[1993/oagheade.htm]

OAG 93-82

December 10, 1993

Hon. Walker C. Cunningham, Jr.

Assistant County Attorney

Jefferson County Kentucky

1001 Fiscal Court Building

Louisville, Kentucky 40202

Re: Whether Or Not a Power of Attorney For Purposes of Transferring Title to an Automobile Must be "Recorded or Lodged for Record."

Dear Mr. Cunningham:

By letter of May 4, 1993, you asked that this office provide an opinion concerning whether or not the title of an automobile is required by law to be "recorded or lodged for record," and if so, whether or not a "power of attorney" to be used in transferring such a title must be recorded or lodged in like manner.

In our view, a certificate of title for an automobile is not required by law to be "recorded or lodged for record" within the meaning of KRS 382.370, and, therefore, a power of attorney to transfer ownership of a vehicle is not required to be "recorded or lodged for record" with a county clerk, within the meaning of that phrase as used in KRS 382.370. Discussion follows.

By way of background, as we understand it, the Jefferson County Clerk has relatively recently adopted a policy that a "power of attorney," to be exercised by one attempting to effect transfer of title to an automobile to another, is an instrument that must be "recorded or lodged for record."

Apparently the clerk's policy is based upon language in KRS 382.370, together with the conclusion that a title to an automobile must be "recorded." Your letter indicates that the County Clerk's position is that the title is recorded pursuant to the statutes when it is entered in the statewide AVIS (Automated Vehicle Information System) network maintained by the Kentucky Transportation Cabinet, and, therefore, the power of attorney to effect transfer of title of an automobile must also be recorded.

KRS 382.370 provides:

Powers of attorney to convey or release real or personal property, or any interest therein, may be acknowledged, proved and recorded in the proper office, in the manner prescribed for recording conveyances. If the conveyance made under a power, is required by law to be recorded or lodged for record, to make the same valid against creditors and purchasers, then the power must be lodged or recorded in like manner, and no such power so recorded shall be deemed to be revoked by any act of the party by whom it was executed, except from the time when there has been lodged for record in the office in which the power is recorded a written revocation, executed and proved or acknowledged in the manner prescribed for conveyances, or a memorandum of revocation made on the margin of the record thereof, which memorandum is signed by the party executing the same, and attested by the clerk.

(Emphasis added.)

It will be observed from the emphasized language of KRS 382.370 (above), that, if an automobile certificate of title is required to be "recorded or lodged for record," as that phrase is used in KRS 382.370, a power of attorney to be exercised to transfer ownership of an automobile will also be required to be recorded or lodged for record.

KRS 186A.065 and KRS 186A.095, which were enacted in connection with Kentucky becoming a "title state," require, in substance, that an owner of a vehicle make application for, and obtain issuance of, a certificate of title. Since the title instrument is issued by the state, it is of record with the state upon issue, without need for it to be separately "recorded or lodged for record." Further, no statutory provision expressly requires that a certificate of title of an automobile be "recorded or lodged for record." There is, for example, no statute regarding an automobile title that specifically requires, by express terms, that an automobile title must be "recorded or lodged for record," as for example is provided by KRS 382.080(1) (see below).

KRS 382.080(1) provides:

No deed conveying any title to or interest in real property, or lease of oil, gas, coal or mineral right and privilege, for a longer time than five (5) years, nor any agreement in consideration of marriage, shall be good against a purchaser for a valuable consideration without notice thereof, or any creditor, unless the deed is acknowledged by the party who executes it, or is proved and lodged for record in the proper office, as prescribed by law.

(Emphasis added.)

There is no provision of the statutes which requires that an automobile certificate of title be "recorded or lodged for record" so as to bring such instrument under the purview of KRS 382.110. We note also that KRS 64.012, which establishes fees for various services of the county clerk, does not provide for a clerk's fee for recording or lodging for record a certificate of title to an automobile.

Based upon the points set forth above, we find that a certificate of title for an automobile is not required by law to be "recorded or lodged for record" within the meaning of KRS 382.370, and that, accordingly, a power of attorney to transfer ownership of an automobile is not required to be "recorded or lodged for record" within the meaning of that phrase in KRS 382.370.

Sincerely,

CHRIS GORMAN

ATTORNEY GENERAL

Gerard R. Gerhard

Assistant Attorney General