Conveyancing

From Wikipedia, the free encyclopedia Conveyancing









Conveyancing



Prior-appropriation water rights

Lateral and subjacent support

Assignment · Nemo dat

Property and conflict of laws · Blackacre

Other common law areas

Contract law · Tort law

Wills, trusts and estates

Criminal law · Evidence



In law, conveyancing is the transfer of legal title of prop-

Property law erty from one person to another, or the granting of an

encumbrance such as a mortgage or a lien.[1]

Part of the common law series

The term conveyancing may also be used in the con-

Acquisition text of the movement of bulk commodities or other prod-

Gift · Adverse possession · Deed ucts such as water, sewerage, electricity, or gas.

Conquest · Discovery · Accession A typical conveyancing transaction contains two ma-

Lost, mislaid, and abandoned property jor landmarks: the exchange of contracts (whereby eq-

Treasure trove · Bailment · License uitable title passes) and completion (whereby legal title

Alienation passes). Conveyancing occurs in three stages: before con-

tract, before completion and after completion.

Estates in land A buyer of real property must ensure that he or she

Allodial title · Fee simple · Fee tail obtains a good and marketable ’title’ to the land; i.e., that

Life estate · Defeasible estate the seller is the owner, has the right to sell the property,

Future interest · Concurrent estate and there is no factor which would impede a mortgage or

Leasehold estate · Condominiums re-sale.

Real estate A system of conveyancing is usually designed to en-

sure that the buyer secures title to the land together with

Conveyancing all the rights that run with the land, and is notified of

Bona fide purchaser any restrictions in advance of purchase. In most mature

Torrens title · Strata title jurisdictions, conveyancing is facilitated by a system of

Estoppel by deed · Quitclaim deed land registration which is designed to encourage reliance

Mortgage · Equitable conversion on public records and assure purchasers of land that they

Action to quiet title · Escheat are taking good title.[2]



Future use control

Restraint on alienation

United Kingdom

Rule against perpetuities In England and Wales, this is usually done by a solicitor or

Rule in Shelley’s Case a licensed conveyancer. Either may employ or supervise

Doctrine of worthier title an unqualified conveyancer. The domestic conveyancing

market is price competitive, with a high number of firms

Nonpossessory interest

of solicitors and conveyancing companies offering a sim-

Easement · Profit ilar service. It is possible for someone to carry out their

Covenant own conveyancing.

Equitable servitude Under English and Welsh law agreements are not

legally binding until contracts are exchanged. This af-

Related topics

fords both the advantage of freedom before contract, but

Fixtures · Waste · Partition also the disadvantage of wasted time and expense in the

Riparian water rights event the deal is not done.







1

From Wikipedia, the free encyclopedia Conveyancing





The normal practice is for the buyer to negotiate an they have good title to the property and to exhibit clear

agreed price with the seller then organise a survey and searches from the property registers and the local au-

have the solicitor (or conveyancer) carry out their thority. The fact that there is a binding contract at a rela-

searches and pre-contract enquiries. The seller’s solicitor tively early stage, compared with the normal practice in

or conveyancer will prepare the draft contract to be ap- England and Wales, makes the problem of gazumping a

proved by the buyer’s solicitor. The seller’s solicitor will rarity. The disadvantage for the buyer is that they usually

also collect and prepare property information to be pro- have to bear the cost of the survey for unsuccessful bids,

vided to the buyer’s solicitors, in line with the Law Soci- though trials have been made of a system where the sell-

ety’s National Protocol for domestic conveyancing. er arranges for one survey available to all bidders. From

It takes on average 10–12 weeks to complete a con- 1 December 2008 properties for sale will have to be mar-

veyancing transaction, but while some transactions are keted with information, now branded as the ’Home In-

quicker, many take longer. The timescale is determined formation Report’. This should consist of: a Single Sur-

by a host of factors - legal, personal, social and financial. vey, an Energy Report and a Property Questionnaire local

During this period prior to exchange of contracts (ex- authority searches and evidence of legal title. The Home

change being the point at which the transaction becomes Report will be made available on request to prospective

legally-binding) either party can pull out of the transac- buyers of the home. The date of final settlement is in

tion at any time and for any reason, with no legal oblig- Scotland known as the "date of entry".

ation to the other. This gives rise to a risk of gazumping

and its converse, gazundering. Feudal England

Conveyancing has been identified as one of the key The conveyancing process applicable to feudal fiefdoms

targets for companies looking to take advantage of the heritable by an heir was that of "re-enfeoffment", involv-

changes in the law (originally planned to be introduced ing the consecutive procedures of paying homage, pay-

in October 2011, but which is likely to be delayed for sev- ing a feudal relief and obtaining seisin.

eral months), with the introduction of the Legal Services

Act. This enables non-lawyers to own law firms, and is

a significant threat to solicitors that today rely on in- Australia

come from conveyancing. The reason why this area of In Australia much of the land which was first colonised

law has been targeted is because it is highly process-dri- by the United Kingdom is still Common Law (also known

ven and therefore perceived as being more easily man- as Old System). However since the introduction of Tor-

aged by non-lawyers. Recent trends indicate that instead rens title in 1858 most land is now under the new system

of new firms that will actually carry out the work, in- of conveyance.

stead, panel organisations are being created who take the Conveyancing in Australia is usually completed by a

instruction and pass the work to a panel of solicitors and solicitor or a licensed conveyancer. There are also kits

take a fee from the client for this distribution service. available if the buyer wishes to complete the process

These new panels employ "progressors" whose role themselves, but due to the complexity of varying state

is to merely contact solicitors that are actually transact- and council laws and processes, this is usually not recom-

ing the instruction to check on progress. This raises the mended.

issue of client-confidentiality and what information may A common conveyance by a solicitor or licensed con-

be provided to such non-connected third parties. These veyancer usually takes 4–6 weeks. Most firms offer fixed

progressors have received the moniker of Legal Naggers price services which usually includes costs of searches,

(or Laggers). legal advice and other outlays.

The position in Scotland under Scots law is that the In most states and territories a typical conveyance in-

contract is generally concluded at a much earlier stage, cludes, but is not limited to, the following:

and the initial offer, once accepted by the seller, is legally • Title Searches

binding. This results in a system of conveyancing where • checking for encumbrances and restrictions on the

buyers get their survey done before making a bid property

through their solicitor to the seller’s solicitor. If there is • ensuring any special conditions mentioned in the

competing interest for a property, sellers will normally contract are met

set a closing date for the initial offers. The contract is • making sure rates, land tax and water consumption

normally formed by letters between the solicitors on be- charges are paid by the appropriate party

half of each of the seller and purchaser, called missives. • arranging for the payment of fees and charges

Once all the terms of the contract are agreed, the mis- • preparation of legal documents.

sives are said to be concluded, and there is then a binding Searches tend to take up the bulk of the conveyance. Due

contract for the sale of the property. Normally the con- to the three level system of government in the coun-

tract is conditional upon matters such as the sellers being try (federal, state and local), it must be made sure that

able, before completion of the transaction, to prove that



2

From Wikipedia, the free encyclopedia Conveyancing





all rights and title are properly awarded to the seller. Once the conditions have been met (or waived), the buy-

Most information is retrieved from state or local (coun- er has "equitable title" and conveyancing proceeds or

cil) authorities. It is important to note that conveyancing may be compelled by court order. There may be other

processes, legal documentation, contract requirements last-minute conditions to closing, such as "broom clean"

and search requirements vary between each state and premises, evictions, and repairs.

territory. Typical papers at a conveyancing include: deed(s),

A standard search package could include: certified checks, promissory note, mortgage, certificate

• Company search of liens, pro rata property taxes, title insurance binder,

• Contaminated Land search and fire insurance binder. There may also be side agree-

• Council Property search ments (e.g., holdover tenants, delivery contracts, pay-

• Full Council Inspection of Records search ment holdback for unacceptable repairs), seller’s right

• Land Tax search of first refusal for resale, declaration of trust, or other

• Main Roads search entity formation or consolidation (incorporation, limited

• Registered Plan Search or Building Units/Group partnership investors, etc.). Where "time is of the

Titles Plan Search essence," there have been cases where the entire deposit

• Titles Search & check title search is forfeited (as liquidated damages) if the conveyancing is

Requirements, searches and costs can vary from state to delayed beyond the time limits of the buyer’s contingen-

state, depending on local property legislation and safe- cies, even if the purchase is completed.

guards. Words used to indicate conveyance, or words of con-

veyance include grant, devise, give, and sell.

United States

The conveyancing process in the United States varies

See also

from state to state depending on local legal requirements • List of real estate topics

and historical practice. In most situations, three attor- • Real estate appraisal

neys will be involved in the process: one each to repre- • Verification and validation

sent 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.

Notes

(Some states do not require all parties to be present si- [1] Black’s Law Dictionary (7th ed. 1999)

multaneously.) In order to protect themselves from de- [2] Dukeminier et al., Property 559 (6th ed. 2006)

fects in the title, buyers will frequently purchase title in-

surance at this time, either for themselves or for their

lender.

External links

In most states, a prospective buyer’s offer to purchase • (England) Council for Licensed Conveyancers, the

is made in the form of a written contract and bound regulatory body for Licensed Conveyancers.

with a deposit on the purchase price. The offer will set • (England and Wales ) E-Conveyancing, government

out conditions (such as appraisal, title clearance, inspec- information about the e-conveyancing programme.

tion, occupancy, and financing) under which the buyer • (Australia ) Law Institute of Victoria, government

may withdraw the offer without forfeiting the deposit. information about the conveyancing.









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Categories:

• Real property law

• Law in the United Kingdom

• State law in the United States

• Australian property law





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