The preparing of the legal documents for the sale or transfer of ownership of land or other property, such as a car or home is know as conveyancing. The actual conveyance involves three stages: The Pre-Contract Stage, the Contract Stage and the Conveyance /Transfer of Legal Title. In the Pre-Contract Stage the transfer and creation of any interest in property, especially land, is one of the most important transactions.
This is one of the most critical stages since when completed it cannot be easily reversed by the parties to the transaction. Therefore, both parties must be cautious. The law requires that both parties act responsibly and make appropriate inquiries before entering into any contract.
The form of inquiries
The following are means by which a proposed purchaser of property can protect his/her interest by making inquiries:
Inspection of the property
This involves inspection of the physical condition, boundaries, conditions and any defects that may exist. For example, you should find out if there are any easements such a right of way/dirt track running across the property or if a wall erected is supporting a next door property. Also, the land may be unsuitable for building.
Town and Country approval
Here in Trinidad and Tobago where squatting has become prevalent especially in areas not approved for residential use, the prospective buyer must ensure the property he or she desires is owned by the vendor and approval has been given for the use sought.
The prospective buyer should always seek to find out if there are other parties occupying the land and if so what is their relationship to the vendor. Examples may include relatives of the vendor, tenants or someone occupying the land under a license arrangement.
Have a search done
A purchaser is well advised to have a “title search” done on the property before purchase to find out if the vendor is indeed the owner of the land. Also, sometimes, a judgment may be registered against a parcel of land and this may affect your title later on. You may consult an attorney with experience in conveyancing to have this done.
The Contract Stage
The parties must enter into an agreement for the sale or transfer of the interest in the property. As the consideration or price the vendor usually requests ten percent of the purchase price.
Following this, the vendor must prove that he or she has a “good marketable title”. In order to determine this, the following are some of the documents that should be requested:
- Certificate of title or registered deed.
- Memorandum of mortgage/transfer.
- Lease agreement.
- Land and Building Taxes receipt.
- Clearance Certificate from WASA (Water and Sewage Authority)
- Cadastral sheet/survey plan.
- Notice of permission to develop the land from Town and Country Planning.
- Death certificate and Letters of Administration (if the owner has died).
- Marriage certificate
The preparation of the conveyance for example a Deed of Gift or Mortgage requires skill on the part of the attorney-at-law to draft a legal document that correctly describes the following:
- The nature of the legal interest to be transferred e.g. freehold or leasehold.
- A description of the property and its boundaries.
- The price or consideration.
- The names of the vendor and purchaser.
- The terms under which the transfer is made e.g. a Mortgage or Deed of Release.
- The date on which such interest is transferred.