Did a Kentucky power of attorney for transferring a car title have to be recorded with the county clerk?

Plain-English summary

In 1993, Kentucky's Attorney General concluded that a power of attorney used to transfer an automobile did not have to be recorded with a county clerk under KRS 382.370. That statute tied the recording of a power of attorney to whether the conveyance made under it had to be recorded or lodged for record. The AG found no such recording requirement for an automobile certificate of title.

The Jefferson County Clerk had treated entry of a vehicle title into the statewide AVIS system as recording that triggered the power-of-attorney requirement. The AG distinguished the state's issuance and retention of a title from the separate act of lodging an instrument for record. It also observed that the county-clerk fee statute did not list a fee for recording an automobile title. The answer was limited to recording under KRS 382.370; it did not decide every requirement for a valid title transfer.

Currency note

This opinion was issued in 1993. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical summary

Vehicle owners and people using powers of attorney

The AG said a power of attorney used to transfer an automobile did not need to be recorded or lodged for record with the county clerk under KRS 382.370. The opinion addressed that recording question, rather than the form or execution of a power of attorney.

County clerks and title-transfer staff

The opinion rejected the view that an automobile title's entry into the state's AVIS system amounted to the kind of recording described in KRS 382.370. It reasoned that a title issued by the state was already of record with the state on issuance and that no statute expressly required it to be separately lodged for record.

Common questions

Did Kentucky's AG require county recording of a power of attorney to transfer a car in 1993?

No. Because the underlying automobile title did not have to be recorded or lodged for record, the AG said KRS 382.370 did not require recording the power of attorney used for its transfer.

Did the AVIS vehicle-title entry count as recording under KRS 382.370?

The AG said no. State issuance and entry of a certificate of title did not create a separate statutory duty to record or lodge the title with a county clerk.

Why did a property deed receive different treatment?

The opinion contrasted vehicle titles with KRS 382.080(1), which expressly addressed lodging certain real-property deeds for record to protect them against purchasers and creditors. The AG found no comparable express command for an automobile certificate of title.

Background and statutory framework

Jefferson County's assistant county attorney asked about the clerk's policy of requiring recording of powers of attorney used for automobile title transfers. KRS 382.370 permitted recording powers of attorney and required it when the underlying conveyance had to be recorded or lodged for record to be valid against creditors and purchasers. The AG read KRS 186A.065 and KRS 186A.095 as requiring application for and issuance of vehicle titles, without requiring separate recording of those titles. It also noted that KRS 64.012 did not provide a clerk's fee for recording an automobile title.

Citations and references

• KRS 382.370: recording powers of attorney when the underlying conveyance must be recorded.
• KRS 186A.065 and KRS 186A.095: vehicle-title application and issuance provisions discussed by the AG.
• KRS 382.080(1): express recording rule for specified real-property instruments, used as a contrast.
• KRS 382.110 and KRS 64.012: additional recording and county-clerk fee provisions discussed in the opinion.

Source

• Landing page: https://www.ag.ky.gov/Resources/Opinions/Opinions/OAG93-082.htm

Original opinion text

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