Power Of Attorneys, Probates And Real Estate Trusts

By: Luigi Frascati
Submitted: 2007-01-17 16:25:36
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There are times when the Seller or Buyer to a real estate transaction may appoint someone to act on their respective behalf and even to sign agreements relating to the Contract of Purchase and Sale as their agents, thereby meeting the requirements at law that all dealings involving land or interests in land be in writing. However, it is always mandatory (in British Columbia) that the agent obtain specific instructions prior to signing any documents on behalf of the parties to a transaction. This is all the more true when a Realtor is authorized to sign on behalf of one of the parties.

The written authorization must set out the exact terms, conditions and scope under which the agent is authorized to sign. A telegram, letter or fax may be used for this purpose, but it must be received by the agent before he/she attempts to act on the Seller's or Buyer's behalf. Agents must avoid signing documents on behalf of anyone based on verbal, telephone or e-mail instructions. Furthermore, evidence of written authority granted by one party to a real estate transaction must be attached to any and all documents where the agent has signed on behalf of the party.

Powers Of Attorney

Where it is desirable or necessary to rely on a Power of Attorney, it is widely recommended that it be granted to someone in accordance with the advices of a lawyer. When a person who has been granted a Power of Attorney signs a contract involving land or an interest in land on behalf of the person granting the Power of Attorney, the correct way for the contract to be completed is as shown on the following example:

"Mary Smith grants a Power of Attorney to Ted Lee to enter into a contract for the sale of her property located at [address in full]".

Ted Lee, then, would sign both the Listing Agreement and the Contract of Purchase and Sale using the following statement:

"Mary Smith, by her attorney in fact" followed immediately by Ted Lee's signature.

Furthermore, a transfer of title executed under a Power of Attorney to be filed at the Land Title Office (in British Columbia) at the time of completion requires the Power of Attorney to be drafted in proper form. This is so, because different Power of Attorneys can be granted by one person to another. While the form of such authority may authorize a party to sign contracts and certain other documents for another party, it may not be sufficient for Land Title registration purposes. Therefore, whenever a Power of Attorney is contemplated or utilized in a trade involving real estate, the parties ought to seek the advices of legal counsel as soon as possible to ensure the form of the Power of Attorney being used is valid and is acceptable for registration. It should be also noted that the Power of Attorney may expire after a specific time or be invalid for other reasons. Therefore the advices of a legal practitioner specializing in real estate transactions are always the best venue.

Dealing With Legal Or Beneficial Owners

The person or legal entity shown as the registered owner of a real property on the Certificate of Title at the Land Title Office may not be the person or entity that signs the Contract of Purchase and Sale as Seller of that particular property. This is a relatively common occurrence in the real estate trade. For a variety of reasons one entity may appear as the registered owner, while another entity may sign the Contract of Purchase and Sale as the Seller. This may happen, for example, if the registered owner holds the subject property in trust for another entity. In this case the beneficial owner (the person for whom the property is being held in trust) may sign the contract.

If the contract is signed by the beneficial owner, there will usually be a recognition of the trust in the contract {for example, John Doe in trust for Mary Black). As well, there will be normally a covenant by the Buyer to accept a transfer from the registered owner and not the beneficial owner who signs the contract. This covenant acts as a waiver of section 6 of the Property Law Act (in British Columbia), which provides that the person who signs the contract as Seller is the person who must sign the transfer. There may be warranties or representations of the beneficial owner, of the registered owner, of both, or limited warranties and representations of each.

In other circumstances the registered owner may wish to structure the transaction as a sale of shares rather than a sale of real property. Such sale may involve the shares of the registered owner or the shares of the beneficial owner of the interest in land.

It is always advisable to deal with legal or beneficial owners after a thorough title search has been executed. For example, in a typical residential real estate transaction problems can arise when a Contract of Purchase and Sale is drafted with the Seller when, in fact, the property is legally owned by some other person or company. In this particular case the Seller may have to transfer the subject property into his or her own name to comply with section 6 of the Property Law Act (a costly transaction involving, among other things, payment of taxes), or face the possibility that the Buyer may legally refuse to complete the transaction if presented with a transfer from the Seller as shown on the contract, rather than the registered owner as shown on title.

Buying From An Estate

A Buyer purchasing from an estate must be assured that the title must pass to him or her without legal problems, and that all parties who can claim against the estate have had their opportunity to do so. If Letters Probate have been granted already and the Wills Variation Act (in British Columbia) has been complied with, no additional clause is required. If, however, these steps have not been concluded a clause similar to the one that follows should be incorporated into the Contract of Purchase and Sale:

"Subject to the Seller receiving the following by [date]:

1) copy of Letters Probate; and 2) assurance that everyone entitled to claim under the Wills Variation Act has waived or released his or her claim against the subject property". An example of a proper way for an executor to sign a contract on behalf of the estate is:

"John Smith, Executor for the estate of (name of the deceased).

In some cases there may be a delay in obtaining Letters Probate.Should that occur, the Buyer may agree to an extension to allow the Executor additional time to obtain the Letters Probate.

Luigi Frascati

Article source: Expert Articles