Property rights
23/03/2004 The Star Articles of Law with
Bhag Singh
GENERALLY, buying a landed property may appear to be
a straightforward affair. Whether it is a house or an apartment or a
commercial property, the underlying principles are the same. There
should not be any problems.
A reader wants to know if, when a Sale and Purchase Agreement is
drawn up and the transaction is handled by a lawyer, the buyer is
absolutely safe so long as he has the means, either via cash or a
loan, to meet the purchase price?
The fact that the transaction is handled by a lawyer is not a
guarantee that there would be no problems in carrying out the
transaction or after the transaction has been completed.
Many elements and factors are involved in the acquisition of a
property. Depending on the nature of the property involved, input
from different people and parties may be required. A lack of input
in the appropriate manner may lead to complications and
difficulties.
A buyer of a piece of land may provide his lawyer with the title and
lot number of the land with its location. A copy of the title may
also be furnished. The lawyer will make a search to see whether
there are any encumbrances.
The purchase price may be deposited with or paid to the lawyer who,
after taking the necessary steps to have the ownership of the land
transferred to the buyer, releases the purchase price to the seller.
The transaction has at this stage been completed.
However, when the purchaser proceeds to use the land he finds that
the land is unsuitable for the purpose he had in mind. It may be
that the land is in a swampy area where he cannot plant the crops he
planned to, for example.
In such a situation the lawyer who handled the transaction and was
unaware of the purchaser's undisclosed intention has dealt with the
matter as instructed. What should the buyer have done in such a
situation?
The purchaser should have disclosed to his lawyer his plans for the
land and to ensure that appropriate provisions were included. If
this were the case it would have been helpful to engage a surveyor
or some other suitable specialist who could examine the land and
provide the necessary advice.
It would also be necessary to have incorporated appropriate
provisions requiring the seller to give undertakings and warranties
to ensure that the land was suitable for the purpose. Whether a
seller would be prepared to give such an undertaking and to what
extent would be a separate matter.
A different kind of problem could arise from the phrase “free from
all encumbrances” commonly used in Sale and Purchase Agreements.
A building may be constructed on the land belonging to the buyer but
there may be various types of protrusions which extend into the
airspace of an adjoining land which at the point of time of the
purchase was vacant.
Apart from protrusions, the previous owner may have constructed a
fence or even a structure that encroaches onto the adjoining part of
land which on ordinary physical inspection may not be obvious or
appear to be of little or no significance.
However, there may come a time when the owner of the adjoining land
may want to occupy the land and to construct a structure on it. Such
a person would be entitled to every inch of the land which belongs
to him.
If the local authorities have made a mistake in giving approval in
circumstances where there has been an encroachment, this does not
deprive the aggrieved party from asserting its rights.
However, instances where approval was given by a local authority
even though there is a form of encroachment into the space of
another are not unknown. Such approvals are in all likelihood
conditional so as to protect the interest of the person who could as
a result be aggrieved.
But such conditional approvals are not reflected by way of
endorsement on the documents of title and therefore are not easily
discoverable by the intended buyer of the property who must in such
cases protect himself with appropriate undertakings. Such incursions
would in law amount to trespass onto the adjoining land of the
neighbour to which he is entitled to object.
The purchaser will naturally feel that he is innocent because when
he bought the property it was in that condition and with those
features.
He will not be able to see the justification of giving up on these
and even worse, incurring expenses to have such incursions removed.
The purchaser may also feel that when he bought the property it had
been approved by the local authorities and that this would be an
indication of his righteousness and that he should now not be liable
for such alleged wrongdoing.
All this, however, will not constitute a valid argument against the
neighbour onto whose land there has been trespass by the purchaser.
No one including the local authorities would have the right to allow
one person to encroach into the property of another or to deprive
anyone of his property rights. |
