Legal Question in Real Estate Law in California

I was on a deed to a property with my mother and was removed from the deed and have questions. I live in California. A quitclaim deed was filed stating there was a power of attorney so my mother could put the property in her name. I requested all pertinent documents but there is no copy of the POA attached to the quitclaim deed removing me. The Quitclaim deed was notorized but the notary is a personal friend of hers. Should the POA been attached to the Quitclaim deed when filed by Riverside County? I also show the county does not have any POA on file pertaining to this issue. Do I have any legal recourse on this matter?


Asked on 8/01/12, 10:29 am

1 Answer from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Yes, you do. First, if there were a power of attorney appointing your mother as your attorney-in-fact, you'd know about it, because you'd have signed it!

Second, an attorney-in-fact (the person authorized to act under a power of attorney) must act on behalf of the principal (you).....self-dealing and benefitting from transactions is permissible only if it is incidental to a transaction that primarily benefits the principal. Therefore, your mother, as your attorney-in-fact, probably violated the law if she transferred your interest in the property to herself. See Probate Code sections 4232 re conflicts of interest and 4266 re fiduciary duties.

Civil Code section 1095 requires that a deed executed by an attorney-in-fact must be signed with the name of the principal and his own name as attorney-in-fact. If not signed in accord with the law, it may be ineffective to convey the title if the principal.

It is not clear whether a recorded deed executed by an attorney-in-fact under a written but unrecorded power of attorney imparts constructive notice to third persons. The issue was left open in Fogarty v. Sawyer (1863) 23 Cal. 570. There is no statutory requirement that I know of requiring a power of attorney to be attached to a deed at the time of recording

Nevertheless, it's pretty clear from the limited facts given, that your mother's removing you from title (not "deed") was outside her powers as attorney in fact, if indeed she even were.

So, on the surface at least, it looks as though you have been the victim of a highly improper act, possibly fraud, but almost certainly an abuse of the authority given by the power of attorney (if one was ever in fact given).

Please contact me directly if you'd like to discuss what can now be done...no charge. I'm pretty sure corrective action will require a trip to court and a suit against your mother, if a closer look at the facts verifies my impression.

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Answered on 8/01/12, 1:57 pm


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