The laws surrounding the transfer of real property i.e. real estate, have been in existence for hundreds of years, and go back to the foundations of English common law, which is generally the basis for our legal system throughout the British Commonwealth. These laws have been tested in court hundreds of times over the centuries, through many different scenarios, until we now have a stable set of laws intended to be fair to all parties. Conveyancing, the process of transferring legal title of real property from a seller to a buyer, is part of this long established system.
Once a transaction has come under the control of conveyancing solicitors in Brisbane people feel confident that their transaction has been handled professionally, and the necessary documentation lodged with the appropriate authorities so the title transfers smoothly from one party to the other.
Sometimes however, prior to reaching that point, things can become unstuck. Finance arrangements can fall through at the last moment, settlements can be delayed, property searches can reveal hidden obstacles affecting the title, or proposed activity by local authorities that may compromise its value.
An interesting issue that would be unfamiliar to most lay people is the question of whether or not a buyer has to accept a transfer of land from a person who is not the seller named in the contract of sale. This situation could arise when the seller is buying the property from a third party and then on-selling it to the buyer in a simultaneous transaction.
The standard REIQ contract requires the seller to give the buyer at settlement a duly executed transfer of land, from them as the seller, which is able to be immediately registered. This means it must be a transfer from the registered owner of the land to the buyer. If the seller is not the registered owner of the land, they cannot comply with this part of the contract. The buyer does not have to accept the transfer from a person who is not the seller unless there is a special condition in the contract which directs him to do so.
If the situation demands it, the seller must direct the registered owner to execute a transfer in favour of the buyer. This is called a “transfer by direction.” If the seller needs a transfer by direction they must ensure that the special condition is in the contract to that effect, and the buyer needs to acknowledge at settlement that the seller is not the registered owner.
These types of situations do arise, but they are much more complex than a simple transfer. After getting professional advice about conveyancing in Gold Coast buyers could make these arrangements, but only under the guidance of their legal representatives.