Even before drafting the document, the seller’s conveyancing solicitor should have ascertained that the entire property intended to be sold, indeed belongs to the seller. Only sole owners who own the whole and equitable interest in the property can sell the property. But sometimes, the following circumstances need further consideration:
Trustees
In instances where a second trustee is needed to overreach a beneficial entitlement, the same should be mentioned in the contract. Either, the second trustee should be a party or a special condition should be included in the draft requiring the seller to appoint a second trustee to be a party to the transfer.
Personal representatives
When one person is named as a proving personal representative, he is authorised to contract for the sale of land on his own. But if there is more than one personal representative, all of them should be included in the contract.
Mortgage lenders
A lender planning to sell a property should have express or implied permission to sell the property and the right should become exercisable. It is the duty of the conveyancing solicitor who is in charge of drafting the contract, to include the details of the mortgage document, and the fact that the mortgagee is now in charge of the property and that the mortgagee is selling the property under his right to sell.
Persons suffering from mental disability
A contract entered by a person who is mentally incapacitated to enter into a contract for sale or understand the nature of the transactions related to the sale, can be deemed voidable at the option of the incapacitated person. But he will have to prove that at the time of the entering the contract, the other party was aware of the person’s mental disability.
Under the Mental Capacity Act 2005, the mentally incapacitated person can have a finance deputy appointed by the Court of Protection. And when such a deputy requests that a restriction is entered on the title, no further transactions can be registered unless the same is made after an order of the court.
Photo courtesy: Paraflyer
