Conveyancing

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In law, conveyancing is the transfer of legal title of real property from one person to another, or the granting of an encumbrance such as a mortgage or a lien. [1] A typical conveyancing transaction has two major phases: the exchange of contracts (when equitable interests are created) and completion (also called settlement, when legal title passes and equitable rights merge with the legal title).

Contents

The sale of land is governed by the laws and practices of the jurisdiction in which the land is located. It is a legal requirement in all jurisdictions that contracts for the sale of land be in writing. An exchange of contracts involves two copies of a contract of sale being signed, one copy of which is retained by each party. When the parties are together, both would usually sign both copies, one copy of which being retained by each party, sometimes with a formal handing over of a copy from one party to the other. However, it is usually sufficient that only the copy retained by each party be signed by the other party only — hence contracts are "exchanged". This rule enables contracts to be "exchanged" by mail. Both copies of the contract of sale become binding only after each party is in possession of a copy of the contract signed by the other party—i.e., the exchange is said to be "complete". An exchange by electronic means is generally insufficient for an exchange, unless the laws of the jurisdiction expressly validate such signatures.

It is the responsibility of the buyer of real property to ensure that he or she obtains a good and marketable title to the land—i.e., that the seller is the owner, has the right to sell the property, and there is no factor which would impede a mortgage or re-sale. Some jurisdictions have legislated some protections for the buyer, besides the ability for the buyer to do searches relating to the property.

A system of conveyancing is usually designed to ensure that the buyer secures title to the land together with all the rights that run with the land, and is notified of any restrictions in advance of purchase. Many jurisdictions have adopted a system of land registration to facilitate conveyancing and encourage reliance on public records and assure purchasers of land that they are taking good title. [2]

England and Wales

In England and Wales, conveyancing is usually done by a solicitor or a licensed conveyancer; either may employ or supervise an unqualified conveyancer. What is being conveyed, or transferred, is a piece of land or property, that historically (especially in England) may or may not include the "messuage", [3] that would be the principal dwelling, and might include an orchard, any outbuildings, and curtilage [4] if present. [5] [6] [7] The domestic conveyancing market is price competitive, with a high number of firms of solicitors and conveyancing companies offering a similar service. It is possible for someone to carry out their own conveyancing, but it is labour-intensive. If the transaction involves a mortgage, it is almost certain that the lender will insist that a solicitor is used for the conveyancing. [8]

It is a common myth that conveyancing has to be carried out by a local solicitor or conveyancer. This is no longer the case, with many conveyancers and solicitors conducting transactions from a distance using email and online technology. [9]

There were approximately 5,357 firms operating in the conveyancing market in 2015, but this number has fallen from 5,871 the year before. The number of firms in the market is almost a third lower than the 7,779 firms recording transactions in 2005, [10] following a severe conveyancing shortage during the recession. [11]

Under English law, agreements are not legally binding until contracts are exchanged. This affords both the advantage of freedom before contract, but also the disadvantage of wasted time and expense in the event the deal is not done.

The normal practice is for the buyer to negotiate an agreed price with the seller then organise a survey and have the solicitor (or conveyancer) carry out their searches and pre-contract enquiries. The seller's solicitor or conveyancer will prepare the draft contract to be approved by the buyer's solicitor. The seller's solicitor will also collect and prepare property information to be provided to the buyer's solicitors, in line with the Law Society's National Protocol for domestic conveyancing. When undertaking property transactions, the conveyancer's role is to carry out due diligence by submitting queries – known as Conveyancing Searches – about the transacted property. These are designed to uncover factors the estate agent or surveyor may not know about, which could impact the buyer's enjoyment of the property. [12]

It takes on average 10–12 weeks to complete a conveyancing transaction, but while some transactions are quicker, many take longer. The timescale is determined by a host of factors – legal, personal, social and financial. During this period prior to exchange of contracts (exchange being the point at which the transaction becomes legally binding) either party can pull out of the transaction at any time and for any reason, with no legal obligation to the other. This gives rise to a risk of gazumping and its converse, gazundering. Conveyancing is a component of the cost of moving house in the United Kingdom.

Conveyancing searches

As part of property transactions, the conveyancer’s role is to carry out due diligence by submitting queries – known as searches – about the transacted property. These are designed to uncover factors the estate agent or surveyor may not know about, which could impact the buyer’s enjoyment of the property .

Property searches include:

Search providers

Local authority searches, according to the Law Society , are a ‘vital part of the conveyancing process and give buyers important information about matters affecting a property that is registered or recorded with the local authority. [14] However, over the years, delays with local authority searches [15] have prompted lawyers to order a ‘personal’ search, carried out by a third party or a search provider, who visits the council office and inspects and records the information kept by the local authority [16] on behalf of the conveyancer or solicitor.

Private search companies and ordering platforms have been integrating Land Registry's data to speed up the process of search ordering, improve accuracy and reduce the chances of human error. One example is the use of Land Registry's National Spatial Dataset [17] to display boundary maps on-screen using a live data link to help validate property locations. [18]

Scotland

The position in Scotland under Scots law is that the contract is generally concluded at a much earlier stage, and the initial offer, once accepted by the seller, is legally binding. This results in a system of conveyancing where buyers get their survey done before making a bid. If there is competing interest for a property, sellers will normally set a closing date for the initial offers.

The contract is normally formed by missives of sale between the buyer, or buyer's agent, and seller, or seller's agent. Missives are letters the body of which contain proposed sale contracts and that negotiate terms, one missive at a time, essentially as an offer and counter-offer. Once all the contractual terms are agreed, the missives are said to be concluded, and these serve as a binding contract for the sale of the property. Normally the contract is conditional upon matters such as the sellers being able, before completion of the transaction, to prove that they have good title to the property and to exhibit clear searches from the land registers and the local authority. The fact that there is a binding contract at a relatively early stage, compared with the normal practice in England and Wales, makes the problem of gazumping a rarity.

From 1 December 2008 properties for sale are marketed with a 'Home Information Report' pack. This consists of: a Single Survey, an Energy Report and a Property Questionnaire. The Home Report is available on request to prospective buyers of the property. The date of final settlement is in Scotland known as the "date of entry".

Although it is not a legal requirement, many property buyers and sellers in Scotland use the services of a solicitor to carry out the conveyancing.

Australia

Most privately owned land in Australia is now regulated under the Torrens system of land registration, introduced between 1857 and 1875. Some parcels of land are still unregistered and commonly referred to as general law land. Property law in Australia is derived from English common law. [19]

Conveyancing in Australia (also called a transfer) is usually carried out by a solicitor or a licensed conveyancer. Kits are available for the buyer to complete the process themselves, but due to the complexity of varying state and council laws and processes, this is usually not recommended.

Queensland and New South Wales have a 5 days "cooling off" period for residential contracts. Victoria has a 3 business day cooling off period on private sales and South Australia has 2 days. During this time the purchaser may reconsider the purchase and, if they so wish, cancel the contract, in which case the purchaser may be legally bound to pay 0.25% of the purchasing price to the seller (0.2% in Victoria). Not all contracts have a cooling off period such as when the property is purchased at auction or if the purchaser expedites the process. [20]

A common conveyance by a solicitor or a licensed conveyancer usually takes 4 to 6 weeks. Most firms offer fixed price services which normally include costs for searches, legal advice and other outlays. In most states and territories a typical conveyance includes, but is not limited to, the following:

Searches tend to take up the bulk of the conveyance. Due to the three level system of government (federal, state and local), it must be made sure that the vendor is entitled to all rights and title. Most information is retrieved from state or local (council) authorities. It is important to note that conveyancing processes, legal documentation, contract requirements and search requirements vary between each state and territory.

Requirements, searches and costs can vary between jurisdictions, depending on local property legislation and regulations. Depending on the circumstances of each case, and depending on the jurisdiction, a title search may also involve:

With the introduction of the Electronic Conveyancing National Law in 2012, [21] all Australian states are in the process of transitioning to electronic conveyancing in accordance with state-based mandates. Australia's first online property transfer took place in New South Wales in 2014 using the Property Exchange Australia (PEXA) platform. [22]

United States

The conveyancing process in the United States varies from state to state depending on local legal requirements and historical practice. In rare situations, the parties will engage in a formal "closing." In a formal closing three attorneys will be involved in the process: one each to represent the buyer, seller, and mortgage holder; frequently all three will sit around a table with the buyer and seller and literally "pass papers" to effect the transaction.

Much more commonly, the transaction is closed by use of an escrow. (See also Escrow § Real estate.) Practice vary from state to state as to who conducts the title search to make sure the seller has or can convey clear title, including what liens must be paid, and as to who acts as the escrow holder. In many states attorneys still act as the escrow agent and title inspector. In many others those functions are conducted by licensed escrow agents who often are affiliated with or even employed by a title insurance company. Some use a mix, such as having an attorney conduct the escrow while the title investigation is handled by the title insurance company or its agent.

In order to protect themselves from defects in the title, buyers will frequently purchase title insurance at this time for themselves. They will almost always be required to purchase title insurance for their lender as a condition of the loan.

In most states, a prospective buyer's offer to purchase is made in the form of a written contract and bound with a deposit on the purchase price. The offer will set out conditions (such as appraisal, title clearance, inspection, occupancy, and financing) under which the buyer may withdraw the offer without forfeiting the deposit. Once the conditions have been met (or waived), the buyer has "equitable title" and conveyancing proceeds or may be compelled by court order. There may be other last-minute conditions to closing, such as "broom clean" premises, evictions, and repairs.

Typical papers at a conveyancing include: deed(s), certified checks, promissory note, mortgage, certificate of liens, pro rata property taxes, title insurance binder, and fire insurance binder. There may also be side agreements (e.g., holdover tenants, delivery contracts, payment holdback for unacceptable repairs), seller's right of first refusal for resale, declaration of trust, or other entity formation or consolidation (incorporation, limited partnership investors, etc.). Where "time is of the essence," there have been cases where the entire deposit is forfeited (as liquidated damages) if the conveyancing is delayed beyond the time limits of the buyer's contingencies, even if the purchase is completed.

Words used to indicate conveyance, or words of conveyance include grant, devise, give, and sell.

Public records

In the Roman tradition, private rights to land were enforceable even if secret; this tradition remained to some extent in Europe up through the 19th century, but modern systems no longer allow for such secrecy. [23]

See also

Notes

  1. Black's Law Dictionary (7th ed. 1999)
  2. Dukeminier et al., Property 559 (6th ed. 2006)
  3. Definition of messuage-A Digest of the Laws of England Respecting Real Property, Volume 4, p 321 #42, Retrieved 2016-05-14
  4. example of messuage- p 35-36, Retrieved 2016-05-15
  5. Bouvier, John (1870) [1st pub. 1839]. A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union: With References to the Civil and Other Systems of Foreign Law. Vol. II (Fourth ed.). Philadelphia: G.W. Childs. p. 176. Retrieved 6 December 2012.
  6. Sheets v. Selden's Lessee, 69 U.S. 177, 187 (1864)
  7. Benjamin Lynde Oliver, R. Day (1827). Practical Conveyancing. Glazier & Company. p. 250.
  8. DIY Conveyancing - ConveyancingPro (Jan 2016)
  9. "Do I have to use a local solicitor for my conveyancing". The First Time Buyer. Retrieved 2016-11-19.
  10. Monidipa Fouzder (February 15, 2016) 'Conveyancers – ‘no room for complacency’ Law Society Gazette. Retrieved July 11, 2016.
  11. Hayley Kirton (June 13, 2016) 'Why conveyancing is where it's at for legal eagles' City AM. Retrieved July 11, 2016.
  12. Conveyancing Process Explained for buyers Home Owners Alliance.
  13. Russell, Hewitson; Silverman, Frances (2011). Conveyancing searches and enquiries (4th ed.). Bristol: Jordan Pub. ISBN   9781846612350. OCLC   644654265.
  14. The CON 29 and CON 29O consultation Archived 2017-03-06 at the Wayback Machine Law Society (June 23, 2016)
  15. Emma Tyrrell (Dec 7, 2002) 'Can't they get a move on' Guardian. Retrieved July 11, 2016.
  16. Rob Hailstone (June 4, 2014) 'Conveyancing - Personal searches vs Official Searches' Estate Agent Today. Retrieved July 11, 2016.
  17. "National Polygon Service - GOV.UK". www.gov.uk. Retrieved 1 April 2018.
  18. Ryan Bembridge (January 8, 2016) 'Search provider integrates land registry data' Mortgage Introducer. Retrieved July 11, 2016.
  19. ISSN 2200-9698 (2013). Land and Property Information - Old System Information and Search Guide Archived 2016-03-03 at the Wayback Machine
  20. "The Conveyancing Process | Simplified | Teddington Legal". teddingtonlegal.com.au. Retrieved 2018-10-02.
  21. Electronic Conveyancing National Law
  22. "Australia world leaders in online property settlement - PEXA". PEXA. Retrieved 1 April 2018.
  23. Arruñada B. (2011). Property titling and conveyancing. Chapter 12 in Kenneth Ayotte and Henry E. Smith, eds.,Research Handbook on the Economics of Property Law.

Related Research Articles

A mortgage is a legal instrument which is used to create a security interest in real property held by a lender as a security for a debt, usually a loan of money. A mortgage in itself is not a debt, it is the lender's security for a debt. It is a transfer of an interest in land from the owner to the mortgage lender, on the condition that this interest will be returned to the owner when the terms of the mortgage have been satisfied or performed. In other words, the mortgage is a security for the loan that the lender makes to the borrower.

Being in escrow is a contractual arrangement in which a third party receives and disburses money or property for the primary transacting parties, most generally, used with plentiful terms that conduct the rightful actions that follow. The disbursement is dependent on conditions agreed to by the transacting parties. Examples include an account established by a broker for holding funds on behalf of the broker's principal or some other person until the consummation or termination of a transaction; or, a trust account held in the borrower's name to pay obligations such as property taxes and insurance premiums. The word derives from the Old French word escroue, meaning a scrap of paper or a scroll of parchment; this indicated the deed that a third party held until a transaction was completed.

This aims to be a complete list of the articles on real estate.

A deed is any legal instrument in writing which passes, affirms or confirms an interest, right, or property and that is signed, attested, delivered, and in some jurisdictions, sealed. It is commonly associated with transferring (conveyancing) title to property. The deed has a greater presumption of validity and is less rebuttable than an instrument signed by the party to the deed. A deed can be unilateral or bilateral. Deeds include conveyances, commissions, licenses, patents, diplomas, and conditionally powers of attorney if executed as deeds. The deed is the modern descendant of the medieval charter, and delivery is thought to symbolically replace the ancient ceremony of livery of seisin.

A real estate broker, real estate agent or realtor is a person who represents sellers or buyers of real estate or real property. While a broker may work independently, an agent usually works under a licensed broker to represent clients. Brokers and agents are licensed by the state to negotiate sales agreements and manage the documentation required for closing real estate transactions. In North America, some brokers and agents are members of the National Association of Realtors (NAR), the largest trade association for the industry. NAR members are obligated by a code of ethics that go above and beyond state legal requirements to work in the best interest of the client. Buyers and sellers are generally advised to consult a licensed real estate professional for a written definition of an individual state's laws of agency, and many states require written disclosures to be signed by all parties outlining the duties and obligations.

Title insurance is a form of indemnity insurance predominantly found in the United States and Canada which insures against financial loss from defects in title to real property and from the invalidity or unenforceability of mortgage loans. Unlike some land registration systems in countries outside the United States, US states' recorders of deeds generally do not guarantee indefeasible title to those recorded titles. Title insurance will defend against a lawsuit attacking the title or reimburse the insured for the actual monetary loss incurred up to the dollar amount of insurance provided by the policy.

A real estate contract is a contract between parties for the purchase and sale, exchange, or other conveyance of real estate. The sale of land is governed by the laws and practices of the jurisdiction in which the land is located. Real estate called leasehold estate is actually a rental of real property such as an apartment, and leases cover such rentals since they typically do not result in recordable deeds. Freehold conveyances of real estate are covered by real estate contracts, including conveying fee simple title, life estates, remainder estates, and freehold easements. Real estate contracts are typically bilateral contracts and should have the legal requirements specified by contract law in general and should also be in writing to be enforceable.

Gazumping occurs when a seller accepts a verbal offer on the property from one potential buyer, but then accepts a higher offer from someone else. It can also refer to the seller raising the asking price or asking for more money at the last minute, after previously verbally agreeing to a lower one. In either case, the original buyer is left in a bad situation, and either has to offer a higher price or lose the purchase. The term gazumping is most commonly used in the UK, Ireland and Australia, although similar practices can be found in some other jurisdictions.

Closing is the final step in executing a real estate transaction.

Equitable conversion legal transfer of property

Equitable conversion is a doctrine of the law of real property under which a purchaser of real property becomes the equitable owner of title to the property at the time he/she signs a contract binding him/her to purchase the land at a later date. The seller retains legal title of the property prior to the date of conveyance, but this land interest is considered personal property. The risk of loss is then transferred to the buyer – if a house on the property burns down after the contract has been signed, but before the deed is conveyed, the buyer will nevertheless have to pay the agreed-upon purchase price for the land unless the seller in possession or deemed in possession has failed to protect it. Such issues can and should be avoided by parties by stipulating in the contract who will bear the loss in such occurrences. The above rule varies by jurisdiction, but is the general rule.

Closing costs are fees paid at the closing of a real estate transaction. This point in time called the closing is when the title to the property is conveyed (transferred) to the buyer. Closing costs are incurred by either the buyer or the seller.

A licensed conveyancer is a specialist legal professional in the United Kingdom, New Zealand, Australia or South Africa who has been trained to deal with all aspects of property law.

In real estate business and law, a title search or property title search is the process of retrieving documents evidencing events in the history of a piece of real property, to determine relevant interests in and regulations concerning that property.

A land contract — often described by other terminology listed below — is a contract between the buyer and seller of real property in which the seller provides the buyer financing in the purchase, and the buyer repays the resulting loan in installments. Under a land contract, the seller retains the legal title to the property, while permitting the buyer to take possession of it for most purposes other than legal ownership. The sale price is typically paid in periodic installments, often with a balloon payment at the end to make the timelength of payments shorter than in the corresponding fully amortized loan. When the full purchase price has been paid including any interest, the seller is obligated to convey legal title to the property. An initial down payment from the buyer to the seller is usually also required.

The abstract system of title transfer is a legal term in German law relating to the law of obligations (Schuldrecht) and property law (Sachenrecht). Although no express reference to it is made in the German Civil Code (BGB), the concept of separating a personal undertaking to pay or exchange goods or legal rights from the conveyance of title to those goods or legal rights is fundamental to German private law.

Seller financing is a loan provided by the seller of a property or business to the purchaser. When used in the context of residential real estate, it is also called "bond-for-title" or "owner financing." Usually, the purchaser will make some sort of down payment to the seller, and then make installment payments over a specified time, at an agreed-upon interest rate, until the loan is fully repaid. In layman's terms, this is when the seller in a transaction offers the buyer a loan rather than the buyer obtaining one from a bank. To a seller, this is an investment in which the return is guaranteed only by the buyer's credit-worthiness or ability and motivation to pay the mortgage. For a buyer it is often beneficial, because he/she may not be able to obtain a loan from a bank. In general, the loan is secured by the property being sold. In the event that the buyer defaults, the property is repossessed or foreclosed on exactly as it would be by a bank.

In real estate in the United States, a deed of trust or trust deed is a legal instrument which is used to create a security interest in real property wherein legal title in real property is transferred to a trustee, which holds it as security for a loan (debt) between a borrower and lender. The equitable title remains with the borrower. The borrower is referred to as the trustor, while the lender is referred to as the beneficiary.

The Home Equity Theft Prevention Act is a New York State law passed on July 26, 2006, to provide homeowners of residential property with information and disclosures in order to make informed decisions when approached by persons seeking a sale or transfer of the homeowner's property, particularly when homeowners are in default on their mortgage payments or the property is in foreclosure.

The vast majority of states in the United States employ a system of recording legal instruments that affect the title of real estate as the exclusive means for publicly documenting land titles and interests. This system differs significantly from land registration systems, such as the Torrens system that have been adopted in a few states. The principal difference is that the recording system does not determine who owns the title or interest involved, which is ultimately determined through litigation in the courts. The system provides a framework for determining who the law will protect in relation to those titles and interests when a dispute arises.

In the United Kingdom, a local authority search refers to the provision of specific information about a particular property and the surrounding area for buyers and sellers. This is undertaken as part of the conveyancing process by a solicitor or a licensed conveyancer. If you are borrowing money to finance the purchase it will normally be a condition of the advance that you obtain a local search. If you are not having finance it is your option whether to have a local search or not.