Estate Planning

Powers of Attorney and Real Estate Fraud

By Hull & Hull LLP

To assist real estate lawyers in identifying forged powers of attorney and fraudulent real estate transactions, the Law Society of Upper Canada has provided real estate lawyers with a set of new guidelines and procedures for powers of attorney and real estate transactions.

In order to address the issue of fraudulent transfers of title and mortgages, new registration requirements were implemented last year necessitating law statements by individuals registering real estate documents under the authority of a power of attorney. Paul Trudelle's previous blog of last year describes the new registration requirements.

The new registration requirement and Law Society guidelines have in part been necessitated by the case of Revickzy v Melekinia. Natalia Angelini's blog sets out the background of the case and comments on the possible impact on a solicitor's duties.

The Law Society guidelines include the following suggestions:

• To the extent possible, lawyers avoid the use of  Powers of Attorneys in real estate transactions;
• That when a Power of Attorney is required and a pre-existing Power of Attorney does not exist, the lawyer should prepare the Power of Attorney themselves, meet with the donor and make diligent inquiries to establish that the donor's identity;
• That lawyers for all parties should review Power of Attorney to determine that it is in compliance with legislation;
• That lawyers should use their best efforts to register the Power of Attorney on title and provide a copy of the registered Power of Attorney to the other side; and
• Lawyers comply with the Law Society client identification and verification requirements.

For more information, read Jonathan Morse's blogs on mortgage fraud and how British Columbia is dealing with the issue.

Hopefully, in adopting these practices lawyers can assist in recognizing fraudulent real estate transactions.

Thanks for Reading,

Diane Vieira

Full post as published by Toronto Estate Law Blog on May 13, 2009 (boomark / email).