Can an out-of-state power of attorney be used to sell real estate in North Carolina?
QUESTION: I’ve been approached by the son of a property owner who lives in Delaware about selling his father’s North Carolina property. The son has his father’s power of attorney and from what I can tell after looking it over, it appears to give the son the authority to list and sell the property. My question is, can an out-of-state power of attorney form be used to sell real estate in North Carolina?
ANSWER: The short answer to your question is “yes.” NC law provides that a power of attorney executed in a state other than North Carolina is valid in North Carolina, provided that when it was signed its execution complied with the law of the other state. See NC General Statutes Section 32C-1-106(c).
Sounds simple enough, right? However, understand that a closing attorney would certainly want some assurance that the POA was in fact signed in accordance with the law of the state where it was signed. What sort of assurance might a closing attorney require? We asked a seasoned NC closing attorney that question and he indicated that he would require an opinion from a lawyer licensed in the state where the POA was signed that (i) the POA authorized the agent to act on behalf of the principal in the sale of real property, and (ii) that the POA was executed in accordance with the signing requirements of that state. He also said that ideally, the legal opinion would be in the form of an affidavit that he could record, along with the power of attorney, in North Carolina.
Practically speaking, it may be simpler and more cost effective for an NC attorney to prepare a North Carolina POA for the out-of-state owner to sign that is specific to the transaction rather than relying on the out-of-state POA to sell the property. If the owner is unwilling to sign a new NC POA, or is incapacitated and therefore unable to sign a new POA, there may be no choice but to rely on the Delaware POA. Advise your potential client up front what the options are and recommend that he speak with an NC real property lawyer if he has any questions.
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