Sale of real estate through public powers of attorney


Many deals involving real estate are made through a power of attorney, where the seller or buyer transfers negotiation powers to the designated person, aiming at completing the transaction.

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However, in the midst of so many negotiations, there is a concern to carry them out safely. And, therefore, some precautions are needed to avoid falling into traps, which we will explain to you below.


However, first of all, let's talk about the power of attorney.


What is Power of Attorney?

Initially, we emphasize that the power of attorney is an instrument of mandate – a type of contract, treated as such in the legislation – in which a trusted individual receives authorization from another to act on his behalf, that is, to represent him. Whoever gains this power must perform the acts in accordance with the interests of the person who delegated this function to him.


It is important to emphasize that the trusted individual who appears in the power of attorney will not be the seller of the property , but rather a representative , since the purpose of this document is to empower a person to REPRESENT a person in a given situation in which he/she was unable to attend.


Even though there are two types of power of attorney (public or private), the only one that will have legal value in real estate negotiations will be PÚBLICA . In addition, it must be prepared in a notary public, having specific content to avoid inconvenience.

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The care that needs to be taken

Even though it appears to appear original and in compliance with the law, you need to verify that the power of attorney is genuine and is formally in order.


After that, you need to try to avoid the following problems:

  1. power of attorney already extinguished; and,
  2. Conflict of interests.

Power of attorney already extinguished? Like this?

The mandate contained in the power of attorney that was presented to you may have already been terminated. This is what happens, for example, with the death of the principal, that is, by the person who has given powers to a third person to carry out the deal. Therefore, it is very important to contact the person who granted the power of attorney to find out if everything is in order.


In addition, other examples of causes that make the power of attorney no longer have effect can be found in article 682 of the Civil Code:

Art. 682. The term of office ends:

I - by revocation or waiver;

II - by the death or interdiction of one of the parties;

III - by a change of state that disables the principal from conferring powers, or the agent to exercise them;

IV - by the end of the term or by the conclusion of the deal.


Also due to the death of the principal – the one who granted the power of attorney – there is an exception and we will tell you what it is!


The exception:

It is possible, by the Civil Code , the mandate in its own cause, that is, a mandate with powers so that the agent himself can receive the right or good of the principal.


This is usually what happens when the purchaser does not want the immediate granting of the deed and receives this power of attorney so that he can, at any time, grant himself the deed of purchase and sale. In this case, the mandate as an exception is irrevocable and is not extinguished even by the death of the principal.


This is what article 685 of the Civil Code provides, see:

Art. 685. Once the mandate is granted with the clause "in its own cause", its revocation will not be effective, nor will it be extinguished by the death of either party, the agent being exempt from rendering accounts, and being able to transfer to him the movable or properties object of the mandate, in compliance with the legal formalities.


And the conflict of interest? What would it be?

The other problem that can occur in the acquisition of real estate with a deed granted by an attorney is the conflict of interest, as mentioned above. In fact, this is what the Civil Code determines:

Art. 119. The transaction concluded by the representative in a conflict of interest with the represented is null and void, if such fact was or should have been known to the person who dealt with it.


We can say that the article cited above is the consecration of the theory of trust and good faith when there is a difference between the will and the declaration.


Thus, if the acquirer knew that the principal did not want the deal as it is being carried out, even if the power of attorney is formally in order and with express powers for the sale of the property, the deal may be canceled within the statutory period of six months .


This period must be counted from the date of regis

 

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tration of the deed, considering that the conclusion of the business with the acquisition of the right in rem, that is, the property, only occurs with the competent registration of the deed with the official of the Registry of Deeds of the District Competent real estate agent.


Thus, it is more than essential to verify the veracity of all documents, analyze and check the limits of the powers granted by the grantor in the power of attorney, and also do not skip any step to ensure that the business has legal value.

 

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