Vermont Attorneys Title Corporation

• Vermont Title Standards Index ›

  • 1.1 The Role of the Examining Attorney
  • 1.2 The Examining Attorney's Attitude
  • 1.3 Definition of Marketable Title
  • 1.4 Reference to Title Standards in Real Estate Sales Contract
  • 2.1 Period of Search
  • 2.2 The Concept of the Chain of Title and its Relationship of the Rule of Record Notice and the Scope of the Title Searcher's Obligation
  • 2.3 Effect of Recording Instruments Claiming an Interest in Real Estate
  • 2.4 Wild Instruments: Instruments by Strangers to the Record Chain of Title
  • 2.4A After Acquired Property
  • 2.5 Priority of Conveyances
  • 2.6 Time When a Conveyance is Considered as Properly "Recorded"
  • 2.7 Record of Expired Leases or Expired Interests
  • 4.1 Limitation on the Use by Grantor of Corrective Deeds
  • 6.1 Grantors
  • 6.2 Majority
  • 6.3 Mental Capacity
  • 6.4 Marital Interests
  • 6.5 Powers of Attorney
  • 7.1 Grantees
  • 8.1 Name Variances
  • 9.1 Execution, Witnessing and Acknowledgement
  • 11.1 Delivery
  • 13.1 Conveyance by Heirs' Deed
  • 13.2 Conveyance by Devisees in Lieu of Probate Administration
  • 13.3 Omitted Real Estate or Faulty Description of Closed Estate
  • 13.4 Conveyance by Trustee of a Non-Probate Trust
  • 14.1 Conveyance to Two or More Persons
  • 18.1 Federal Special Gift Tax Lien
  • 18.2 Irregularities and Discrepancies in Discharges of Mortgage and other Documents
  • 18.3 Discharges of Corrected, Re-Recorded, or Modified Mortgages
  • 18.4 Effect of Failure to Discharge Assignments of Leases and/or Rent, Riders or Financing Statements
  • 18.5 Discharges Involving Mortgage Electronic Registration System (MERS)
  • 20.1 Presumptions Applicable to Corporate Conveyances
  • 22.1 Limited Liability Companies
  • 23.1 Federal General Tax Lien
  • 24.1 Federal Special Estate Tax Lien
  • 25.1 Federal Gift Tax Lien
  • 27.1 Vermont Estate Tax Lien
  • 28.1 Establishing Marketable Title To Interests In Real Property Owned By Failed Financial Institutions
  • 28.2 Title of the Receiver of a Failed Financial Institution to the Assets of That Institution
  • 28.3 Title of the Immediate Transferee of the Receiver of a Failed Financial Institution
  • 28.4 Marketability of Title In a Real Estate Interest of a Failed Financial Institution for Which No Conveyance, Transfer or Assignment Appears of Record Prior to the Dissolution of the Bridge Institution Which Had Continued The Business of the Failed Institution
  • 28.5 Discharges, Partial Releases, Assignments and Foreclosure of Mortgages of a Failed Institution By a Transferee of the Receiver For Such Failed Institution

STANDARD 6.5

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 POWERS OF ATTORNEY

In the absence of actual knowledge or constructive notice derived from properly  indexed instruments in the chain of title to the contrary, a title examiner may presume that an individual grantor who has conveyed property pursuant to a properly executed and recorded power of attorney, whether or not durable, was (a) competent to execute the power of attorney, (b) competent and alive at the time the deed was delivered, and (c) the power of attorney had not been revoked at the time the deed was delivered.

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Comment 1.  A deed or other conveyance of lands or of an estate or interest in land, made under a power of attorney, shall not be of any effect unless such power of attorney, is signed, witnessed by one or more witnesses, acknowledged and recorded in the office where such deed is required to be recorded. Title 27 V.S.A. §305.    For acknowledgment out of state, including a foreign country, see 27 V.S.A. §379(a).

Comment 2.  In the case of a deed or other instrument executed pursuant to a durable power of attorney, there is no requirement of competency at the time of the conveyance.

Comment 3.  An attorney representing a purchaser or mortgagee from a grantor acting through an attorney in fact in a current transaction must establish: (a) that the power of attorney authorizes and empowers the attorney in fact to take the action required to convey title; (b) that the power is properly executed; and, (c) whether the instrument is a "durable power of attorney". As to requirements for and effect of a durable power of attorney, see Title 14 V.S.A. §3508.

If the power of attorney is not “durable”, and is being used in a current transaction, an affidavit should be provided if requested and may be recorded. See 14 V.S.A. §3507(d).

Comment 4.  The age of the power of attorney is not relevant to its validity unless the power of attorney expired by its own terms. See 14 V.S.A. 3502(d)(1).

Comment 5.  An executor, administrator or guardian may not appoint an attorney in fact for the purpose of executing an instrument affecting an interest in real property.  See Watkins' Estate v. Howard National Bank & Trust Company, 113 Vt. 126 (1943), at page 133.

 
Absent evidence of authority to the contrary, a trustee, corporate officer, designated partner, or anyone else acting in an elected or appointive capacity may not appoint an attorney in fact for the purpose of executing a document affecting title to real property. A designated partner is one appointed under a written resolution or aut¬horization to act on behalf of the partnership.  A general partner may appoint an attorney in fact as to matters affecting only the interest of that general partner.

Comment 6.  A person may accept a deed or other instrument signed by a substitute attorney in fact, provided that (a) the power of attorney document includes language allowing the attorney in fact to appoint a substitute attorney in fact; (b) the appointment of the substitute attorney in fact is exercised pursuant to a document executed with the formalities of a deed, which makes reference to the original power of attorney; and (c) the document exercising the power of substitution  and the  power of attorney document are recorded in the same land records.

Comment 7.  A photocopy or electronically transmitted facsimile of the POA may be relied upon to the same extent as an original. 14 VSA §3513.

 History

March 29, 2000: 

Restated the language defining “knowledge” as being actual knowledge or constructive notice derived from properly indexed instruments in the chain of title. This concept is used in the first clause of Standards 6.2, 6.3, 6.4 and 6.5 Insert clause re leading phrase.

Obligations of an attorney accepting documents signed using a power of attorney were clarified in Comment 3.

Former Comment 4 was incorporated in Comment 1.

Former Comment 5 was renumbered to Comment 4.

New Text was added to Comment 5 to explain the limitations on appoint-ment of an attorney in fact by a fiduciary.

Comment 6 was added to describe when the designation of a substitute attorney in fact is effective.

September 26, 2008: 

Comment 3 was amended as follows: change to statutory citation from 14 V.S.A. §3051 to §3508; last paragraph amended and statutory citation added.

   Amended comment 4 to add the words “unless the power of attorney expired by its own terms. See 14 V.S.A. 3502(d)(1).”

   Comment 7 was added.
 

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