Presentation on theme: "OVERVIEW LAND LAW BASICS Old Law & RPA Systems / Estates In Land – Freehold vs. Leasehold / Co-ownership TITLE SEARCHES Old Law - 20 years - Computerised."— Presentation transcript:
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
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) OR HALF-BROTHERS and HALF-SISTERS of Intestate (in equal shares) OR GRANDPARENTS of Intestate (in equal shares) OR NEPHEWS and NIECES of the WHOLE blood OR NEPHEWS and NIECES of HALF blood OR UNCLES and AUNTS – being BROTHERS AND SISTERS of WHOLE blood of the Intestate’s parents OR UNCLES 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.
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 consideration o Mortgage o Specific devise in a Will - must contain a description by which the property can be clearly i dentified 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/ CAVEATS JUDGMENTS 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
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 1 st 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 TitleApplication 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 TitleApplication for Replacement Certificate of Title - Need declarations, ad to be placed in newspaper, wait 2 weeks
TYPICAL TITLE DEFECTS – cont’d No Right of WayDeed 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 / DebenturesDeed of Release – duly executed by Mortgagee in escrow
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 lan d GENERAL Gifts, Assents, Mortgages, etc.
ALTERNATIVE METHOD – SALE OF SHARES IN HOLDING COMPANY DOCUMENTS: 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