[WSBAPT] durable power of attorney lost original in real estate deal

Mon Feb 22 17:20:55 PST 2021

See RCW 65.08.060 (3) 
The term "conveyance" includes every written instrument by which any estate or interest in real property is created, transferred, mortgaged or assigned or by which the title to any real property may be affected, including an instrument in execution of a power, although the power be one of revocation only, and an instrument releasing in whole or in part, postponing or subordinating a mortgage or other lien; except a will, a lease for a term of not exceeding two years, and an instrument granting a power to convey real property as the agent or attorney for the owner of the property. "To convey" is to execute a "conveyance" as defined in this subdivision.

RCW 65.08.070  (1) A conveyance of real property, when acknowledged by the person executing the same (the acknowledgment being certified as required by law), may be recorded in the office of the recording officer of the county where the property is situated. Every such conveyance not so recorded is void as against any subsequent purchaser or mortgagee in good faith and for a valuable consideration from the same vendor, his or her heirs or devisees, of the same real property or any portion thereof whose conveyance is first duly recorded

John McCrady
Counsel
Puget Sound Title Company
5350 Orchard Street West
University Place WA 98467
253-476-5721
j.mccrady at pstitle.com
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-----Original Message-----
From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of John Creahan
Sent: Friday, February 19, 2021 11:34 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] durable power of attorney lost original in real estate deal

Does RCW 64 -- or any other statute -- require an original POA to record the property? I don’t think that that the title company can impose its own restrictions because RCW 11.125.060(4) provides that "Except as otherwise provided by statute other than chapter 209, Laws of 2016, a photocopy or electronically transmitted copy of an original power of attorney has the same effect as the original."
My $.02.
John

John Creahan
www.cairn-law.com
206-578-5877
Fremont office:
3417 Evanston Ave. N, Suite 312
Seattle, WA 98103

-----Original Message-----
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Candace Wilkerson
Sent: Friday, February 19, 2021 9:51 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] durable power of attorney lost original in real estate deal

Doug, does the power of attorney have any language stating that a copy is to be accepted as having the same authority as an original?  My powers of attorney say this:

"Persons dealing with my attorney-in-fact may rely fully on a photocopy of this document as though the photocopy was an original."

Maybe if yours contains the language I mention above you could make an argument for recording the copy.  I haven't tried this before, but it's a thought.

Best,
Candace Wilkerson

-----Original Message-----
From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Douglas Owens
Sent: Friday, February 19, 2021 8:34 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] durable power of attorney lost original in real estate deal

Dear list mates, I have a client who is in a coma, and who executed a durable power of attorney four years ago, and the agent is capable of acting but cannot locate the original of the signed power of attorney.  A real estate sale is pending and the comatose client is a seller, but the title company indicates although it will accept the POA for the agent to execute the deed it requires that the original be recorded.  A copy is available but it clearly is stamped “duplicate.”  Is there any method to achieve the equivalent that anyone knows of?  I have searched the act and cannot find one.  Is a lawsuit to compel the title company to accept the power of attorney likely to succeed without the original?  Thank you for your attention.  Yours truly, Doug Owens

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