Debit power of attorney
An encumbrance power of attorney is a clause contained in the property purchase agreement that authorizes the notary to encumber the property with a mortgage .
General
A debit power of attorney is only required if the property buyer wants to finance the acquisition of the property before the property is transferred and the lender requires a loan security for this. Then provides for the real estate financing , the lending by mortgage ( mortgage , mortgage or land charge ) on the buyer to be acquired property ( collateral object ) to. As this land is still legally the property of the seller and only these loads may make of mortgages and the purchase price before the transfer of ownership at the notary must be present, the practice has found a contractual structure in land purchase contract that adequately reflects the interests of buyers and sellers.
content
For this purpose, the seller grants the notary the power of attorney to encumber the property to be sold prior to the transfer of ownership - regardless of the legal validity of the property purchase contract - in the notarial deed of the notary public with one or more mortgages up to the amount of the purchase price and to apply for their entry and to approve . The liens received the rank prior to be entered in favor of the buyer priority notice . The buyer enters his payment claims against the mortgage creditor to the Seller and has the mortgage creditors irrevocably to the amount to an escrow account to be transferred. The mortgagee may only dispose of the mortgage insofar as he has made payments with repayment effect on the purchase price debt of the buyer.
Securing the seller
Such encumbrance of the property with mortgages prior to the transfer of ownership is risky for the seller because the property still belonging to him is formally liable for mortgages in favor of the buyer and therefore a foreclosure by the mortgagee against the seller's assets would be directed. In order to rule out this, the buyer's lender will transfer the loan amount by way of the trust order to the notary's trust account and only then will the notary apply for the real estate lien to be entered in the land register. By assigning the payment claims, the seller is now a creditor to the lender, who in turn is obliged to pay out to the notary's trust account through the trust order. Once this payment has been made, the notary must carry out the transfer of ownership and register the property liens. As a result, the buyer is now the new owner and security provider , the mortgagee has a mortgage on the property of his borrower and the seller receives the purchase price.
literature
- Gunter Peter, Stefan Menke: The Stockmanns buy a high-quality property . In: Bankfachklasse, Issue 1/2010, pp. 4–12 . Gabler-Verlag, Wiesbaden 2009, ISSN 0170-6659
