Sale of property under an irrevocable power of attorney
The office of lawyer Ali Barakat in Baghdad sets out the rules on selling immovable property under a power of attorney that is described in practice as irrevocable, under Civil Code No. 40 of 1951 and Real Estate Registration Law No. 43 of 1971. The page presents the statutory texts. It is not a model power of attorney.
Revocation where a third party's right is attached to the agency
Agency is a contract by which a person appoints another to act in that person's place in a lawful, specified disposition, under article 927 of the Civil Code. The agency ends on the death of the agent or the principal, or if either of them loses capacity, or on completion of the work entrusted, or on expiry of the term fixed for the agency, under article 946. The principal may revoke the agent or restrict the agency, and the agent may resign, and no agreement to the contrary is effective; but if a third party's right is attached to the agency, revocation or restriction is not permitted without that person's consent. Revocation does not end the agency until the other party has knowledge of it, under article 947.
That is the meaning around which the description of a power of attorney as irrevocable turns in practice. It is not an abolition of the rule of revocation. It is a limit that applies when a third party's right is attached to the agency. The Real Estate Registration Law sets this out in more detail for immovable dispositions. The agency ends on the death of the principal or the agent, or if either of them loses capacity, even if a third party's right is attached to it, or on completion of the disposition or expiry of the term, under article 199, first paragraph. The principal may revoke the agent or restrict the agency, and the agent may resign, but if a third party's right is attached to the agency, revocation or restriction is permitted only with that person's consent or on proof that the price has been received, shown by a written declaration certified by an official body or made before the official at the Real Estate Registration Department, under paragraph 2.
The principal and the agent must both have full capacity, under article 196. Immovable dispositions may not be carried out under a power of attorney unless the type of disposition is stated expressly, in unlimited or limited form, in the power, under article 197. The agent may not use the power in that agent's own favour or in favour of a minor child, under article 198.
What the Real Estate Registration Department requires, and that the sale concludes only by registration
A power of attorney is not accepted at the Real Estate Registration Department if fifteen years have passed since it was made, unless the principal confirms it, under article 201. The agent is required to declare that the principal is still alive, of full capacity, and continuing the appointment, when carrying out immovable dispositions in the principal's name, under article 202.
If the sale is made under a power of attorney, the power should state the location and sequence number of the property sold, the price, the buyer's name, and the principal's acknowledgment of receipt or the agent's authority to receive the price, unless the appointment contains unlimited authority to sell, in which case the agent may sell in the manner that agent sees fit and may receive the price, under article 205, first paragraph.
All of this organises the power of attorney as an instrument of representation before the Real Estate Registration Department. The sale of the property itself does not conclude unless it is registered and the form required by law is fulfilled, under article 508 of the Civil Code and article 3 of the Real Estate Registration Law. A power of attorney, even where a third party's right is attached to it, does not take the place of registration, and it does not transfer ownership merely by being made or certified. The difference between a promise and a completed sale is explained on the page A promise to sell and a completed sale.
| Article | Period or time rule |
|---|---|
| Registration Law, 201 | A power of attorney is not accepted if fifteen years have passed since it was made, unless the principal confirms it |
Legal basis and sources
- Civil Code No. 40 of 1951 (Iraqi Official Gazette, issue 3015 of 8/9/1951) — Articles 508, 927, 946 and 947
- Real Estate Registration Law No. 43 of 1971 (Iraqi Official Gazette, issue 1995 of 10/5/1971) — Articles 196–202 and 205
Frequently asked questions
Does an irrevocable power of attorney transfer ownership of the property without registration of the sale?
No. A sale of immovable property does not conclude except by registration at the Real Estate Registration Department, under article 508 of the Civil Code and article 3 of the Real Estate Registration Law. The power of attorney is an instrument of representation, even where a third party's right is attached to it under article 947.
When may the principal not revoke the agent?
If a third party's right is attached to the agency, revocation or restriction is not permitted without that person's consent, under article 947 of the Civil Code. For immovable dispositions, article 199 of the Real Estate Registration Law adds that revocation or restriction is permitted only with the third party's consent or on proof that the price has been received, shown by a certified written declaration.
Is a power of attorney that was made a long time ago accepted?
A power of attorney is not accepted at the Real Estate Registration Department if fifteen years have passed since it was made, unless the principal confirms it, under article 201. The agent is required to declare that the principal is still alive, of full capacity, and continuing the appointment, under article 202.
Related topics and articles
- 01A promise to sell and how it differs from a completed saleA preliminary agreement under Civil Code article 91, and a completed sale of land that concludes only by registration under articles 90 and 508.
- 02Real Estate Registration Departments in Baghdad, Karkh and RusafaFiling at a Baghdad Real Estate Registration Department under Law 43/1971: venue follows the department's area of work, the property and its register.
- 03Sale or mortgage and the real-estate tax step in governorates not organised in a regionSale or mortgage and the real-estate tax step in governorates not organised in a region, under Law 162/1959 and Land Registration Law 43/1971.
- 04What a landlord reviews before and after a lease in BaghdadWhat a Baghdad landlord reviews before and after a lease under Rent Law 87/1979 and the Civil Code.
- 05Ending co-ownership of shared propertyHow co-ownership of property ends under the Civil Code: agreed partition by registration, a First Instance claim, or sale if it cannot be divided.