This article discusses the power of personal representatives to undertake a conveyance of sale. It discusses issues that cause a title to become less than satisfactory and remedies available to the buyer.
General
A power representative has the same power as a trustee of land. When there is only one power representative, he has the right to convey the land on his own and sell it (unlike a sole trustee). But when the grant is made to two or more people, all of the representatives should have consented to the conveyance. The buyer should check for the number of people named as representatives and should insist that all representatives mentioned in the deed should have agreed to the conveyance. The buyer can also ask for evidence of death of any personal representative who will not be a party to this.
Registered land
A grant of probate makes personal representatives registered proprietors of the land and allows them to sell the land. But the buyer should deal only with the registered proprietors and comply with all the restrictions to get a good title.
However, it is common for personal representatives to not register the property in their names unless they intend to hold it for some time. When such representatives sell the land, they produce the grant of probate to the buyer to prove that they are authorised to sell the land. The buyer will have to obtain a transfer from all representatives and submit a certified copy of the grant when applying for registration to obtain a good title.
Unregistered Land
Assents
In the case of an unregistered land, the personal representative can pass the legal estate to the beneficiary through an assent. Such an assent should be made in writing and the beneficiary should be named in such a document. If the document contains a covenant, it should be made by a deed. Such a written assent is required even when the beneficiary is the sole personal representative (for instance, a widow who is her husband’s sole representative and beneficiary). A buyer who buys property from an assentee must check that a memorandum of that assent was endorsed in the grant of representation. Otherwise, it is always possible that a later sale by the personal representative to a buyer will deprive the assentee of the legal ownership.
Section 36 Statement
S36 of the Administration of Estates Act 1925 aims to protect the interest of a buyer who chooses to buy from a personal representative. There is always a chance that a personal representative who is not dealing with his property and his perhaps involved in the sale of a large and complicated estate, is more likely to commit a mistake and may even dispose of the same property twice. S36 aims to prevent this. A buyer can take good title from personal representatives even when there is a prior disposition by them, if:
a) The personal representatives make a statement that they have not made any previous assent or conveyance on the same land.
b) There is no memorandum of conveyance or an assent that was endorsed on the grant
c) There has not been any conveyance on the land intended to be sold, previously.
However, the effect of S36 is that the buyer may risk losing title to the later buyer who relies on section 36. The only solution before such an assentee is that he should insist that the memorandum was endorsed on the grant of probate.
And when the land is to be registered for the first time, an endorsement on the grant of probate is not required. The registration should prevent disposal of the property twice.
Acknowledgement for Grant
Disposition from personal representatives should include an acknowledgement of the right to production of their grant of probate as this is a document that may be required b subsequent buyers of the land. The grant should be inspected to check for endorsements which have been made on it.
Naming the Beneficiary
A buyer who buys property from an assentee after checking the grant and having found no adverse endorsements need not look into the will of the deceased person to verify if the assentee was indeed entitled to the land. However, under S36 of the Administration of Estates Act 1925, the buyer cannot be protected if it is made apparent from some other source that the assent was made in favour of the wrong person.
Investigation of Title Points
When investigating an unregistered title, the following points should be checked:
a) On a sale by personal representatives
v check the authority of personal representatives by inspecting the grant of probate
v Check that all personal representatives are joined in the conveyance
v Check that the grant of probate does not include a memorandum of a prior disposition of the land
v Check that the conveyance contains a statement under S36
v Check that the conveyance includes an acknowledgement for the production of a grant
b) On an assent by personal representatives
v The buyer should check the authority of the personal representatives by inspecting the grant of probate
v Make sure that all personal representatives are joined in assent
v Check that the grant of probate does not include a memorandum of a prior disposition of the land
v Check that the grant of probate does not include a memorandum of the assent, and
v Check that the assents contain an acknowledgement for the production of the grant.
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