Is Sale of Property Through Power of Attorney Legal?

There have been numerous cases in Pakistan where the property owner is in a foreign country, and someone in Pakistan has bought their property. This is possible in the case the foreign residing property owner has given someone the power of attorney to make the sale on their behalf.

Graana.com, Pakistan’s smartest property portal, looks at the definition of Power of Attorney in Pakistan and how foreign Pakistanis can get the document.

 

Definition of Power of Attorney

 

A document reading Power of Attorney

 

Power of Attorney, also known as Mukhtar Nama, is used by a litigant (donor/executant/principal) to authorise a designated individual (donee/agent) to represent them in legal matters.

The Power of Attorney (POA) can also be used when the litigant is an overseas Pakistani and has to send a representative in their place in their home country. 

 

The Power of Attorney Act, 1882 defines it as: 

“The donee [Executant] of a power-of-attorney may, if they think fit, execute or do any assurance, instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by the authority of the donor of the power; and every assurance, instrument, and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.”

 

However, the use of POA is not limited to court proceedings; it can be used in legal issues pertaining to taxation and buying, selling, and renting property. 

 

Types of Power of Attorney

 

An infographic showing different types of POA

 

In Pakistan, there are three types of Power of Attorney:

  1. General Power of Attorney
  2. Special Power of Attorney
  3. Legal Power of Attorney

General Power of Attorney

Also known as Mukhtar Nama Aam, the General Power of Attorney is used in a situation where a litigant gives a person the right of representation in its entirety.

That is to say that the representative, on behalf of the litigant, can hire lawyers, sell and purchase assets, and file appeals. 

It should be noted that the executant can specify whether the General Power of Attorney is revocable or irrevocable. In such a case, all terms and conditions of the General Power of Attorney must be mentioned.

 

Special Power of Attorney

The Special Power of Attorney, also known as Mukhtar Nama Khas, allows a person to appoint a representative for a specific  purpose.

This task is to be clearly mentioned on the Special Power of Attorney document. 

Legal Power of Attorney

The Legal Power of Attorney, known as Vakalat Nama in the local language, is a document submitted by a person’s lawyer in court to inform that they will be representing the person in a particular case.

 

Power of Attorney for Sale of Property

 

Property sales staff submit land mortgage contract documents to home buyers for sign.

 

The Courts in Pakistan have legalised the sale of property through Power of Attorney. In (PLJ) 2016 LHR 881, the Lahore High Court ruled  that a representative cannot sell a property without a POA from the executant (the owner of the property). 

Therefore, power of attorney can be used for the sale of property. However, it should be noted that POA is valid only when registered under the Section 17 of Registration Act. In addition, it should be noted that the 2016 Civil Law Case (CLC) 1338 mentions that the property being sold must be clearly mentioned in the POA. 

 

Getting a Power of Attorney in Pakistan

In case both the executant and the representative are in Pakistan, the procedure of getting a POA is as follows:

  1. The POA is to be written on a stamp paper.
  2. It should clearly note the purpose of POA and the property the POA is to be executed for.
  3. The POA is to be attested from a notary or a district judge.
  4. Finally, the POA is registered with the sub-registrar’s office.

 

Special Power of Attorney for Overseas Pakistanis

The process for POA for overseas Pakistanis is different from the one stated above. The process has been stated below.

  1. The Special Power of Attorney is documented on stamp paper.
  2. The stamp paper is sent to the principal, i.e., the person living abroad.
  3. The principal signs  the document and is required to get it stamped from the embassy of the resident country.
  4.  A complete list of documents is submitted at the embassy as per the residential country requirements.
  5. Then, the POA document is sent back to Pakistan.
  6. The POA document needs to be verified and stamped by the Ministry of Foreign Affairs.
  7. Lastly, the document is to be registered with a registrar in Pakistan.

 

Digital Power of Attorney

 

A person uses a stylus to interact with AR files

 

The National Database & Registration Authority (NADRA) has started the service of digital POA with selected missions abroad.

These are given below:

Country City Address Phone No.
United States of America Chicago 333 N Michigan Ave Suit 728, IL 60601 001312 781 1831
United States of America Washington DC 3517, International Court NW, DC 20008 202 243 6500
United States of America Houston 11850 Jones Road, TX 77070 12818902223
United States of America Los Angeles 10700 Santa Monica Blvd, suite 211, Los Angeles, CA 90025 00310-4415114-4410167
United States of America New York Embassy of Pakistan, 12 East 65th Street, NY 10065. (01)-212-879-5800 Ext 229 (fax) 517-6987
United Kingdom London Pakistan High Commission, 34 Lowndes Square, SW1X 9JN. 44-0207-6649200/11
United Kingdom Glasgow 45 Maxwell Dr, Pollokshields, Glasgow G41 5JF +44 7378 790257
United Kingdom Birmingham 10-A, The Wharf Bridge Street B1 2JS
United Kingdom Manchester 137-Dickenson Road M14 5JB 1612251786
United Kingdom Bradford Consul General, 12-A North Parade, BD1 3HT. (00 44 1274) 308062, 308064, 308874

 

How to Get a Digital POA

  1. Make an account on NADRA’s POA portal by providing the requested information.
  2. Authenticate your email by providing the one-time password (OTP).
  3. Initiate the process by submitting the required documents.
  4. The applicant will upload biometrics on the fingerprint form provided.
  5. The applicant will pay the fee of POA and will wait for biometric verification.
  6. Once verified, the consulate will schedule an interview with the applicant.
  7. The applicant will receive a system-generated email from the consulate which informs the applicant of the final consent.

 

Eligibility for Digital Power of Attorney

In order to obtain a digital POA, the following criteria must be met.

  1. The principal/executor must be an overseas Pakistani.
  2. Valid identity documents (CNIC, NICOP, POC) of the principal, witnesses, and attorney.
  3. Valid email address of the principal.
  4. Contact number and postal address in the country of residence.
  5. Biometrics of the principal and 2 witnesses.
  6. Credit or debit card to make payment.
  7. Scanned copy of POA and thumb impressions of principal and witnesses, along with the picture of principal.
  8. Any other documents requested by the POA system.
  9. For attestation of POA, the principal is requested to visit the Pakistani embassy/consulate in person.
  10. In case of multiple missions in a country, the principal is responsible for choosing the mission when applying for digital POA.

 

Fee for Getting a Power of Attorney

The fee of getting a POA can vary greatly depending on the legal agency you register it with. Besides this fee, the official registration fee of the POA is 1% of the total property value.

It should be noted here that the POA is to be printed on stamp paper of Rs.500 to Rs. 5,000.

 

For more information on real estate law, visit Graana blog.

About Muhammad Anees

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