Conveyancing under common law can be described as the transferring of a real property’s legal title from one individual to another. The term is also used to describe an agreement to encumbrance on a property via lien or mortgage.
The process of conveyancing usually involves two stages. These stages are the exchange of contracts between relevant parties, and completion of a conveyancing. Completion occurs when legal title has officially being passed.
Conveyancing or the sale of land is usually governed by the laws of the land where the real-property is located. But almost all legal jurisdictions prescribe that contracts concerning sale of land be in writing. The exchange of written land sale contracts involves dual copies of the contract being signed. A copy will go to each of the parties involved in the transaction. But in certain circumstances, it is sufficient to have only a single copy which will be signed by only one party but retained by the other. This practice makes it possible for contracts to be “exchanged” via postal means. Exchange can also occur via electronic means such as email as long as the laws of the jurisdiction provide for it.
A country’s conveyancing system is usually structured to make sure a buyer receives a secure title to purchased real property, as well as any other rights that accrue on a land. This is why a seller must notify a buyer of any restrictions on the real property before finalisation of a land purchase. Any seller who fails to disclose any important facts risks being found liable in a court of law. Legal systems such as the UK’s have put in place a system of land registration that facilitates conveyancing by allowing members of the public have access to records of land titles. This accessible land registry is capable of encouraging and assuring land purchasers of the reliability of a land’s title.
The buyer of real estate has a burden of duty to ascertain that the title obtained on a property is a marketable one. That is, the seller has a legal right to transfer title on the property to the buyer. And that there are no encumbrances on the land, such as a pending mortgage, court injunction, or other similar obstructions that will affect the buyer’s right to enjoy a purchased property.
In the UK, a solicitor or licensed conveyancer usually transacts and coordinates a conveyancing process. But it is not common for transactions to be carried out by an unqualified conveyancer.
During a conveyancing, what is been passed is a piece of real estate or real property that might include a principal dwelling structure and other appurtenances. That is, conveyancing transfers all rights in land, including the land itself and everything above and under it.
Because carrying out a conveyancing by oneself can be an intricate and time consuming venture, a number of solicitors offering various specialised services are usually available. But in a situation where a land transaction as to do with a mortgage, the mortgagee/lender will likely insist on the services of a certified solicitor.
A part of carrying out conveyancing involves the conveyancer carrying out a due diligence search by submitting various queries concerning the property in question. The purpose of a search is determine if there are any unknown or unseen pertinent facts that the surveyor or estate agent might have overlooked. These facts can usually adversely affect a purchaser’s enjoyment of real property.
A buyer or purchaser can hire a private search company to perform a search, or use a platform that has integrated with the Land Registry’s data. Using an online platform is faster as it quickens the search process, yields accurate results, and mitigates the likelihood of human error.
The following are some of the property searches usually carried out;
Local authority searches are important to the conveyancing process because it provides a land purchaser essential information concerning the state of the property. In recent years, there has been a preference for ordering a ‘personal’ search rather than relying on local authority searches. This is because the personal search yields faster results. The personal search involves a search provider or other third party commissioned by the conveyancer visiting a council office and inspecting the records available for information concerning a property. The search will provide information concerning if a property has planning issues, road works, is close to a railway or tube line, if the property is listed, and a number of other important details. Search costs can vary from council to council.
A water and drainage search will reveal if any public sewers are located within the property in question or if there are any in close proximity which could disrupt future building work or development on the property.
This search will also indicate if water mains and drainages are connected to the property. Also if the sewer system is adopted.
A personal drainage search can equally be ordered for. This will reduce costs but will often not deliver the same quality of information that a water and drainage search can offer.
This search is commonly used to identify environmental risks that are anywhere within a 500meters range of the property. The risks that will be taken into consideration include risks such as subsidence, flooding, landfills, landslides, waste sites, and any potentially contaminated sites. Mortgage lenders often insist on having this search performed.
This search will point out if a property is a neighbour to a common land or village green. It will also indicate if the property is built on formerly undeveloped land, or if a verge slip is separating the property from a public highway. If this search indicates that a land is registered under the 1965 Common Registration Act, a buyer might have to pay to make use it.