The definitive guide to power of attorney for property in India

A power of attorney is a vital legal document for property and real estate matters. However, most people don't understand it or give it importance, and this ignorance can lead to serious legal problems. This comprehensive guide will answer all your queries about power of attorney for property.

 

What is a Power of Attorney, and how does it work? 

A power of attorney allows another person (called an agent) to act for the principal if the principal cannot make the decisions. The principal can determine the authority granted to the agent based on the requirements. The "Power of Attorney Act 1882" governs any Power of Attorney document. This act was passed on 1 May 1882 and applied to India as a whole, except Jammu & Kashmir. 

A power of attorney can cover all or some aspects of money, property, and asset management, as well as personal care, and management of company affairs, etc. The authority granted to the agent by their principal can make a power of attorney either general or specific. Below are details about the different types of Power of Attorney. This guide focuses on the power of attorney to protect property in India. 

Why is the Power of Attorney important? 

Modern business and transactional growth have reached levels that are far beyond what our forefathers could have imagined. People in business, leaders, and professionals have become busier than ever, and delegating more functions is becoming more critical. The purpose of a Power of Attorney is to delegate essential tasks that require legal authorization. To avoid any inconvenience or expense in the future, the principal should exercise caution when authorizing an agent. 

Difference between Power of Attorney & Will 

Although the Power of Attorney is a very important document in real estate and property matters, it is often misunderstood. People often confuse the Power of Attorney (PoA) with a Will (Probate), although they are both legal documents, they serve different purposes. A person's death is when a will becomes effective. A power of attorney is valid for the life of the person and ends when he dies. POA and a Will do not complement one another, but they can be used in conjunction. Both address different aspects of your life and are required for estate planning to be effective. 

Types of power of attorney 

1. General Power of Attorney 

This type of Power of Attorney allows the principal to authorize the agent to perform certain acts that are generally related to the subject matter. The agent is granted broad decision-making powers. This instrument was used to execute property sales in India until the Supreme Court outlawed them in 2011. A General Power of Attorney is a legal document that grants rights to the seller for the use and sale of the property. To avoid any legal problems later regarding the ownership of your property, you must sign a General Power Of Attorney for Property in India. 

2. Special Power of Attorney 

A special power of attorney allows the principal to appoint an agent to perform a specific act or set of actions. This limits the options available to the agent. You can make multiple special POAs to diversify or reduce risk. Instead of one General PoA authorizing only one agent to perform all tasks, you can create several separate POAs with different agents. 

3. Durable power of attorney 

A Power of Attorney generally states that an agent's power ceases if the principal becomes mentally incompetent unless otherwise specified in the document. Durable power of attorney is a Power of Attorney that stipulates that it will be in force in the event of the principal becoming mentally incapacitated in the future. 

How did GPA make property sales possible? 

A buyer must pay the registration fee and stamp duty on the transaction. While a seller must pay capital gains tax, the information recorded on a sale deed becomes public and can be used to uncover Benami transactions at any time. 

Buyers and sellers often agree to a three-step plan to complete the sale transaction. The first step is to create an agreement for sale (not to be confused with a sale deed), which sets the rules for the sale. The seller would then create an irrevocable POA that gives the buyer absolute control of the property's management. The seller would then leave the property to the buyer by a will. 

A hybrid system was developed to avoid the lengthy process of obtaining permissions and to avoid paying a large part of the price to the Delhi Development Authority (DDA) as an unearned rise. Upon receiving the agreed consideration, the holder of the flat would deliver the possession of the flat to the purchaser and execute this document.

This ownership transfer type was increasingly popular with people awarded units through the DDA's housing programs. They then sold them at astronomical prices to other interested parties. 

Powers under Powers of Attorney for Property 

A Power of Attorney for Property in India may authorize an agent to exercise any or all these powers:

●     Leasing, bargaining, selling, collecting rents, borrowing, mortgage

●     Manage, settle and compromise all matters related to real estate

●     Execute contracts, deeds and bonds, mortgages notes, notes, cheques, drafts, and money orders

●     Sue on behalf of the principal 

Validity and duration of power of attorney 

A power of attorney shall continue to be in effect until:

●     The principal or agent may expressly withdraw their consent by sending a written notice or

●     The principal is mentally incapacitated or declares bankruptcy, or dies.

●     The PoA or equivalent completes the specified act.

●     End of the period of fixed power granted to the principal, as defined in the deed.

●     In the event of divorce or legal separation, if a principal has designated his spouse as his agent. 

Execution of Powers of Attorney 

●     Eligibility - Any person can execute a power of attorney if they are competent to enter into a contractual agreement. While executing power of attorney, a company must comply with the "Articles of Association" and its common seal.

●     Legal Document - According to Indian Law, Power Of Attorney is a legally binding document that both the principal and agent must sign. This document must be carefully drafted using legal terms and clearly defining the scope, objectives, and responsibilities.

●     Notarization - A power of attorney must be signed by and notarized in the presence of a certified notary advocate. To be able to certify the document, you will need to present your ID to the notary. The document must be signed and authenticated by either the registrar, sub-registrar, or administrator of assurances according to the "Registration Act, 1908".

●     Register - Power of attorney is not required unless it creates interest in immovable property, i.e., Charge in favor of the agent or the donee.

●     Stamp Duty - A power of attorney can be charged under the 'Indian Stamp Act 1899'. The principal or donor must pay a stamp duty compulsorily at the office of the jurisdictional register. 

Conclusion 

A Power of Attorney, which is a very important legal document, can be used as evidence in court in case of violation. The principal should carefully choose an agent that is trustworthy and who will not use his personal property to benefit himself.