Times are becoming increasingly expensive and finding ways to cut costs is usually a consideration in making certain decisions during transactions. Unfortunately, persons have also considered this in determining whether or not to use the services of an attorney at law when purchasing property.
Due to the possible pitfalls in conveyancing, it is always recommended the services of an attorney at law is used in any land transaction, preferably an attorney practicing Conveyancing generally.
There have been several incidents in Jamaica where persons have been swindled out of their monies during land purchases when they proceed in such transactions without the assistance of an attorney. I can recall some time ago there was an incident where persons were posing as representatives of the Housing Agency of Jamaica selling land in Naseberry Villa, St. Catherine collecting millions from unsuspecting members of the public. The purchasers eventually discovered the vendor had no connection to the Housing Agency of Jamaica to be selling the land.
There was also an incident where several persons were defrauded in the sale of lands near Clifton in Bernard Lodge, St. Catherine when it was alleged a school principal held herself out as having the capacity to sell parcels of land when it was discovered that the property was owned by no person connected to the principal. Eventually the true owner of the land bulldozed the illegal structures built by the unsuspecting buyers.
Their financial investment was clearly wasted.
Those events reflect some reasons why having an attorney to assist you in the purchase of land is important.
In acting for a purchaser, the attorney’s duties include ensuring that the vendor has the legal capacity to sell the property. If a person is not reflected on the title for the property as its registered owner, or is not an executor/administrator of the registered owner who is deceased, or does not have a power of attorney issued by the registered proprietor of the property being sold, then it is unlikely such person has the capacity to sell. Your attorney would do relevant checks in your interest as it relates to this issue.
Another possible pitfall of land purchase is entering into a sale agreement to discover that even though the vendor is owner of the land and can sell, the vendor lacks the ability to have the transfer effected as it is hindered by the fact that a caveat is registered against the title. This can impede the sale as a caveat acts like a stop order preventing the registering of any dealing on the title which in some instances depending on the type of caveat registered, would require the intervention of the court to have the caveat lifted. In such instances, the sale would be affected until that caveat issue is resolved through the Court or through settlement. A purchaser’s attorney would make such checks and enquiries from the initial stages of the purchase.
Primarily though, an important role of the purchaser’s attorney is to peruse the offered sale agreement by the vendor and to negotiate terms of the sale agreement with the purchaser’s interest and circumstances in mind. Sale agreements generally contain certain terms which can affect a purchaser in the sale process in terms of financial exposure if the purchaser does not appreciate the terms and their implications. Such terms include time of the essence clauses, forfeiture, undertaking clauses, interest clauses, and clauses relating to escalation of fees, which, depending on the relevant term that the purchaser fails to honor, the purchaser may find themselves exposed to significant financial loss during the transaction.
While a sale agreement may give the vendor certain powers based on certain clauses, an attorney being involved on behalf of the purchaser would ensure that the right of the vendor to forfeit or do any act pursuant to one of the clauses discussed above, does in fact arise. For example, while a contract may allow a vendor to forfeit for failure of the purchaser to honor further payment, the purchaser’s attorney familiar with legal principles in conveyancing would be able to protect you or defend against such forfeiture if it is arguable that certain circumstances exists which should prevent the forfeiture in law.
Generally, it is the vendor’s attorney who has carriage or conduct of the sale process, however the purchaser’s attorney acts as a wingman following up with the vendor’s attorney with a view of protecting the purchaser’s interest.
Owning real estate is an ambitious endeavor with significant sums at risks. If you’re considering purchasing residential or commercial property, it is always recommended to use the services of an attorney to help protect your interest during the transaction.
