Conveyancing

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).

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—ie., 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—ie., 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’s 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.[13] However, over the years, delays with local authority searches [14] 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[15] 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[16] to display boundary maps on-screen using a live data link to help validate property locations.[17]

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, first introduced in 1858. 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.[18]

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 has 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. This time allows the purchaser to reconsider the purchase and enable them to cancel the contract if they so wish, 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.

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 all rights and title are properly awarded to the seller. 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:

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 owned 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 this secrecy.[19]

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. ↑ The CON 29 and CON 29O consultation Law Society (June 23, 2016)
  14. ↑ Emma Tyrrell (Dec 7, 2002) 'Can't they get a move on' Guardian. Retrieved July 11, 2016.
  15. ↑ Rob Hailstone (June 4, 2014) 'Conveyancing - Personal searches vs Official Searches' Estate Agent Today. Retrieved July 11, 2016.
  16. ↑ Land Registry - National Spatial Dataset
  17. ↑ Ryan Bembridge (January 8, 2016) 'Search provider integrates land registry data' Mortgage Introducer. Retrieved July 11, 2016.
  18. ↑ ISSN 2200-9698 (2013). Land and Property Information - Old System Information and Search Guide
  19. ↑ 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.
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