Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the May 21, 2012 mailing of "Constructive Notice":

Recording Military Powers of Attorney

The U.S. Court of Appeals for the Sixth Circuit has construed the the federal statute concerning the recording of military powers of attorney. In Bartholomew v. Blevins, No. 10-6352 (6th Cir., May 17, 2012), the Court determined that 10 U.S.C. §1044b does not require a local recording officer to accept a copy of an otherwise facially sufficient military power of attorney.

The statute provides that a military power of attorney “is exempt from any requirement of form, substance, formality, or recording that is provided for powers of attorney under the laws of a State ...”  Mr. Bartholomew tried to record an original deed and mortgage in the local land records along with a copy of a military power of attorney executed by his wife who was serving overseas. The county clerk’s office refused to accept the copy and, therefore, the deed and mortgage as well.  Mr. Bartholomew explained that it wasn’t possible to obtain the original p/o/a due to his wife’s deployment and directed the clerk to the statute. This §1983 action followed and the District Court upheld the county clerk’s determination. The Court of Appeals affirmed.

The Sixth Circuit distinguished “a copy of a notarized instrument from an original notarized instrument.” Thus, the “unnotarized copy lacks an essential element of a military power of attorney and does not qualify for [the statute’s] protections.” Even though the clerk’s office claimed it was following “a general state policy of requiring original instruments,” the Sixth Circuit panel found that “the state entity did not add requirements of form, substance, formality, or recording” [emphasis in original].

The dissenting judge argued that the language of the statute impels the opposite result.  He points out that for a member of the armed forces in a war zone, “it is hardly feasible to mail the original home. ... The more likely scenario is that the power of attorney would be sent as an attachment to an email.”