A reader wants to know if he can transfer his sister’s share of a property into his name without making use of an attorney.
He is the executor of the estate of his late parents and the fixed property owned by them was left to him and his sister.
His sister asked him to purchase her interest in the property, which he did by preparing the paperwork and together they signed what he refers to as “legal documents”.
See the reader’s question here.
The transferring of immovable property can be fairly involved and the formalities and details are of the utmost importance.
Due to the fact that the property being transferred from one person to another may be of considerable value, things going wrong could result in an expensive mess to fix.
It is also important to note that it is not just an attorney who is involved in the transfer process, but rather an attorney with an advanced qualification and permitted to practise as a conveyancer.
For a person to practise as such he must be admitted following an application providing proof that he is appropriately qualified and has satisfied the formal requirements.
The distinction between an attorney and conveyancer is of particular importance due to the starting point in the consideration of the reader’s question and which is set out in the Deeds Registries Act.
This states that, except if it is covered by any other law, no deed of transfer, mortgage bond or any certificate of registration mentioned in the act shall be executed by a registrar unless it has been prepared by a conveyancer.
As one can imagine, the process of transferring immovable property from one person to another is extremely reliant on accurate details being included in all the necessary paperwork and deeds.
A registrar at the deeds registry would not be able to research and vet every fact set out in every document placed before him and accordingly relies on the drafter to ensure the details are accurate.
This reliance is far-reaching and a registrar shall accept that the facts referred to in connection with the registration of a deed or other document, where a certificate has been signed, have for the purposes of such examination been conclusively proved.
The act also states that a conveyancer who prepares a deed for the purposes of registration, and who signs a prescribed certificate, accepts by virtue of his signature that the facts are correct.
This covers the scenario that all conditions contained in the title deed have been correctly represented and that the person who signs is qualified to do so.
The signing of the document confirms that all details in respect of the parties are correct and that all necessary authorities have been obtained for the signing of documentation.
Presumably the reader wishes to attend to the transfer of the property himself in an attempt to save costs.
However, it is clear that the process is perhaps not as simple as he might have imagined.
Professional assistance is definitely required and the reader may well find that a discount on the fees may be forthcoming from the conveyancer if a well-motivated request is made.
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