Conveyancing
From Free net encyclopedia
Template:PropertyLaw Conveyancing is the act of transferring the ownership of a property from one person to another. The buyer needs to ensure that he or she gets good 'title' to the land; i.e., that the person selling the house actually has the right to sell it. The system of conveyancing is designed to ensure that the buyer gets the land together with all the rights that go with it, and knows about any restrictions in advance.
A typical conveyancing transaction, whether a sale or purchase, contains two major 'landmarks', which are exchange of contracts and completion, plus the three stages: before contract, before completion and after completion.
In most modern jurisdictions, conveyancing is facilitated by a system of land registration which, in the near future, is likely to lead to widespread electronic conveyancing.
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United Kingdom
In England and Wales this is usually done by a solicitor or a conveyancer. It is also possible for someone to do their own conveyancing to save on costs. Under English law agreements are not legally binding until contracts are exchanged. 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 prepare the contract. It takes on average 10-12 weeks to get the deeds to the property, and during this period either party can pull out at any time. This gives rise to a risk of gazumping.
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 through their solicitor to the seller's solicitor. 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 letters between the solicitors on behalf of each of the seller and purchaser, called missives. Once all the terms of the contract are agreed, the missives are said to be concluded, and there is then 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 property 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. The disadvantage for the buyer is that they usually have to bear the cost of the survey for unsuccessful bids, though trials have been made of a system where the seller arranges for one survey available to all bidders.
Australia
In Australia much of the land which was first colonised by England is still Common Law (also known as Old System). However since the introduction of Torrens title in 1858 most land is now under the new (and greatly improved) system of conveyance.
United States
The conveyancing process in the United States varies from state to state depending on local legal requirements and historical practice. In most situations, 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. (Some states do not require all parties to be present simultaneously.) In order to protect themselves from defects in the title, buyers will frequently purchase title insurance at this time, either for themselves or for their lender.
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.