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Initial Steps In A Property Transaction Notes
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Initial Steps in a Property Transaction Deducing Title
• Title is deduced by the seller's solicitor. He does this by collating the title documents, reading them, and ensure the seller owns the property and is entitled to sell it.
He then sends to the buyer's solicitor.
• CAVEAT EMPTOR - let the buyer beware - the seller has a limited duty of disclosure, so the buyer must investigate and deduce title to ensure the property is suitable. o
Therefore, the buyer's solicitor must carry out investigations to identify the extent of the property, the rights benefiting the property, the extent of 3rd party rights, whether the seller has good title and ensuring the property can be used for the intended purpose.
To fully investigate title, the buyer's solicitor must check the official copies of register, the title plan and any other documents referred to in the register
He must also check for any unregistered 3rd party interests by carrying out pre-contract searches and enquiries. 1) The Official Copies
FIRST CHECK: look at the top box on the OC containing the date and time of issue. a) The Property Register Describes the property and any rights benefiting it.
Does the plan satisfy client expectations? Is it what the client thought it would be?
Outlines any easements BENEFITING the property:
RIGHTS OF WAY: get a copy of the deed for right of way from seller or LR. o
Adequacy: are there any limits (i.e. vehicular or foot only, time limits, physical condition). Does it satisfy the client's needs?
Maintenance: always mention and suggest you ask seller how much he has been paying.
Adoption: always bring up - this could have long-term benefits as council maintains, but short-term expense as it can be very expensive to bring the road to standard. Check CON29R for LA intention and the enquire as to the cost implications.
DRAINAGE: is this adequate for the client?
RIGHTS REQUIRED: usually to join the highway/road or to access the property - check the title plan. If a right is needed, give practical advice on how to obtain rights (i.e. discover who owns the land and see if you can get a deed of easement).
b) The Proprietorship Register Specifies the class of title and identifies the owner. It will also note any indemnity covenant given by the proprietor and any restrictions on disposal.
CLASS OF TITLE: always check - should be title absolute (shows proprietor is true owner of the property and can dispose freely). Title Qualified is where the proprietor's ownership can be established for a limited period, or is subject to reservations (e.g. certain documents missing). o
ss.9-10 LRA 2002 establishes class of title.
NAMES OF PROPRIETORS: do they match? (if company check CH). When did they buy? (if recent, ML concerns and also means you may need to get replies from previous owner as current proprietor's replies a little pointless). o
Co-ownership: if the property has more than 1 owner check if:
Joint Tenants: when one dies, the deceased's interest passes to survivor. The survivor can then sell the property himself. Evidence of a death certificate required by LR.
Tenants in Common: when one dies the legal estate passes to survivor but the beneficial interest passes to deceased's will. Therefore, the deceased's interest must be overreached by an appointment of a second trustee. This requires a deed of appointment and a death certificate to the LR.
Personal representatives: responsible for administering the estate of a deed individual. Buyer needs to see a Grant of Representation.
Mortgagee selling property: entitled to via s.101 LPA which gives power to every lender whose mortgage is made by deed (s.85 all legal mortgages made by deed). The power arises on the legal date of redemption (six months after date of mortgage deed) and becomes exercisable under s.103 LPA. Check power is exercisable.
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