Conveyancing


Gittens Smart & Co. has a rich and long established reputation of being one of the most thorough, efficient and professional legal firms of conveyancers. On average it would take approximately three weeks from the date of receipt of instructions to complete a conveyancing transaction, i.e. (barring any complications in title) the sale or mortgage of a property.

What is Conveyancing?


Conveyancing is the method by which land is transferred from one person to another. The conveyancing process is usually commenced by the signing of a sale agreement for the purchase of land by the parties. In Trinidad & Tobago the agreement must be in writing and duly signed by both parties (the Vendor and Purchaser). It is advisable to retain an Attorney from the beginning to prepare or vet the agreement and in the normal course the Purchaser's Attorney will be responsible for checking and approving the title to the property and preparing the final document which is called the conveyance. The most important aspect of the work by the Attorney completing the transfer is to make sure the Vendor has good title, and in order to ascertain this, he/she must conduct a title search. The way in which the search is conducted is determined by the manner in which the land is held or registered.

Land Registration Systems


There are two systems under which land is registered in Trinidad & Tobago, namely:

  • The old common law system of conveyancing
  • The Real Property Ordinance (R.P.O.) system of conveyancing also known as the Torrens system.

The common law system of conveyancing is based upon a system of registered deeds relating to the transfer of land. The original deeds are lodged at the Deed Registry of the Registrar General's Office and searches are conducted in the registry to trace the Vendor's title and for determining how the vendor acquired ownership of the property being sold.

The Attorney then prepares an abstract of title consisting of a list of documents, facts and events setting out the history of ownership and all dealings with the property for a period of at least twenty years. The first document in the abstract is called the root of title and thereafter, for good title to be constituted there must be in chronological order, a chain of title that continues from the root to the Vendor free from all encumbrances and without any break.

Title to property is either freehold or leasehold. In the latter case, the land is held for a term of years ranging from 25 years up to a maximum of 999 years. If property is being transferred by a lease as in the case of a sale of a townhouse or condominium the first lease is prepared by the Vendor's Attorney, not Purchaser's Attorney as in the case of a freehold transfers, but the legal fees are paid by the purchaser to the vendor's attorney. The rationale for this is that the Vendor has the right to determine what the terms of the lease should be and his attorney should therefore prepare the lease. The Purchaser could have his Attorney revise and approve the lease but he must also pay his Attorney's fees.

Under the R.P.O. system all dealings with land or property are recorded on a document called a Certificate of Title. The original of this document is kept in the Land/R.P.O. registry of the Registrar General's Office and a duplicate of same is kept by the owner of the property or any other party (e.g. a bank) who has an interest in the property. Any properly registered interest on the property becomes indefeasible and if party to such an interest is fraudulently deprived of his interest he can claim against the land assurance fund. This process is much simpler than the common law system as all dealings with the land are endorsed n the back of the original and duplicate Certificate of Title and the history of the property is very easy to ascertain. The registration of any transactions with the land (e.g. a sale or mortgage) must be accompanied by the duplicate Certificate of Title.

Joint tenancy


A joint tenancy arises whenever land is conveyed or devised to two or more persons without any words to show that they are to take distinct and separate shares, or, to use technical language, without words of severance.

The two essential attributes of joint tenancy are the absolute unity which exists between joint owners, and the right of survivorship. Unity is fourfold, consisting of title, time, interest and possession. To put the concept simply: each owner owns the entire property. Their separate shares are not divisible per se. The right of survivorship means that an owner's interest is extinguished upon his death and accrues to the surviving owners whose interests are correspondingly enlarged.

Tenancy in common


A tenancy in common arises:

  1. where land is limited to two or more persons with words of severance showing an intention, even in the slightest degree, that the owners are to take separate shares, or
  2. where equity reads what is at law a joint tenancy as a tenancy in common, or
  3. where one joint owner disposes of his interest to a stranger, or acquires an interest greater than that of his co-owners

The following expressions have at one time and another been construed as words of severance sufficient to create a tenancy in common:

  • equally to be divided;
  • to be divided;
  • equally; and
  • amongst.

On the death of a co-owner in a tenancy in common his/her share goes to the estate and not to the surviving co-owners as in the case of a join tenancy. A co-owner in a tenancy in common can dispose of his/her share by a will, but a co-owner in a joint tenancy cannot dispose of his/her share by a will.

The three methods by which a tenancy in common or a joint-tenancy is determined and converted into separate ownership are (a) partition, (b) sale, and (c) the acquisition by one tenant, whether by grant or by operation of law, of the shares vested in his co-tenants.

A joint tenancy can also be severed and converted into a tenancy in common if the co-owners make a declaration to that effect by deed, or if one of the co-owners mortgages his share which will have the effect of severing the unity of title.

The Conveyance


The completion of the transfer usually involves co-operation between the parties and their attorneys, and where the purchaser is seeking finance to purchase the property, from the bank or lender and their attorney. Thus in order for the transaction to flow smoothly and for completion to be expedient, the parties should submit to the attorney preparing the transfer and/or the attorney preparing the mortgage for the lender if applicable all necessary documents as soon as possible. The following documents are usually required:

  • The sale agreement signed by the parties;
  • The Deed of Title or Certificate of Title (if in the Vendor's possession);
  • Current receipts for Land and Building taxes, Water and Sewerage Rates and Land Rent (if applicable) and Service charges and the original share certificate (in the case of a Town House or Condominium) and a WASA clearance certificate;
  • If the property is scheduled for development by the vendor before completion (or recently developed), the planning approval from Town and Country Planning for such development; and
  • If there are any outstanding Mortgages, the Deed of Release/Memorandum of Discharge executed in escrow, together with a statement of the balance of principal and interest owning on the mortgage and the legal fees for preparing the Release of Mortgages.

As soon as the Attorney receives instructions to prepare the conveyance he will give instructions to the title clerk to conduct a search of title. The search will indicate the history of the property and manifest whether it is subject to any encumbrances. The search usually takes about two to three weeks and cost between TT$500 - TT$1000.

Once it appears that the title is in order the relevant transfer documents can be prepared. These usually consist of a Deed of Transfer by which ownership in the property will move from the Vendor and Purchaser. Where the purchaser is taking mortgage financing, the lender's attorney will also have to verify good title and then prepare the documents effecting the mortgage for the purchaser to sign.

The Purchaser's Attorney is usually responsible for arrangements pertaining to the closing of the transaction and if the Purchaser is taking mortgage financing the Lender's Attorney will co-operate and communicate with the purchaser's Attorney and the Vendor's Attorney to close the transaction. When all the transfer documents have been signed by all parties involved, the balance of the purchase price is paid to the Vendor and the sale in finalized.

Probable Causes of Delay


The length of the title search depends on whether it is under the Common law or under the R.P.O. system.

A title search under the R.P.O. system can usually be completed in two days. However, locating the whereabouts of the duplicate certificate of title can delay the process.

With respect to title searches under the common law, the time of the search depends on the ward in which the property is located and the availability of the Country Books for conducting the title investigation. Some wards such as St Anns are quite large and thus the search may take longer. The average title search is completed within two to three weeks.

If the title is found to be defective then there could be delay in having the defects rectified.

Delay usually occurs in the following circumstances:

  • If there is a defect in title.
  • If there is an existing mortgage to be liquidated - this can delay the transaction, as the attorney must ensure that the release of the mortgage has been put into place.
  • A judgment against the property is discovered - a judgment obtained in the High Court and has been duly registered operates like a charge against the property of the person whom it is against. Any subsequent purchaser takes the property subject to the charge thereby created and the person who has registered the judgment may enforce the judgment debt by obtaining a court order for the sale of the property.
  • A Lis Pendens is discovered - this gives notice of a high court action that may affect the property.
  • There is a missing Certificate of Title.
  • The Land and Building Taxes Receipt are not in the name of the Vendor.
  • A party to the transaction resides abroad.
  • A previous owner is now deceased which, depending on the manner of ownership, might require either the production of a death certificate or a Grant of Probate or letters of Administration {See Estate/Probate page}.

Land Purchases by Foreigners


Foreigners (including companies and individuals) are able to purchase land in Trinidad & Tobago, however the quantity of land that can be purchased is limited. The Foreign Investment Act 1990 prescribes limits of up to one acre for residential purposes and five acres for commercial purposes provided that the purchase price is paid in an internationally traded currency through a bank or other financial entity authorized by law as a dealer in that currency.

Additionally the individual or company must deliver a notice to the Minister of Finance specifying his name, address, nationality and the date and registration particulars of the instrument by which he has become the owner of the property and evidence of his payment in foreign currency.

If a foreigner wishes to purchase land in excess of the stipulated acreage, he must apply for a license from the President of the Republic in order to do so. The application must indicate the proposed land use and must comply with the controls and restrictions of the relevant planning and environmental authorities.

Stamp Duty


The next step in the conveyance is to have all the relevant documents stamped by the Board of Inland Revenue. The stamp duty varies according to whether documents being stamped concern Residential transfers, Commercial transfers or Land alone.

  • Residential Land

    Where the property is or includes a dwelling house and the property is kept for wholly or mainly residential purposes the stamp duty is as follows:

    Up to TT$450,000.00 0%
    Next TT$100,000.00 5%
    Next TT$100,000.00 7.5 %
    Over TT$650,000.00 10%
  • Commercial Property

    Where the Property is a commercial property the stamp payable is as follows:

    Under TT$300,000 2%
    Between TT$301,000 - $400,000 5%
    Between TT$401,000 - $500,000 7%
    Over TT$500,000 7% on the full amount
  • Land Alone

    Where the property sold contains land alone the stamp duty payable:

    Under TT$300,000 2%
    Between TT$301,000 - $400,000 5% on the full amount
    Over TT$401,000 7% on the full amount

Attorneys' Fees Charged for a Conveyance


The Attorneys' fees charged for any conveyance are stipulated in the Legal Profession Act, 1986 Rules - The Attorneys-at-law (remuneration) (non-contentious) business Rules, 1997

The scale of charges for common law conveyancing transactions -

For preparing Conveyances or Mortgages is as follows:

  • For a Conveyance or Mortgage not Exceeding TT$100,000 - One and one half percent of the consideration with a minimum fee of TT$400.
  • For a Conveyance or Mortgage exceeding TT$100,000 but not exceeding TT$500,000 - One and one half percent of the first TT$100,000 and three-fourths percent of the consideration in excess of TT$100,000.
  • For a Conveyance or Mortgage exceeding TT$500,000 and not exceeding TT$20,000,000 - the same charges as on the consideration of TT$500,000 plus one half percent on the excess beyond TT$500,000.

The scale of charges for R.P.O. transactions for preparing transfers and Mortgages is as follows:

  • For a Transfer or Mortgage not exceeding TT$25,000 - TT$500
  • For a Transfer or Mortgage exceeding TT$25,000 - TT$500 for the first TT$25,000 of the consideration and TT$30 for every TT$5,000 or part thereof of the consideration in excess of TT$25,000

Measures of land used in Conveyancing


40 Perches 1 Rood
4 Roods 1 Acre
3 Acres + 32 Perches 1 Quarree
8 Lots 1 Acre
2 Lots 1 Rood
2.471 Acres 1 Hectare
0.4047 Hectares 1 Acre
43,560 Square Feet 1 Acre

Area


To convert Multiply By
Square Feet to sq. metres 0.92903
Acres to sq.metres 4,046.856
Acres to hectares 0.040469

The material contained in this site provides general information on the laws of Trinidad and Tobago. Nothing in this site constitutes legal advice. Furthermore, we have no control over the websites to which we provide links to and are in no way responsible for their contents.
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