Power of AttorneyLast updated: 14 November 2020
In order to participate in a group land buy at Fruit Haven, you will need to be represented legally. This is not only for the purchase of the property, but for many important administrative tasks, including receiving your funds for the property purchase, developing the property and spending the property development funds on your behalf. We use the same template POA document for everybody, and it is only valid within Ecuador - it does not give power to represent you in any other countries. The document is a "general power," which has a set list of powers, which are necessary for various tasks related to purchasing and managing the property.
In granting a power of attorney, you are the principal, and the person you are granting it to is the attorney-in-fact. In Spanish, you are the mandante or poderdante, and the attorney-in-fact is the mandatario or apoderado.
The power of attorney document has is of indefinite duration (since we will need to retain these powers for administering the property on your behalf.) These are the English translations of the clauses, for your reference. The bold + italic text explains the purpose of the power being granted.
List of Clauses
List of Clauses
It is my free will to confer in effect a general power, ample and sufficient, which by law is required in favor of [attorneys-in-fact], for their own personal rights, so that in my name and representation they may realize all acts and processes related to and necessary for the administration of my assets. The procedures to be carried out are:
Administer without limitation all of the movable and immovable assets, real and personal rights, shares, businesses, holdings, and others, present and future, that are pertinent to the principal's personal assets, being able in that sense, with the conditions and for the accounted or deferred price deemed pertinent, to exercise, order, concede and accept purchases and sales, swaps, donations, contributions, payment and payment sessions, amortizations, mortgages, pledges, subrogations, segregations, parcelations, divisions, bail, transactions, commitments, etc. - Essentially, the power to buy and sell assets (for example property, and the tools/vehicles/etc we may purchase on behalf of the owners) and perform various other transactions and processes relating to those assets now and in the future
Constitute mortgage for any immovable property asset of the principal to obtain credits both in favor of natural persons and in favor of any financial entity - This power would not be necessary for most people, but if you were ever successfully sued or went into judgment from a debt in Ecuador, we could potentially require this power to put a lien or mortgage on the property on your behalf to avoid losing it.
Acquire for the principal any title, movable or immovable assets, real and personal rights, shares and holdings, etc. - Fairly self-explanatory - to purchase properties and assets.
Obtain all construction permits that may be necessary in whichever Decentralized Autonomous Government of the country to construct building in the principal's lands in the name of the principal. - Note that "Decentralized Autonomous Government" is how they refer to the parroquial, county, and provincial governments in Ecuador.
Rent out the acquired assets, sign rental contracts, receive the funds from the rentals and deliver the respective receipts, etc. - In each property we may rent out tools to PHL owners or other Fruit Haven properties, or we may rent rooms in the community house, following the preferences of the property owners.
To be in charge of managing the perfect maintenance of the property, either the attorney-in-fact or the tenant. - Managing the property maintenance or charging others with its maintenance.
To request basic services (electric, internet, etc) and perform any process in the utility companies and municipalities that pertain to the basic services.
Sign all manner of contract in the name and responsibility of the principal. - This allows us to sign the community contract (the legal contract between co-owners of the horizontal property) and any other contract that may become necessary in the future.
To sign public titles if the naturalization of the act or contract requires it, such as personal guarantees, receipts, etc.
In the case of the acquisition of a motor vehicle, the attorney-in-fact may perform any vehicular revision or process at the National Transit Agency or any government organization pertaining to the vehicle, including registering it.
Perform any processes or payments required for the Internal Revenue Service - Paying taxes, etc.
Pay off creditors, decide form and terms of payment, remove liens, etc.
Recognize, accept, pay, or charge any debt or credit, for capital, interest, dividends, amortizations, signing receipts, balances, etc.
Perform renewals of loans in banks, cooperatives, etc. - In the case that an owner requires a loan or other financial instrument such as CD etc in a local financial institution.
Perform processes/paperwork in various local banks and financial institutions (named in the document by their proper names), including opening/closing and administering accounts, receiving wires, depositing and withdrawing money, etc. - The general power should include this power to satisfy the typical AML/KYC requirement that we can receive and administer funds in the name of the principal rather than any third party
Send/receive money transfers, manage savings and other accounts, receive funds, deposit and withdraw funds internationally, generally operate with financial institutions in Ecuador. - See above, basically the same clause twice to satisfy that we legally have the ability to receive and manage funds on your behalf.
Send, accept, etc, cash payments, checks, bills of exchange, future payments, etc.
Order judicial processes and represent the principal in court or in any judicial process - To represent the principal legally if it became necessary.
Note that with a power of attorney document, the attorney-in-fact must act according to the will of the principal, and any transgression against the principal's will is considered "abuse of confidence" under Ecuadorian law.
Frequently Asked Questions
How much does it cost to complete this document?
We charge a fee (usually around $30) to make the document; you will see this charge in the form you fill out after being accepted as a trustee. This fee is to pay the Ecuadorian attorney who drafts the document. Ecuadorian notaries require each document to be signed by a lawyer. For people using the "alternative legalization instructions," this fee goes towards drafting the English version of the POA with your data.
Ecuadorian embassies and consulates usually charge $30-$40 to notarize the document. Sometimes they will require you to bring a translator (anyone who knows both English and Spanish) and the translator will have their own fee. Then it will cost around $80-$105 to send the document here via DHL or Fedex express mail. We can't recommend using postal service because Ecuador's post office is very slow and unreliable (and now mostly non-existent.)
I live very far from an Ecuadorian consulate or embassy. What are the "alternative legalization instructions" and why does it cost $300-$400 extra?
In this case, we will send you an English version of the same document. You will have this notarized by any public notary in your country. Then you will mail it to your department of state / secretary of state (in the US, this would be your state's sec. of state, not the federal state department) to be authenticated / apostilled.
After you received the apostilled document, you mail it here via DHL or Fedex ($80-$105 USD). We will have it translated to Spanish by a certified translator and then notarized (around $200 total.) At this point the document is legal to use here.
I am going to be living at Fruit Haven full time. Also, I plan to be there in person to sign the sale contract. This means I do not need to sign a POA, right?
You still need it. As explained above, we need the power of attorney to perform many different tasks, and to show that we have the owners' permission to continually manage the property. We cannot rely on someone's word that they will always be available to sign documents and they will not leave / move away. Nor can we (or the other property owners) rely on someone's word that they will sign the community contract after they buy in. We did have one case of an unscrupulous person deciding right after they bought in that they would refuse to sign the community contract. Fortunately they sold their share rather quickly.
Another function of the POA is to reduce legal risk for the administrators. It needs to be very legally clear that we are performing all tasks relating to administration & development of the property on behalf of all owners, with the express written permission of the owners as shown in the power of attorney document.
I don't like X clause. Can I remove it?
Maybe, but you need to let us know before you fill out the form and send the money for the POA. Once the wheels are moving, and the attorney has already drafted the document, any changes will cost extra.
Seed investors may get special consideration in terms of modifying or customizing certain clauses. For regular buyers of small shares, we may make what changes we can, but some requested changes may be below what we consider the minimum legal representation to participate in a Fruit Haven group land buy.
Anyone who signed a power of attorney document before December 2, signed a previous version written by a different lawyer. The powers given are almost identical, but the current version is simpler and more legally correct.