Where and why do we get a title search?
Title searches can be requested at the Registrar of Titles office, Suva. They are an essential step in the sale and purchase process because it puts both parties on notice as to any defects in or, encumbrances on, the title which might prevent it from being transferred on settlement. Note that it is best to request and obtain a certified title search.
When should a title search be requested?
Your lawyer should request a title search at the earliest possibility and most certainly before the sale and purchase agreement is executed. It is no good finding out that the title is subject to a troublesome encumbrance after you have entered into and are bound by the terms and conditions of the S&P.
What does a title search tell us?
The title search informs us of the legal description of the property, the current owner’s name, all underlying encumbrances (including but not limited to mortgages, caveats, liens, judgments, deeds etc…etc…), and any other underlying matters, such as easements, restrictive covenants, and other types of agreements which may affect and run with the land.
Which party to the transaction needs to conduct the title search?
Both parties to the transaction should request fresh title searches. The purchaser will want to know exactly what (if any) adverse interests have been registered on the title that will affect his or her interests. The vendors solicitor should also request a title search if for no other reason than to ensure that no adverse interests have been registered on the title that the Vendor has overlooked or failed to mention (it happens more often than you would think).
What happens if there are encumbrances on the title?
Your lawyer will need to obtain a certified copy of the encumbrance(s), to determine if it is something to worry about. For instance, in the case of a mortgage, the Vendor will usually simply need to arrange with his or her mortgagee (the lender of the money) to discharge the outstanding amount on settlement. However, if the encumbrance is of a more serious nature, such as a caveat, this will likely cause problems, especially if the caveator still considers his or her interest in the property as ongoing.
That’s it for this week. Do not hesitate to contact us with questions at property.primer@fijitimes.com.fj. Have a good weekend and, we’ll see you again next Saturday.
DISCLAIMER: Please be advised that the contents of this column are intended for informational purposes only and are not intended to convey or constitute any form of legal advice whatsoever. You should not act upon any information contained herein without first seeking qualified professional counsel on your specific matter.
