Power of Attorney Pitfalls

In my 18 years as a settlement attorney, I can point to an improper Power of Attorney (“POA”) form as one of the most common causes of a delayed closing. You have no doubt encountered clients who are too busy or physically unable to make it to closing. You’ve heard “My mom gave me Power of Attorney,” “I gave my husband Power of Attorney,” “Grandma is in the nursing home – I have Power of Attorney.” Simple enough – right? Wrong.

So often, clients find POA documents online or stationary stores. We are frequently presented with general “checklist” POA forms and clients are dismayed to learn that we cannot accept them for the purpose of insuring title. When it comes to conveying or encumbering real property by Power of Attorney, make sure your client has the proper legal authority well before the closing date.

Many states specifically address, by statute, the use of Power of Attorney and impose very specific requirements. Title insurance underwriters go beyond the state’s statutory requirements with even stricter guidelines for Power of Attorney usage. I think it’s helpful to first understand the definition of an “attorney.”

ATTORNEY: A person legally appointed by another to act as his or her agent in the transaction. . . . www.dictionary.com.

It’s also important to understand the two specific parties in the Power of Attorney. The PRINCIPAL is the person granting another the power to act in their stead; the one who signs the POA document. The ATTORNEY-IN-FACT is the receiver of the power from the Principal.

In order to satisfy most title insurers, a POA form to be used for the purpose of conveying or encumbering real property must meet the following requirements:

RECENT: The document needs to have been executed by the Principal within a year of the transaction at which it is being used. While exceptions are made on a case-by-case basis, it is rare that a title insurance underwriter will accept an aging POA because of risk of fraud or marketability issues.

SPECIFIC: The document must grant the Attorney-in-Fact the powers required to effect the transaction and should recite the specifics of that transaction (i.e., property address, convey or encumber). A document giving the Attorney-in-Fact the ability to “handle real estate transactions” is too vague and too general.

DURABLE: The document must state that the Power of Attorney will not terminate upon the disability of the Principal. It is not acceptable for the document to be entitled “Durable Power of Attorney” and not recite the above durability language specifically with the text.

ORIGINAL: The document must be an original. A copy of the POA is not acceptable. The POA must be recorded with the clerk’s office and the clerk requires original documents to be recorded.

To be absolutely certain that your client’s Power of Attorney is acceptable, please forward to our office for review prior to closing. If you would like to have sample POA forms recommended by our office, please feel free to contact us and we will gladly provide those forms.

Transparency in Title Charges

WHY AREN'T TITLE COMPANIES MORE TRANSPARENT?

On average, title charges (i.e., settlement or closing fee, title insurance) comprise 70% of the total variable closing costs*. Since title charges do vary significantly from title company-to-title company in DC, MD, VA, and FL, it is very important for a home buyer to comparison shop.

Ever wonder why most title companies force you to make contact with them in order to get a quote for title charges? Seriously, with today's technology, why won't your title company allow you to anonymously get a customized quote for their services so you can do some comparison shopping? Why do you have to contact them and wait for them to call or email you back with a quote?

Where is the demand from consumers on title companies? After all, mortgage lenders are soon to be required (by law - see http://www.hud.gov/offices/hsg/ramh/res/respa_hm.cfm) to provide a Good Faith Estimate (GFE) that is subject to a "no tolerance" increase for originiation and lender costs. Shouldn't similar demands be placed on title companies?

Most title companies hope that the referring party sends the contract and/or title order and doesn't encourage the consumer to comparison shop for title services. In this instance, the consumer is a captive audience and will be charged accordingly. When the referring party does encourage the consumer to shop, most title companies force the consumer to call them or email them before they will provide a quote for services. They want to "feel you out" over the phone or via email to determine how hard you are shopping. If they sense a "hard" shopper, the price goes down; if they sense a "soft" shopper, the price may go up. In other words, their title charges are not consistent across the board and vary depending on how hard they have to try. Further, there is a belief among these same title companies that if they can just get you on the phone or make direct contact with you, they can "reel you in" and sell you on their service (even if the company's charges are above market). If you are like me, you really don't want to talk with anyone and have to haggle - JUST GIVE ME YOUR PRICE SO I CAN COMPARE AGAINST OTHERS!

Whether you are a "hard" shopper or a "soft" shopper, the charges are consistent and available online 24/7 at http://www.federaltitle.com/. You don't have to talk to us! We are so confident of our service and pricing, that we allow consumers to obtain, ANONYMOUSLY, a guaranteed quote for services using our QuickQuote https://www.federaltitle.com/titleagents/QuickQuote/Default.aspx feature. Give it a try and you will see that Federal Title & Escrow Company is the most transparent and consumer-friendly title company in the market.

*Accurately defined, "variable closing costs" are those non-recurring costs for which you can shop. Examples of variable closing costs include lender charges (i.e., appraisal fee, underwriting fee, tax service fee, flood certification, document preparation fee); title company charges (i.e., settlement or closing fee, title insurance premium); or ancillary services (i.e., location survey, property inspection, termite report, home warranty).

Items such as transfer taxes, recordation taxes, stamp tax, prepaid interest and escrow/reserves for taxes/insurance are not considered "closing costs" because these items do not vary among service providers and cannot be "shopped."