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Carlsbad Sellers - Is Your POA or Conservatorship in Order?

By
Real Estate Agent with eXp Realty of California, Inc. CA DRE #01490977

Don't play attorney - know when to consult oneAre you a homeowner and need to enter the Carlsbad real estate market by selling your home?

  • Do you have a POA (Power of Attorney)?


  • Is there a Conservatorship in place?

Mind you, I am NOT an attorney and cannot provide legal advice here, and what applies here in California may not be an issue in your state. So I would recommend chatting with your attorney before you get too far along in the process of selling your home.

In my recent experience with POAs it seems that the title company will have some particular requirements in order for the POA to be enforceable in the transaction. Specifically the POA must address the issue of the particular property you are acting on, to provide for you to specifically act as seller for that property on behalf of someone else.

It seems that POAs may sometimes be drafted too generically and will not be accepted by the title and escrow companies. Since this document must, as I understand, be recorded as part of the transaction, it must be legally appropriate and acceptable in California (or wherever) in order for the transaction to occur.

GavelA conservatorship is a legal document that defines a form of guardianship by one individual over another (my description, not the legal definition). I believe these need to be recorded and they are in place until altered. It is possible that in some cases a POA may be in conflict with a conservatorship that has been recorded, This must be corrected so the appropriate actions may be taken and a clear title can transfer at closing.

If you are an agent with a client who has either a POA or conservatorship (and perhaps the person acting as POA does not even know there is a conservatorship), it would be prudent to check with the title company at the outset to make sure all is in order and that problems will not arise when documents are to be recorded or at closing.

Some folks seem to think that a POA gives them absolute power to negotiate a contract and sign all documents - that may not be the case.

I have learned that it is wise to not make assumptions, based on a recent experience with both legal documents.

Posted by

Jeff Dowler, CRS
Certified Residential Specialist / Realtor®


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William Johnson
Retired - La Jolla, CA
Retired

Hi Jeff, Good advice provided there. Getting legal assitance is practically mandatory in situations like these.

Aug 24, 2008 06:04 AM
George Souto
George Souto NMLS #65149 FHA, CHFA, VA Mortgages - Middletown, CT
Your Connecticut Mortgage Expert

Jeff I get asked legal and accounting questions all the time.  Even if I know the answer I tell them to speak to their Attorney or Accuntant.  I do mortgages and I stick to answering those questions, and thing else I send them to the proper person.

Aug 24, 2008 12:36 PM
Lynda Eisenmann
Preferred Home Brokers - Brea, CA
Broker Associate ,CRS,GRI,SRES, Brea,CA, Orange Co

Hi Jeff,

Good advice when working with poa's. Better find out the situation with your title company in advance and ot after you're into escrow. And as you know, there are some title compaines that will accept some things that others will not.

Aug 24, 2008 01:33 PM
Neal Bloom
Brokered by eXp Realty LLC - Weston, FL
Realtor CRS-Weston FL Real Estate

Jeff,

I've provided a POA for my out of town clients only if it was inconvenient for them to travel to the closing...but they still are required to sign the sellers docs...I don't volunteer it but offer it if needed.

Aug 24, 2008 11:52 PM
Jeff Dowler, CRS
eXp Realty of California, Inc. - Carlsbad, CA
The Southern California Relocation Dude

William - well I learned early on that having legal advice is important and always advise clients to get this when the situation warrants.

Jeff

Aug 25, 2008 02:10 AM
Jeff Dowler, CRS
eXp Realty of California, Inc. - Carlsbad, CA
The Southern California Relocation Dude

George - well that is certainly the smart thng to do, and we should all follow that practice. There are often legal questions that I get asked that warrant a professional's advice.

Jeff

Aug 25, 2008 02:12 AM
Jeff Dowler, CRS
eXp Realty of California, Inc. - Carlsbad, CA
The Southern California Relocation Dude

Lynda - so true. This is exactly what happened with both docs in a recent situation.

Jeff

Aug 25, 2008 02:13 AM
Jeff Dowler, CRS
eXp Realty of California, Inc. - Carlsbad, CA
The Southern California Relocation Dude

Neal - if done correctly, POAs work well. If developed for a transaction there will not be an issue. The problem is for those that were developed generically beforehand and do not specifiy what the POA has the authority to do. Sounds like things may be done a little differently there than here in CA.

Jeff

Aug 25, 2008 02:18 AM