Wednesday, June 4, 2008

Death of the Registered Proprietor

There may be a situation where a purchaser seeks to buy real estate and discovers that the owner has died. There may even be a more difficult circumstance, that is, where the Vendor dies in the middle of the transaction.

Death before Contract

In the case where the Vendor has died prior to the execution of a contract for sale then the question is who is now the proper person to handle the affairs related to that property and if the property is to be sold who can sell same.

If the Vendor has left a will naming an executor then the executor can sell same but most lenders will require proof of the executor's office by requesting to see a grant of probate. Though an executor steps in the shoes of the deceased on death, this request makes sense and a prudent Purchaser who is paying cash without resort to a lender should follow suit. If not he runs the risk of entering into a contract with a "Vendor" who has no authority to sell and who cannot effect a transfer of the property.

If the Vendor has not left a will naming an executor than an Administrator being the deceased's personal representative is a person who could be authorized to sell. In this case the proof of authority is a grant of letters of administration.

In the above situations a lawyer will be able to guide a Purchaser as to the best way to proceed so that he does not fork out funds to pay a deposit to buy property from someone who is not authorized to sell.

Death after Contract

If the Vendor dies after the contract is signed by all parties and the deposit is paid by the Purchaser then the personal representative of the deceased ie. Executor or Administrator can complete the transaction.

There is a useful and interesting section under the Registration of Titles Act of Jamaica which provides that the Registrar of Titles may in his discretion make a vesting instrument, vesting land in a purchaser and issuing title in the name of the Purchaser where there is sufficient evidence of certain conditions namely:
  • the land has been sold
  • all the purchase money has been paid
  • the purchaser with the agreement of the vendor/his personal representative has entered into possession of the land
  • the land cannot be transferred to the Purchaser as the vendor/his personal representative is dead, absent from Jamaican or cannot be found or such circumstances exist to make it impractical to obtain the signatures of the vendor/his personal representative in a reasonable time.
If a Purchaser finds himself in the situation outlined above, it is recommended that he consult an attorney to make the necessary application to the Registrar of Titles so that he can obtain title in his name.

No comments: