Buying a property is one of the major investment purchases that many people will do in their lifetime. Except you are a legal practitioner, there are certain steps in the process that could be confusing. These aspects are generally fundamental but those ignorant of the process may dismiss them to their own detriment. Representation, documentation, execution, perfection and transfer of titles in general can be cumbersome if not handled properly. There are legal pitfalls to watch out for and avoid.
There is wisdom in involving a legal practitioner in this process. Some people try to be cheap by trying to understand and manage the process themselves. This is not practical. We have said it several times that it is always better to retain the services of appropriate professionals in various aspects of real estate investment. The earlier in the process this is done the better. For instance, at an early stage, there will be a need to confirm the authenticity of title documents or to negotiate various issues that will later form part of the agreement between the parties. Waiting until the last minute before involving your lawyer can be costly, especially if the other side is properly represented.
Documents relating to real estate transactions are very sensitive documents that should be drafted by Lawyers. It is unfortunate that in the past some sellers and buyers attempted to draft these documents themselves even though they did not know the meaning or importance of the documents.
Each real estate transaction is unique in itself and this uniqueness is often captured in the documents used. There are various types of documents as well. In some cases, a contract of sale may be necessary while in some cases, a deed of assignment is all that will be required to secure the transaction. Don’t assume that you know and don’t attempt to short-circuit the process.
When it comes to executing or signing a legal document, not just anyone connected with the property can sign it. When buying from traditional families, you should ensure that the family head and their secretary, if they have one, are involved in the process. If any signatory is an illiterate and they sign the document without someone interpreting it to them before signing, they can claim ignorance of the content of the agreement later. The document should not only be read to them in the language they understand, the name of the interpreter must be stated, using an appropriate format. When dealing with a legal entity such as companies and associations, specific legal formats also apply.
It is always important to ensure that you are dealing with the person or persons with the legal authority to sell the property. Where the owner of the property is deceased but left a Will, the right people to deal with are his or her duly appointed executors or executrixes. If the deceased died intestate or without leaving a Will, those who believe they should be his legal representatives should apply for a Letter of Administration.
The transfer of title of such a property can only be done by those stated in the Letter of Administration. This is particularly important in cases where there are multiple beneficiaries such as in a polygamous setting. While the beneficiaries are not expected to always be in agreement, the probate or Letter of Administration is clear as to their legal representatives.
An issue that can become a sore point and should be clearly stated in the agreement is the financial responsibility of each party. Real estate transactions involve the payment of professional and government fees at one stage or the other. These fees are calculated using a percentage of the sale price. Often the issue of who should pay what can become a sore point between the parties, as they seek to shift responsibility if it had not been discussed and documented. When the parties to a transaction leave critical issues out of their agreement, this could be a basis for conflict and litigation.
One of the issues that is becoming increasingly necessary to discuss is the obligation of the seller to give all the assistance needed to ensure that the title of the buyer is perfected without any further financial obligation. The experience of a lot of people in recent years is that some sellers see any request from the buyer at a later date as an opportunity to extort the buyer. Buyers should discuss this issue with their lawyers and ensure that their interest is protected.