Documents You Need Notarised When Selling Property Overseas

Many people in Australia own property in another country: a flat bought before they migrated, a family house they inherited, land held jointly with siblings. Selling it without flying back is usually possible, and the notary in Australia is central to how — but only after several things have been settled in the country where the property is.

This page follows a sale in the order it usually happens.

Step one: decide whether you will travel

If you can be there to sign the sale documents in person, you may need nothing notarised in Australia at all; the formalities happen locally. Most people selling from here cannot, or do not want to, travel for each stage. They appoint someone to act for them, and that appointment is what the Australian notary deals with.

Make this decision first, because it shapes everything else.

Step two: appoint a lawyer there, and check the title

Engage a lawyer in the country where the property is. In many civil law countries a local notary also conducts the sale itself; that is a different office from an Australian notary, with far wider powers, and the two work together.

The lawyer's first job is to confirm that you can sell. Two problems stop sales more than any other:

• The property is not yet in your name. If you inherited it, the succession may never have been formally completed, and the title may still be registered to a parent or grandparent. That has to be fixed before you can sell, and it has its own paperwork. See our page on inheriting an estate overseas.
• Not all the owners are on board. Every registered owner has to sign, or appoint someone who can. In some countries a spouse must also consent to the sale even if they are not on the title. If siblings or a spouse also live in Australia, each will need the same documents as you.

The title records themselves are held in that country's registry. They are foreign documents, and an Australian notary has nothing to add to them.

Step three: the power of attorney

This is the core document. It authorises your representative — the lawyer, a relative, or an agent — to sign the sale contract, sign the transfer, receive the price and deal with the tax authorities for you.

Three points decide whether it works:

1. It must be drafted in that country's form. A power of attorney must satisfy the law of the place where it will be used. The lawyer there should prepare it, often in a bilingual version. An Australian template will very likely be refused by the foreign registry.
2. It must be specific. Many registries want the property identified precisely, and the powers spelled out: to sell, to set or accept a price, to sign, to receive money. A general power may not be enough.
3. It may have a shelf life. Some registries and banks reject a power of attorney signed more than a certain time before it is used. Ask, and time the signing to the expected sale date.

Bring the document unsigned to the notary, with your passport. The notary confirms your identity, that you understand what you are signing and that you are doing so freely, and witnesses your signature. It then goes to DFAT: an apostille if the country is a member of the Apostille Convention, which must be checked against the HCCH status table on the day, or DFAT authentication and then legalisation at that country's embassy if not.

Some countries require a power of attorney for property to be signed at their own consulate instead, or to be registered locally before it can be used. Ask the lawyer before booking anyone. Our page on notarising a power of attorney covers the appointment in detail.

Step four: identity, marriage and names

Alongside the power of attorney, the lawyer will usually want:

• a notarised copy of your passport
• your marriage certificate, if a spouse's consent or share is relevant — an Australian registry certificate may be apostilled by DFAT directly, without a notary; confirm with DFAT
• evidence linking you to the name on the title

That last point matters when the property was registered decades ago, under a maiden name, an old passport number, or a spelling since changed. A sworn declaration that both refer to you is a notarial act and belongs in the same appointment.

Step five: tax and getting the money out

A country may tax a non-resident seller's gain, withhold part of the price, or require a tax clearance before the transfer is registered. You may need a tax number there, often obtainable through your representative.

Australia may also tax the gain, if you are an Australian tax resident. Get advice from a tax adviser in both countries before you sign a contract, not after.

Some countries also restrict moving sale proceeds abroad, and a bank may want documents showing the sale and the tax paid before it releases funds. Ask the lawyer early; it can decide how long the money takes to reach you.

If you are buying instead

The notary's role for a buyer is narrower. If you sign in person abroad, you may need nothing notarised here. If you will not attend completion, the power of attorney above is the document, drafted by a lawyer there and signed before a notary here, with the same authentication chain. Banks and local notaries may also want notarised identity documents and evidence of where your funds come from.

Frequently asked questions

Can my brother in Australia and I sign one power of attorney together? Sometimes, if the foreign lawyer drafts it that way. Each of you still signs before the notary with your own identification.

Can a Justice of the Peace witness the power of attorney? Not for use overseas. A JP's certification is not recognised abroad and cannot be apostilled.