Real Estate Powers of Attorney

It’s a reality of life that there may come a time when your spouse, partner or loved one either becomes incapacitated or unable to act for themselves.  If the individual has financial matters involving real estate, it’s very important to have a Power of Attorney filed in order to protect their interests.  Below are the different types of POA’s available for real estate transactions:

Special Power of Attorney for a Sale – Good for six months or less in most cases, this POA is used for selling  property.  A legal description of it, notarized and recorded*, is also needed to finalize the transaction.  It’s also good for only one specific piece of property.  Another sale would need another POA.

Special Power of Attorney for a Purchase/Encumber – Covers a property purchase. With lender approval, you can also use this POA to financially encumber property with a security instrument.  This POA is also only good for six months or less, and a legal description of the property must be notarized and recorded*.  In addition, this POA only covers one specific property purchase.  If the individual wants to do another buy, they’d need to do another POA.

Durable Power of Attorney – This is the most common POA, where an individual may give power to cover a wide array of matters from health care, to buying or selling, to managing business or financial matters.  A POA can even be set up to file a lawsuit. The length of a POA can be set for a specific or indefinite period, but can also be cancelled at any time. It can also take effect immediately or in the future.  There is language one can put in to cover everything but for real estate transactions, the POA needs to specifically include the right to sell and/or purchase property, make property gifts, or change community property agreements.  Filing* this document also ensures that real estate transactions are valid for title insurance purposes.

Other Power of Attorney Information – The POA ends in the event of the individual’s death.  And, a POA does not substitute for a will by either creating or altering one.

How to Create a Power of Attorney – A Durable POA is typically set up and filed by an attorney.  A Special POA can either be done by an attorney, or by using approved generic forms which you can download from the Washington State Bar Association forms website.  If you go this route, don’t forget to get it recorded!

For More Information – The University of Washington’s Marion Gould Gallagher Law Library website is an excellent source on all sorts of legal matters. Their Power of Attorney link also includes information on Guardianships.  Legal advice via email and phone is also available, just check out the links on top of their webpage.

*For King County residents, ”Recorded” and “Filing” refers to registering POA’s with the King County Recorder’s office.  POA’s are considered confidential and in King County, are not accessible to the public.

The ABC’s of Deeds

You may think a deed is a pretty standard document but in reality, there are seven types to choose from.  They are:

Bargain and Sale Deed:  A deed by which the grantor “bargains, sells and conveys” real property to the grantee.  A bargain and sale deed conveys fee simple title to the grantee and warrants against defects created by the grantor, except for those matters disclosed in the deed.

Quit Claim Deed:  A deed by which the grantor “conveys and quit claims” to the grantee any interest the grantor might have, if any, in certain real property. A quit claim deed conveys no warranties or title. A quit claim deed conveys no after-acquired title, unless the deed contains words expressing the intent to do so.

Personal Representative Deed:  An attorney-prepared deed used when the seller of property is deceased. The Grantor on this type of deed has been authorized by the court to convey the property on behalf of the estate. The attorney preparing the deed may incorporate warrants similar to Bargain & Sale Deed, Special Warranty Deed or Quit Claim Deed.

Statutory Warranty Deed:  A deed by which the grantor “conveys and warrants” the real property to the grantee. A statutory warranty deed conveys fee simple title to the grantee and warrants against defects asserted by all persons, except for those matters disclosed in the deed.

Special Warranty Deed:  A special warranty deed is similar to a Washington form bargain and sale deed, which conveys fee simple title to the grantee and warrants against defects created by the grantor, except for those matters disclosed in the deed.

Tax Deed:  A deed issued by the county treasurer to the purchaser at a tax sale conducted due to nonpayment of taxes.  A tax deed should be recorded to give notice that title has passed to the purchaser at the sale.

Trustee’s Deed:  A deed issued by the trustee of a deed of trust following the non-judicial foreclosure of a deed of trust in default.  First, the trustee or beneficiary sends a Notice of Default.  Then, the trustee: 1) records a Notice of Trustee’s Sale; 2) holds the trustee’s sale; and 3) issues a Trustee’s Deed to the highest bidder at the sale.  The Trustee’s Deed should be recorded to give notice that title has passed to the purchaser at the sale.

If you need further explanation specific to your situation, please consult your attorney. We’d like to thank Michelle Barry, Senior Account Manager at Commonwealth Land Title Company of Puget Sound, LLC for allowing us to reprint this material. If you have further questions, please contact her at cwtitle.net.