Is the Vendor Actually the Owner? Power of Attorney, Deceased Estates, and Title Risks in Victoria
/By David Dawn, Licensed Conveyancer – Victorian Property Settlements
Most buyers assume the person selling a property is the person who owns it. But that isn’t always the case — and when it’s not, you need to tread carefully. In Victoria, sales by attorneys, executors, or family members acting “on behalf of” the registered owner are common, but they introduce legal complexity that can delay, disrupt, or even invalidate a property settlement.
Whether you’re a first-time buyer or seasoned investor, understanding who you're really buying from is essential to protect your interests — especially if the contract involves:
A power of attorney sale
A deceased estate
A sale under trust or by a company director
A seller not listed on title
At Victorian Property Settlements, we’ve handled dozens of transactions where something didn’t smell quite right — and we’re here to explain how to spot red flags and stay safe.
⚖️ 1. The Title Search Is Your First Clue
Every conveyancing review starts with a title search — and one of the first things we check is whether the person named in the contract as the vendor actually matches the registered proprietor on title.
When they don’t match, we ask:
Is the vendor acting under a valid Power of Attorney?
Has the probate or letters of administration been granted if the vendor is deceased?
Is the seller a trustee or company director with authority to act?
If none of these apply — or no evidence is provided — it’s a red flag that the vendor may not have the legal right to sell the property.
🧾 2. Power of Attorney Sales – What Must Be Disclosed?
Where someone is selling on behalf of a family member (often elderly), they may be relying on an Enduring Power of Attorney (Financial).
This is legal — but only if:
The Power of Attorney was validly executed and has not been revoked
The attorney is acting within their powers, and in the best interests of the owner
The POA instrument is available for inspection
📌 Our policy: We request and inspect the POA document, ensure it was signed correctly (with witnesses), and check for registration if it relates to land transactions.
🔍 Common issue: Children acting as attorneys sometimes sign contracts before registering the POA — causing delays and even contract invalidity.
⚰️ 3. Deceased Estates – Probate or Letters of Administration Must Be Granted
If a person has died and the property remains in their name, the Executor named in the Will (or an Administrator if there’s no Will) can sell the property only after a grant of probate or administration has been made.
Until that happens, any contract signed is unenforceable — it’s not worth the paper it’s printed on.
🎯 Key tip: If a seller claims they are the Executor, ask:
Has probate been granted?
Can we see a certified copy?
Will settlement be delayed if it's not granted in time?
⚠️ If not disclosed, the purchaser may be unable to settle — or stuck waiting for Supreme Court processes.
🧑⚖️ 4. Trustees and Company Directors – Ensure Proper Authority
Where a company or trust is the registered owner, the person signing must be a valid director or trustee with clear authority.
This often arises where:
Properties are held in a family trust or SMSF
Companies act as registered owners or as nominees
There are multiple directors or trustees, but only one is signing
📌 Best practice: The contract should specify the seller’s capacity (e.g. “ABC Pty Ltd as trustee for the XYZ Family Trust”) and include evidence like a trust deed or ASIC company extract.
🚩 5. Red Flags That Should Always Be Checked
Watch for these signs:
Vendor name on contract doesn’t match the Certificate of Title
Special conditions mention probate or “to be obtained” powers of attorney
No explanation is given for why someone else is signing
Auction terms used before probate or POA registration
Selling agent says “the owner’s son is handling everything”
If any of these are present, ask your conveyancer to verify the legal basis for the sale. If you're unsure — don’t sign yet.
✅ What Buyers Should Do
Before signing any contract:
✅ Ask your conveyancer to check the title and vendor identity
✅ Request evidence of POA, probate, or company authority
✅ Add special conditions to cover delays or non-compliance
✅ Avoid Friday settlements (delays in authority can derail same-day funding)
✅ Consider lodging a caveat if risk of fraud or unauthorised sale is present
🛡️ The Bottom Line
Just because someone is holding the pen doesn’t mean they have the power to sell.
At Victorian Property Settlements, we provide a full professional review of contracts to ensure you’re buying from the right person with the right authority. We’ve seen what can go wrong — and we know how to get it right.
📞 Call us on (03) 9783 0111
🌐 Visit: www.victorianpropertysettlements.com.au