When transferring real estate using a Power of Attorney (POA), proper documentation and recording are crucial to ensure a smooth transaction. As experienced real estate attorneys, we regularly help clients navigate the complexities of property transfers using POAs. Here’s what you need to know about this important legal tool.
Recording Requirements
According to Ohio law, a power of attorney used to transfer real estate must be recorded in the county where the property is located before recording the deed itself. As noted by the Ohio Land Title Association, the POA must be signed, attested, acknowledged, and certified in accordance with state law before it can be used to transfer property. This requirement helps ensure transparency in property records and protects all parties involved in the transaction.
Specific Language Requirements
The POA document must explicitly grant the authority to transfer real estate. As outlined in First American Title’s guidance, the POA must specifically include the power to “sell and convey” property. The power to “sell” alone is insufficient, as this only authorizes the agent to negotiate terms of sale. This distinction is crucial – without the explicit power to “convey,” the agent may be limited in their ability to complete the transaction.
Understanding Durable Powers of Attorney
When using a POA for real estate transfers, it’s important to understand whether the document is a durable power of attorney. According to Ohio law, a durable POA remains effective even if the principal becomes incapacitated. However, the document must contain specific language to establish its durable nature, such as “This power of attorney shall not be affected by disability of the principal.” This distinction can be critical in situations where the principal’s capacity might come into question.
Lost Original POA? Solutions Available
If you’ve lost the original POA, there are options available. You can transfer property using an Affidavit of Facts that includes a copy of the power of attorney as an exhibit. This approach has been accepted by county officials for the purposes of transferring interest in real property. This alternative solution can help prevent delays in property transfers when the original document is unavailable.
Fiduciary Responsibilities
It’s essential to understand that an attorney-in-fact acts as a fiduciary under Ohio law. This means they must act in the best interest of the principal and cannot engage in self-dealing. As noted by the Ohio Land Title Association, a conveyance from the principal by the attorney-in-fact to themselves or their family members may be void or voidable. This protection helps ensure that the POA is not misused for personal gain.
Best Practices
When transferring Real Estate with a Power of Attorney it’s recommended to:
- Attach a copy of the POA to the deed when filing
- Ensure the POA explicitly authorizes real estate transfers
- Verify the POA was effective when the transfer occurred
- Confirm the principal was of sound mind when granting the POA
- Review the POA’s language carefully to confirm it grants appropriate authority
- Contact an experience Real Estate attorney with any questions
Our Experience
Our firm has extensive experience handling real estate transfers involving powers of attorney. We understand the nuances of Ohio’s recording requirements and maintain strong relationships with county recorder offices throughout the state. Our attorneys can help ensure your POA meets all legal requirements and your property transfer proceeds smoothly.
If you need assistance with a real estate transfer involving a power of attorney, please contact our office. We can help review your documentation, prepare necessary affidavits, and guide you through the recording process to protect your interests and ensure a valid transfer. Our team’s expertise in this area can help you avoid common pitfalls and ensure your transaction is completed properly and efficiently.
