Do I need an Attorney when buying land?

Whether you are transferring all or a portion of your property to someone by way of gift or whether you are buying land, it is prudent to seek the services of a Real Estate or Conveyancing Attorney. Here’s why:

Scenario 1

How many persons have purchased property from someone purporting to be the owner of property but to your dismay realized that the person was NOT the owner and therefore had no authority to sell the land? In addition, to further complicate the situation you wish to bring action in court against the imposter in order to obtain a refund of your money but you are further devastated when you realize you CANNOT locate the person.

Scenario 2

Do you know someone who had purchased property a long time ago and to date has not received a Title for the land? The purchaser at the time may have thought that it was cheaper to avoid hiring an Attorney. However, in order to rectify the problem, that is, to acquire the Title for the property, the purchaser now has to seek the services of a lawyer. Not only does this situation place the purchaser under undue stress, but in addition, the purchaser has to bear the unnecessary additional legal fees that would have been avoided in the initial stages of the transaction.The above scenarios are only two of a myriad of other legal issues that confront clients when they are dealing with land.Too often, in an effort to avoid paying legal fees, the client consequently spends far more trying to rectify a problem that could have been prevented had he/she gone through the proper channel of retaining an Attorney.

The role of the Attorney

The Attorney’s role is to protect his client’s interest. The Attorney has a duty to conduct the relevant Title search in order to ascertain whether the person purporting to sell the property is indeed the owner of the property and whether there are any encumbrances on the Title. If there are encumbrances the attorney will be in a position to know beforehand whether these encumbrances may cause a delay in the transfer of the property or whether such encumbrance may prevent the completion of the sale. The attorney will then advise his/her client as to how to proceed. The legal advice given can save the purchaser unnecessary expense in the long run.

What checks by an Attorney may reveal

The land may be owned by two or more persons as Joint Tenants or Tenants-in-Common.

The property may have been owned by two persons as Joint Tenants and one person has died. Upon that person’s death, in this case, the property will pass to the surviving Joint Tenant. However, the death will have to be noted prior to or simultaneously with the transfer of the property from the owner to the purchaser.

Where the property was owned by two persons as Tenants-in-common all the owners must be a party to the transaction if all of the property is being transferred.

The Title may have been Lost or Destroyed

In many cases, the owner wishes to sell his property but the title is either lost or destroyed. The Attorney will have to make the relevant application prior to the sale or simultaneously in order to ensure that the purchaser obtains a new title upon completion of the sale.

There may be Encumbrances Preventing the Transfer

A person other than the registered proprietor may have claimed to have a proprietary/equitable interest in the property and as such may have lodged a caveat against the property thereby preventing the owner from transferring, selling or mortgaging the property to a third party.

A caveat lodged against the Title may cause inordinate delay in the transfer of the property since the matter may have to be resolved by the court. It may also mean that the caveator who is declared to be entitled to an interest in the property is not willing to sell which may pose a problem for the buyer. The Attorney in this instance would be in a position to advise the client as to whether or not it would be prudent to proceed with the purchase of the property.

The Sale Contract

If you are buying property, your Attorney will review the contract prepared by the vendor’s Attorney in order to safeguard your rights thereby ensuring that the expressed terms of the contract are in the best interest of the buyer. The Attorney may (if necessary) negotiate a decrease in the interest rate stated in the contract or negotiate for additional time for the purchaser to comply with the terms and conditions of the contract prior to the purchaser signing the Agreement for Sale.

Buying property is not synonymous with buying clothes in a store; it is an important long term investment that should be dealt with in a wise manner. Outlined above, are just a few reasons why it is important for a purchaser to seek the services of an Attorney when buying land.

Retaining an Attorney may prevent unnecessary future costs and legal fees and also may save the purchaser from pursuing the matter in the court, which is usually time consuming and expensive.

Prepared by Janice Buchanan-McLean, Attorney-at-Law - Law Offices of J. Buchanan-McLean on March 15, 2014

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