overview land law basics old law & rpa systems / estates in land – freehold vs. leasehold /...
TRANSCRIPT
Best Practices for Real Estate 2012 Seminar16th March, 2012
ENSURING GOOD TITLE TO PROPERTY ©
Presented by: Ms. Ashrini Beharry
J. D. Sellier + Co.Nos. 129/131 Abercromby Street
Port of SpainWebsite: www.jdsellier.com
©
OVERVIEW
LAND LAW BASICS Old Law & RPA Systems / Estates In Land – Freehold vs. Leasehold /
Co-ownership
TITLE SEARCHES Old Law - 20 years - Computerised searches / General Index / Country
Books RPA - Certificates of Title & Endorsements Companies Judgments / Lis Pendens / Caveats
OTHER LEGAL REQUIREMENTS Lands and Buildings taxes & WASA rates Town & Country Planning Division Restrictions and Approvals vs.
Restrictive Covenants
ENSURING GOOD TITLE - AFTER SEARCHES & INVESTIGATIONS
THE TRANSFER PROCESS
LAND LAW BASICS
OLD (COMMON) LAW / R.P.A.
OLD LAW (OR COMMON LAW) SYSTEM: Governed by Conveyancing and Law of Property Act Ch. 56:01
( formerly Ordinance Ch. 27 No. 12) System of Deeds – which are registered at the Land Registry Searches done to find root Deed and unbroken chain of Deeds for
at least 20 years
REAL PROPERTY ACT ( ‘R.P.A.’ / ‘R.P.O.’) SYSTEM: Governed by Real Property Act Ch. 56:02. ( formerly Ordinance
Ch27 No. 11 ) Duplicate Certificates of Title (‘CT’) issued by Registrar General Transactions endorsed on back of CT Curtain/Mirror/Insurance Principles – CT is conclusive and
guaranteed
FREEHOLD vs. LEASEHOLD ESTATES
Absolute ownership
999/199/99/25 year leases - Rent payable – Covenants entered into by Lessor and Lessee – Rights granted to Lessee / Rights reserved by Lessor – Service charge / Maintenance fee (if townhouse/condo/apartment development) / Management Companies / Share Certificates
CO-OWNERSHIP
Joint Tenancy: 2 or more persons owning the whole title estate or
interest in the property together Right of Survivorship – If one co-owner dies, his interest
automatically passes to the surviving joint co-owner(s)
Tenancy in Common: 2 or more persons owning distinct/undivided shares in
property Right of Inheritance - If one co-owner dies, his interest
passes to the beneficiaries under his Will (if he dies Testate) or to his Estate (if he dies Intestate)
INTESTATE
CATEGORY 1:SPOUSE / COHABITANT OR CHILDREN OR SPOUSE / COHABITANT (1/2) & CHILDREN (1/2 to be split amongst children in equal shares)
CATEGORY 2: PARENTS of the Intestate
CATEGORY 3: BROTHERS and SISTERS of Intestate of the WHOLE blood (in equal shares) ORHALF-BROTHERS and HALF-SISTERS of Intestate (in equal shares) ORGRANDPARENTS of Intestate (in equal shares) ORNEPHEWS and NIECES of the WHOLE blood ORNEPHEWS and NIECES of HALF blood ORUNCLES and AUNTS – being BROTHERS AND SISTERS of WHOLE blood of the Intestate’s parents ORUNCLES and AUNTS – being HALF-BROTHERS and HALF-SISTERS of the Intestate’s parents
CATEGORY 4: STATE
Note: If beneficiary conceived but not born before Intestate’s death, beneficiary inherits as though born in lifetime of Intestate and had survived him.
TITLE SEARCHES
SEARCHES AT REGISTRY
OLD LAW ‘Root’ – Must show commencement of title of at least 20
years – Sections 5 and 6(7) of CLPA
Computerised System (PIMS) / General Index / Country Books
Types of deeds/transactions considered to be ‘good root’:o Conveyance on Sale - for valuable considerationo Mortgageo Specific devise in a Will - must contain a description by which the
property can be clearly identified
RPA Duplicate Original Certificates of Title Endorsements
Must be free from encumbrances!
SEARCHES AT REGISTRY – cont’d
COMPANIES
Manual file vs. Online Companies Search Facility
Charges – Mortgages & Debentures
Memoranda of Satisfaction
Duly Appointed Officers
Annual Returns
By-Laws – not filed at Registry
JUDGMENTS/ LIS PENDENS/ CAVEATSJUDGMENTS Valid for 12 years Must be re-registered at land registry every 3 years in order to maintain
priority Can be enforced by:
• Writ of Execution – Levy on chattels• Summons for Sale (of debtor’s other real property)• Garnishee Order• Judgment Summons – Assessment of Means
LIS PENDENS Registered against property in dispute – pending completion of
proceedings Must be re-registered every 3 years in order to maintain priority Valid for 12 years Caveats - Similar to Lis Pendens, but applicable to RPO property
OTHER LEGAL REQUIREMENT
S
RATES & TAXES
Section 18 – Lands and Buildings Taxes Act Ch. 76:04
All taxes shall constitute a debt due to the State and shall be a first charge on such lands and buildings and may be recovered by distress and sale.
Section 74 – Water and Sewerage Act Ch. 54:40 & Section 7 – Rates and Charges Recovery Act Ch. 74:03
T&CPD APPROVALS/ COMPLETION CERTIFICATES
Prior to development of a parcel of land, plans must be submitted to and approval obtained by developer from the Town and Country Planning Division (‘T&CPD’)
T& CPD Approval required for:o Development/ Sub-division / Change of Use
o No approval necessary prior to 1st August, 1969 (when Town & Country Planning Act Ch. 35:01 was passed) --- However, pursuant to s. 16 of the Act, the Minister may within 4 years of breach, enforce planning control if approval not obtained or conditions not complied with
After completion of construction, Completion Certificate issued by relevant Regional Corporation / THA (S.25 Chap 25:03)
ENSURING GOOD TITLE – AFTER SEARCHES &
INVESTIGATIONS
TYPICAL TITLE DEFECTS
No Root of Title Application to bring land under the RPA - Need survey, declarations, proof of payment of lands and buildings taxes
Restrictive Covenants that affects intended Use
Deed of Variation or Waiver from Lessor or Holder of the Covenant - Need to have agreement of Lessor / Holder of Covenant to waive or vary covenant – usually price to be paid for same
Omitted share- Occurs often in cases of where there are multiple co-owners of a property
Conveyance of omitted share to current owner
Lost Certificate of Title Application for Replacement Certificate of Title- Need declarations, ad to be placed in newspaper, wait 2 weeks
TYPICAL TITLE DEFECTS – cont’d
No Right of Way Deed of Rectification / Confirmation
OR Sometimes, confirmation that ‘road reserve’ is now a public road
Consent of Lessor not obtained for previous assignment
Deed of Waiver and Confirmation by Lessor
Judgment found registered against a Vendor
Notice of Cancellation / Discontinuance/ Satisfaction to be filed at High Court Civil Registry & at Registrar General’s Office
Outstanding Mortgages / Debentures
Deed of Release – duly executed by Mortgagee in escrow
THE TRANSFER PROCESS
TRANSFER INSTRUMENTS
OLD LAW Freehold - Deed of Conveyance Leasehold - Deed of Lease / Assignment
RPA Freehold - Memorandum of Transfer Leasehold - Memorandum of Lease / Transfer New Certificate of Title to be issued – if an excision from a larger
parcel of land
GENERAL Gifts, Assents, Mortgages, etc.
ALTERNATIVE METHOD – SALE OF SHARES IN HOLDING COMPANYDOCUMENTS: Share Sale Agreement
Minutes of Meetings & Resolutions
Auditors’ / Accountant’s Valuation Of Shares
Share Transfer Form (to be stamped at B.I.R. – Stamp Duty calculated at 0.5% of value of shares or purchase price, whichever is higher)
Notices of Change of Directors, Secretary and Address of Company
Resignations of outgoing Directors and Secretary
COMPLETION OF TRANSACTION
Attendance at Attorney’s office – Execution of Deed(s)
Vendor must be present – If not, execution abroad before a Notary Public
Powers of Attorney
Companies – Usually 2 Signatories required & Company Seal
Vacant Possession – delivery of keys
Payment of Balance of Purchase Price to Vendor upon execution of Deed
Payment of Fees / Stamp Duty by Purchaser
(see handout for calculation of same)
EVENTS AFTER COMPLETION
Affidavit of Execution – to be sworn before Commissioner of Affidavits
Stamp Duty to be paid at Board of Inland Revenue
Deeds/Instruments to be registered at respective Registry Departments
Certified Copy of Deed to be ordered
Return of Ownership Form to be prepared by Attorneys
New Owner to submit Certified Copy and Return of Ownership Form to relevant District Revenue Office to record change in ownership on Assessment Roll
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