Loss Of Power
Friday, February 15, 2013
Orlando REALTOR® | January/February 2013
Beware the spouse bearing
a power of attorney
By Grace Anne Glavin, Esq.
Very often, a REALTOR® working to list a property encounters a situation wherein only the husband or only the wife are available to discuss listing terms and prepare a seller’s disclosure regarding the listing of the property. The available spouse (let’s assume it’s the husband for this example) who is dealing with the REALTOR® states that his wife is out of town or out of the country, and he produces a power of attorney prepared for the purpose of allowing him to sign her name to a listing agreement and to close on selling the house.
When is it prudent to rely on this power of attorney? Does the REALTOR® have any factual information as to whether the wife is merely absent or actually is separated or divorced from the husband?
Effective October 1, 2011, Section 709.2109(2) Florida Statutes states that an "agent” (the legal term for designated signer) loses all authority to sign between a husband and a wife when an action is filed for divorce, annulment, or legal separation between the agent and the "principal” (the absent spouse setting up the power of attorney). The only exception to this rule is when the actual words of the power of attorney form specifically allow for continued validity past divorce, annulment, or legal separation.
At closing, the title company or attorney’s office settlement agent will have to confirm by affidavits to be recorded not only that the husband and wife have been continuously married since the date of execution of the power of attorney, but that no action for divorce, annulment, or legal separation has been filed.
Florida law has no provision for a legal separation, but other states do. Therefore, when dealing with property owned by a husband and wife, please make early inquiry as to whether they are in the middle of a divorce, annulment, or legal separation before believing that one spouse will be able to sign at closing for the other spouse. When in doubt, of course, seek the guidance of a real estate attorney to avoiding wasting your time and resources on a listing that could never close. If there is no valid power of attorney, insist on direct communication with the absent spouse to obtain assurance that he or she is equally interested in selling.
CFREC provides this column on real estate law issues as a service to ORRA members to provide a general understanding of the law on various topics of interest, not as a substitute for individual legal consultation, and should not be relied on in specific situations without consulting with a real estate attorney. For more information, please visit www.centralflrec.com.
Grace Anne Glavin, Esq., Law Offices of Grace Anne Glavin, P.A., and Mortgage Title Company, can be reached at email@example.com. She is also a founding board member of the Central Florida Real Estate Council.