EXTENDED COMMENTS BY ELENA GLADYSHEVA, ADVOCATE, MANAGING PARTNER AT RI-CONSULTING

- What does a general power of attorney for an apartment do?

- A general power of attorney for an apartment (in real estate transactions) is ... . Definition, when it is needed, what types exist.

- With the right to sell - What is it? In what cases is it chosen and how is it regulated?

- Without the right to sell - What is it? In what cases is it chosen and how is it regulated?

- Single and general power of attorney - What is it? In what cases is it chosen and how is it regulated?

- How to issue a general power of attorney for an apartment?

- The procedure for drawing up, what documents are needed, who must be present.

- Risks of buying and selling an apartment by general power of attorney:

- What are the risks of the parties in a transaction with a general power of attorney:

- Risks for the buyer

- The seller has the right to revoke the power of attorney;

- Challenging the seller's legal capacity;

- Risks for seller

- Risks of contesting the transaction by other owners;

- Model general power of attorney for an apartment

- What items should be spelled out?

 

In the field of real estate, a power of attorney records the representative's authority to enter into transactions in relation to a real estate object on behalf of and in the interests of the person being represented.

Depending on the scope of powers that the owner is willing to entrust to another person, there are the following types of powers of attorney: general (common) and single power of attorney. It should be noted that this classification is mostly conditional and is not reflected in the law.

It is worth thinking about issuing a general power of attorney if the owner for any reason (long-term departure, employment, illness, etc.) cannot manage the process of selling, renting out or exchanging their own real estate on their own. A general power of attorney allows the representative to carry out a variety of transactions in relation to the property.

Single powers of attorney are issued for a strictly defined transaction. For example, if the owner has found a buyer on his own and negotiated a price with him, but for some reason cannot be present at the conclusion of the transaction and the signing of the agreement in person, he may in the power of attorney fix the right of a representative to perform a specific transaction on certain conditions with a certain person.

Ultimately, only the representee himself can determine the scope of powers delegated to the representative: for example, a power of attorney may stipulate that the representee has the right to enter into any transactions permitted by law with respect to the property (several properties or generally all of the property owned by the representee), including the right to sell the property. If the owner is not willing to transfer this right to his representative, but at the same time does not want to deal with the selection of buyers or tenants, showing the property, state registration of the transaction, etc., he may retain only part of the most important powers (for example, to determine the price, terms, other conditions of the contract, signing the contract or the settlement of the transaction).

A general power of attorney is no more complicated than any other. Since the power of attorney itself is a unilateral transaction, it does not require the consent of the future representative. This means that only the owner of the property can come to the notary to execute a general power of attorney. Remember that a power of attorney can only be issued by a legally capable person - powers of attorney on behalf of minors and on behalf of incapacitated citizens are issued by their legal representatives. To certify a general power of attorney, the owner will need to take the original of his passport, an extract from the Unified State Register of Real Estate (to indicate the individual characteristics of this property - the cadastral number, the exact address), as well as to know the passport data of his future representative.

A power of attorney may only be executed for lawful acts, and its content may not contradict legal requirements. The authority given to the representative must be lawful, enforceable and specific. The text of the power of attorney must clearly and unambiguously state which transactions (any or certain transactions) with which property (a specific property or the entire property belonging to the owner) the representative is authorized to perform.

It is important to note that there are certain risks for both the seller and the buyer when entering into an agreement of sale and purchase of real estate under a general power of attorney.

The first thing a buyer needs to do is to check whether a power of attorney is valid at the time of the transaction. For this purpose, the Federal Chamber of Notaries of Russia has set up a special service in which it is possible to check the validity of a notarial power of attorney.

In addition to checking the validity of the power of attorney, it is necessary to carefully read the text of the power of attorney for the existence of authority to sell a particular object, the price of this object (firm or at the discretion of the representative), the authority to submit documents for state registration with the registering authority (Rosreestr).

In addition, it is worth bearing in mind the possibility of subsequent contestation by interested parties (for example, the owner's heirs) of the very fact of issuing a power of attorney with this scope of authority. Unfortunately, it is practically impossible to protect yourself from this risk on your own - all responsibility, including checking the competence of the owner, lies with the notary who issued the power of attorney.

There are also risks for the owner who has issued a general power of attorney. First and foremost, the owner should remember that he or she is granting another person an extremely broad scope of authority over his or her own property. Unfairness of the representative in the exercise of such powers is difficult to prove in court, if the representative did not violate direct prohibitions established by law (to perform the transaction personally or in relation to another represented person) and did not go beyond the limits of authority set out in the power of attorney.

When issuing a general power of attorney, you should also keep in mind the interests of the other owners of the property in question. For example, if the property was purchased within marriage and one of the spouses is listed as the owner in the Uniform State Register, the sale of joint property of the spouses under a general power of attorney issued by one of them may directly violate the rights of the other spouse, who is also the owner. If the spouse proves that the buyer knew or should have known about his or her opposition to the sale of the common property, the transaction may be declared invalid. The only way to protect yourself in this case is to obtain the consent of the other owners in advance of the sale and purchase agreement.

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