be used directly in Vietnam without further legalization (skipping steps 2 and 3, since the document does not bear the seal and signature of a foreign notary).
Step 1: Notarizing the Principal's Signature
A power of attorney may be drafted by a law firm or notary office, or by yourself, but it must contain the provisions necessary for the purpose of the authorization. In order to express your voluntary intent on the power of attorney document, you must sign it in front of a Notary Public, as they are required to have you take an oath before signing. The most common mistake we see clients make is arriving to meet the Notary Public with the document already signed. This renders the signature on the document invalid for certification purposes, since it was not witnessed by the Notary Public, giving them reasonable grounds to doubt that the signature is genuinely yours. The best approach is to bring an unsigned, draft version of the document and wait until the Notary Public tells you that you may sign it in their presence.
Step 2: Authenticating the Notary's Signature and Seal
When a Notary Public signs and affixes a notarial seal to your document, this reflects their authority to certify the legal validity of a signature, document, or legal act (an oath or statutory declaration). When a document bearing a Notary Public's signature is to be used in a country other than the one where they are licensed, their seal and signature on your document must be authenticated by the Ministry of Foreign Affairs of the country in question. This may feel like an extra step that takes more time, but it is critically important, because every practising Notary Public must register their signature and seal specimen with the Ministry of the Attorney General (or equivalent authority) where their licence was issued. Authenticating the notary's signature and seal is an important safeguard confirming that the signature and seal are genuine and that they are legally recognized.
A request to authenticate a Notary Public's signature and seal specimen is sent to the Ministry of Foreign Affairs of the country in question, or to the Canadian diplomatic mission abroad (embassy or consulate). In some provinces, authentication services may instead be requested from that province's public administration authority. In Canada, Global Affairs Canada does not charge a fee for authentication requests; however, processing time is fairly lengthy (as of August 1, 2023, the standard processing time is 45 business days, plus an additional 5 days if the request is submitted by mail).
Step 3: Consular Legalization at a Vietnamese Diplomatic Mission Abroad
This is the final step to complete the power-of-attorney process. The Vietnamese Embassy will stamp and confirm that your document has been consularly legalized (meaning it has effectively been notarized and accepted for use in Vietnam). Consular legalization is carried out on the basis of the principles and rules set out in domestic legal instruments (for example, Article 26 of Vietnam's February 21, 1992 Ordinance on Consular Matters) and international treaties (for example, Clause 2, Article 3 of the 1961 Vienna Convention on Diplomatic Relations; Article 5 of the 1963 Vienna Convention on Consular Relations). Under Vietnamese law, consular legalization does not apply to documents whose content is contrary to the fundamental principles of Vietnamese law.
Important Notes When Preparing a Power of Attorney
- The power of attorney document must be drafted in Vietnamese and accompanied by a version translated into a foreign language;
- In addition to the power of attorney document itself, you must also have notarized copies of all documents related to the subject matter of the authorization, including a copy of your identification (passport, citizen ID card, driver's licence), a copy of the certificate of ownership of the property or real estate involved, a copy of your marriage certificate and any marital property agreement (if applicable), and — importantly — a separate power of attorney authorizing the attorney-in-fact to apply for a certificate of marital status, dated at the time the land use or home ownership rights arose, from the local authority;
- The power of attorney file (comprising the power of attorney document and the related documents listed above) must be prepared in at least 3 sets (1 original used for the real estate transfer procedure, 1 retained by the Vietnamese diplomatic mission abroad during consular legalization, and 1 original set retained by the notary office in Vietnam).
Accepting a Power of Attorney (Thụ Ủy) in Vietnam
As with any other civil transaction, granting and accepting a power of attorney requires the consent of both parties — the party granting authority and the party accepting it. This means your power of attorney will not be complete unless the attorney-in-fact in Vietnam also formally accepts the authorization at a local notary office (a process known as "thụ ủy").
Ordinarily, this formal acceptance step is not required if both parties to the power of attorney sign the document together, in person, before a Notary Public at the same time, since signing together in the notary's presence, after taking an oath, is sufficient to demonstrate the mutual consent of both parties. However, because your power of attorney is typically signed at different times — the principal signs first, and the attorney-in-fact signs afterward once the document has been sent to Vietnam — the formal acceptance procedure is mandatory to ensure the legal validity of the power of attorney.
Once your representative receives the legalized power-of-attorney file, they will attend a local notary office in Vietnam to complete the formal acceptance procedure. This procedure is administered by the notary office in Vietnam, with fees charged in accordance with regulations set by the Ministry of Finance. Circular 111/2017/TT-BTC provides that notarization fees for contracts involving the transfer, gift, division, merger, exchange, or capital contribution of land use rights are calculated based on the value of the land use rights.
In Canada, the Government of Ontario introduced Bill 170, which passed on May 12, 2020, amending the Notaries Act with an important change allowing appointed Notaries Public to conduct notarizations using online tools (such as video calls). In addition, the Electronic Commerce Act also permits documents to be signed over the Internet. Together, these two pieces of legislation represent a significant change, allowing the principal and the attorney-in-fact to sign the document before a Notary Public at the same time via video call. However, while an electronically signed document is accepted in Canada, whether it will be accepted by a notary office in Vietnam depends considerably on the views and level of caution of each individual notary office. To avoid having your power of attorney document rejected once it reaches Vietnam — wasting time, money, and effort — you should check carefully with the notary office in Vietnam before preparing your power of attorney document.
Ways to Canada Immigration Consulting Joint Stock Company (an affiliated partner of Giang Le Notary Office in Ottawa) offers a full-service package, including:
- Drafting the power of attorney document (prepared by a notary office in Vietnam)
- Certifying the signature, arranging consular legalization or embassy certification in Canada, and sending the file directly to Vietnam to the recipient you designate (carried out by Giang Le Notary Office in Ottawa).
- Accepting the power of attorney and representing you in real estate transactions (as seller and/or buyer), carried out by a lawyer in Vietnam.
- Assisting with the formal acceptance procedure at the notary office, signing the deposit contract, and completing the real estate transfer at our affiliated notary offices in Hanoi, Saigon, or Hai Phong, depending on the location of your real estate transaction.
With this full-service package, you save not only on travel costs but also on waiting time and the effort of preparing documents. Once completed, your file will be delivered directly to your home, or sent directly to the Ways to Canada office in Vietnam. Please specify your preferred delivery method (regular mail, expedited, or signature-required registered mail). For full details on our package pricing, please contact Giang Le Notary Office or Ways to Canada by phone at 0941280956 or email info@canadafile.vn.
