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Property and Estates

THE FIRM

The Firm has benefited from a long line of established Conveyancers and continues today with a collective experience presently of 100 years.

Our records of title to properties in Trinidad and Tobago date back to 1944.

Our team consists of Edward A. Collier, Mark J. Laquis, Lisa Fulchan, Ramona L. Mohammed, Shivani Jacelon, Oneesha Paul and John Paul Nahous.

Our Department performs services for individuals, companies, a large majority of the financial institutions and insurance companies.

Our main areas of practice are:

  1. Real Estate
    • Sale/Purchase of Property
    • Property Development
    • Townhouse Development
    • Mortgages
  2. Leases
  3. Trusts
  4. Wills
  5. Probate
  6. Powers of Attorney

REAL ESTATE

Land in Trinidad and Tobago can be generally classified into Public or State Lands and Private Lands.

There are two different types of landholdings existing simultaneously in Trinidad and Tobago, these are:

  • Lands held under the Common Law system (a registration of deeds system)
  • Lands held under the Real Property Act Chapter 56:02 (R.P.A.) (a registration of title system).

Generally all State and private lands fall under one of these two systems and are held in fee simple otherwise called freehold. Both State and private landowners can create lesser interests by way of leases in these lands. These lesser interests are known as leasehold interests.

The usual categories of land use (State or private) are residential, agricultural, commercial, industrial, light industrial and forestry.

SALE AND PURCHASE OF PROPERTY

When purchasing property in Trinidad and Tobago, either land alone or land and building, it is advisable to enter into a proper agreement for sale and purchase of the same which correctly identifies the parties; the property being purchased; the amount being paid; the deposit being paid (usually 10%); whether the deposit is to be held in escrow or not; the time for the completion (usually 90 days) and the consequences of default by either party.

It is a legal requirement that the agreement is made in writing and signed by all parties.

Instructions for purchase of the property are then given to the Purchaser’s Attorney-at-Law to handle the transaction on his behalf.

The Purchaser’s Attorney arranges an investigation of the title to the property and reports his findings to the Purchaser and makes such requisitions on the title as may be necessary.

The Purchaser’s Attorney has to ensure the production of all the necessary documents required for completion of the sale such as:

a) Town and Country Planning approval, (b) receipts for lands and buildings taxes; (c) lease rent; (d) water and sewerage rates; (e) WASA clearance certificate; (f) consent (in case of a leasehold interest); (g) a release of any existing mortgage; (h) discharge statement showing the amount outstanding under any existing mortgage; (i) a note of the legal charges for the release; and (j) discharge of any judgments or other encumbrances.

The Purchaser’s Attorney prepares the Deed of Conveyance in the proper form and, if required, submits the same to the Vendor’s Attorney for approval.

Purchase of Property by Foreign Investors. The Foreign Investment Act Chap 70:07 allows Foreign Investors (Non Citizens of Trinidad and Tobago or certain Caricom Countries) to purchase in Trinidad no more than One Acre of land for residential purposes and Five Acres for commercial use without a licence from the Ministry of Finance as prescribed by the Act.

The purchase price for the purchase of property in Trinidad and Tobago by a Foreign Investor must be paid in an internationally traded currency deposited in a local financial institution and disbursed by them and notice thereof provided to the Ministry of Finance.

In 2007 Tobago was proclaimed as an area where all Foreign Investors must obtain a licence permitting them to purchase any property.

Stamp Duty The purchase of property in Trinidad and Tobago is subject to a Stamp Duty Tax, payable by the purchaser, the rate of which depends on the type of property being purchased, i.e. residential or other and is assessed on the higher of the value of the property or the amount being paid for the same. The applicable rates of stamp duty payable are set out below:

(a) Residential Land and Building
Where the value of the property is $850,000.00 or less – Exempted
For every dollar of the first $400,00.00 in excess of $850,000.00 – 3%
For every dollar of the next $500,00.00– 5% For every dollar thereafter – 7.5%

(b) Residential Land Alone
Where the value of the property is $450,000.00 or less – Exempted
For every dollar of the first $200,00.00 in excess of $450,000.00 – 2%
For every dollar of the next $200,00.00– 5% For every dollar thereafter – 7%

(c) Other Property
Where the value of the property is less than $300,000.00 – 2% of the value.
Where the value of the property is less than $400,000.00 – 5% of the entire value.
Where the value of the property is more than $400,000.00 – 7% of the entire value.
The legal fees for handling the purchase of a property is a scale fee set out at the Attorneys-at-Law (Remuneration) (Non Contentious Business) Rules 1997.

MORTGAGES

Mortgages are usually given by Financial Institutions in Trinidad and Tobago. When a mortgage has been approved, instructions are sent by the Financial Institution to their Attorneys to prepare the mortgage at the cost of the borrower.

Our firm is on the panel of Attorneys-at-Law for several Financial Institutions including:

  • Republic Bank Limited
  • The Home Mortgage Bank
  • First Citizens Bank
  • Firstcaribbean International Bank
  • Scotiabank Trinidad and Tobago Limited
  • AIC Financial Group Ltd.
  • Intercommercial Bank
  • Guardian Life of the Caribbean Ltd.
  • ANSA Merchant Bank Limited

UNDERSTANDING THE MORTGAGE TRANSACTION

What are the steps in an average mortgage transaction?

  1. Letter of Instructions from the Bank is received;
  2. Title Search instructions are prepared and given to the Title Clerk and a letter sent to the Bank indicating, subject to satisfaction of title, the documents needed to complete this transaction;
  3. Title Clerk’s report is received and perused by the Attorney who either approves the title or raises queries. In case of queries, either further searches may be conducted or a report sent to the Bank and the Borrower outlining the nature of the query and manner of solution;
  4. In matters in which the title to the property falls under the provisions of the Real Property Ordinance Chap. 27 No. 11 (“RPO”) an enquiry be made of the appropriate parties for location of the duplicate Certificate of Title;
  5. In case of an outstanding mortgage, the Attorney sends a letter to the Lender/ Mortgagee requesting the amount outstanding on the existing mortgage and the preparation of the Deed of Release/Memorandum of Discharge for execution in escrow pending completion;
  6. Once the title is in order, a letter is sent to the Bank and copied to the Borrower reporting on the title and indicating what further documentation, if any, is required;
  7. The Deed/Memorandum of Mortgage is prepared, settled and engrossed;
  8. The Attorney and/or assistant liaises by telephone or correspondence with the Vendor’s  or his/her Attorneys and the Mortgagee’s Attorneys regarding sale of property and clearance of any existing mortgage thereon;
  9. Arrangements are made to complete the matter and the cheque requested.  The Attorney receives and verifies the accuracy of the redemption statement from the Mortgagee;
  10. Arrangements are made for the Borrower to attend the Attorney’s office for completion;
  11. The Attorney liaises with the Vendor/Vendor’s Attorney and the Mortgagee to make final arrangements for completion and exchange of Deed/Memoranda of Conveyance/ Transfer and Release/ Discharge and where appropriate duplicate Certificate of Title.
  12. The Title Clerk updates the title searches at the Registrar General’s Department and where appropriate the Companies Registry which is reviewed to ensure that the title remains good;
  13. At completion the Attorney (a) meets with the Borrower/Mortgagor and ensures that he/she understands the provisions of the Deed/Memorandum of Mortgage answering all questions relating thereto (b) ensures that Borrower/Mortgagor signs the Deed/Memorandum of Mortgage and the Loan Repayment Letter and(c) provides the cheque to Borrower/Mortgagor where appropriate;
  14. The Bank is advised by letter of the completion of the transaction;
  15. The affidavit is prepared and the documents are stamped, copied and registered;
  16. Particulars of registration are endorsed on the copies of the Deed/Memorandum of Mortgage; a letter to the Bank is prepared enclosing completed copies of the Deed/Memorandum of Mortgage and the Deed of Conveyance/Lease or Memorandum of Transfer/Lease vesting the property in the Borrower/Mortgagor.

What are possible causes for delay in completion of a mortgage transaction?
When instructions are received, the title search of the property is immediately put in train.

The length of time for the searches will vary depending on whether title to the property falls under Common Law or under the provisions of the RPO.

A search of title to the property under the RPO can usually be completed within two days.  However, locating the whereabouts of the Certificate of Title can take up to a week.

With respect to searches of property which are governed by the Common Law the time for completion of the searches will depend on the Ward in which the property is located and the availability of the Country Books for conducting the title investigation.  An average title search may be completed within 14 days.  If the title is found to be defective then there could be delay in having the same rectified

In a mortgage transaction where there is a good root of title and no problems encountered in completing the title search, delays may occur for one or more of the following reasons:

  1. there is an existing mortgage to be liquidated – this can delay the transaction, as we must ensure that the release of the existing mortgage has been put into place;
  2. a judgement is discovered – a judgement, which has been obtained in the High Court of Justice and duly registered, operates like a charge over the property of the person against whom it is registered.  If you purchase land from someone with a judgement registered against him or her you take the property subject to the charge thereby created and the person who registered the judgement may enforce the judgement debt by obtaining from the Court an order for sale of the property;
  3. a lis pendens is discovered – this gives notice of a High Court Action that may affect the property;
  4. there is a missing Certificate of Title;
  5. the Lands and Buildings Taxes receipt is not in the name of the Vendor or the Borrower;
  6. there exist discrepancies between assessment numbers stated on Lands and Building Taxes receipts and WASA receipts;
  7. a party to the transaction resides abroad;
  8. a previous owner is now deceased which, depending on the manner of ownership, might require either the production of a death certificate or a Grant of Probate/Letters of Administration; and
  9. the unavailability of completion documents.

What are the completion documents usually required for the most common mortgages?

Completion Documents

In instances, where a consent to mortgage is required the Attorney will usually apply for this.  The application for the consent must include copies of the Deed of Lease, up to date lease rent receipts, up to date maintenance/service charges payments, WASA receipts and Lands and Buildings Taxes receipts.  If these documents are not available at the time when the Attorneys receive the instructions they will not be able to apply for the consent until received and this will further delay the process.

Delays may be avoided if the Borrower obtains all of the necessary documents necessary for completion in a timely manner and where a purchase of a property is involved, the Borrower makes application for the loan immediately after signing the agreement for sale so that the title investigation can commence in the earliest possible time.

How much are the fees for a conveyance or mortgage? 

The fees are calculated on a scale of charges allowable by law as follows:

  • Not exceeding $100,000.00
    • One and one half percent of the consideration with a minimum fee of $400.00;
  • Exceeding $100,000.00 and not exceeding $500,000.00
    • One and one half percent of the first $100,000.00 and three-fourths percent of the consideration in excess of $100,000.00; and
  • Exceeding $500,000.00 and not exceeding $20,000,000.00
    • The same charge as on the consideration of $500,000.00 plus one half percent on the excess beyond $500,000.00

Where the same Attorney prepares both the conveyance and the mortgage one half of the above scale is charged for preparation of the mortgage.

Some examples of the estimated scale fees and disbursements for mortgages are set out hereunder:

Mortgage for $100,000.00


Legal fees:
$1,500.00 plus VAT
Stamp Duty: $   400.00
Searches: $   550.00
Registration: $   100.00
Oath: $       3.00
Total $2,778.00

Mortgage for $500,000.00


Legal fees:
$4,500.00 plus VAT
Stamp Duty: $2,000.00
Searches: $   550.00
Registration: $   100.00
Oath: $       3.00
Total $7,828.00

Mortgage for $1,500,000.00


Legal fees:
$ 9,500.00 plus VAT
Stamp Duty: $  6,000.00
Searches: $     550.00
Registration: $     100.00
Oath: $         3.00
Total $17,578.00

The stamp duty shown in the examples above relates to a transaction where the property is already owned by the Borrower at the time of the mortgage.

In the case where a dwelling house is purchased and mortgaged at the same time the stamp duty on the mortgage will be one half of the amount shown.

LEASES

A landlord and tenant relationship arises when by contract the owner of the property grants another person exclusive possession of the property for an agreed fixed period, usually in return for the payment of rent.

The lessee must have exclusive possession, i.e., the right to control the property and to exclude everyone else from it (subject to any rights of entry or re-entry reserved to the landlord). If a term of lease is made for three (3) years or more, the lease must be made and executed by deed and duly registered as the same, however, any agreement in writing to let may be valid and take effect as a yearly tenancy.

Tenancies may be made for a fixed period or may be periodic, eg. month to month or year to year.

Both parties to a lease will have certain rights and duties by which they must abide. Since a lease is a contractual relationship, both parties are in essence free, to an extent, to include any provisions in the lease that they wish subject to implied laws.

Land Tenants (Security of Tenure) Act Ch. 59:54
The Land Tenants (Security of Tenure) Act (“the Act”) Ch. 59:54 applies to tenants who on 1st June 1981 were in occupation of residential lands and had erected upon the said lands a chattel house with the consent or acquiescence of the landlord which said chattel house is affixed to the lands in such a way that it is incapable of being removed without destruction. The Act provides security for such tenants.

Section 4 provides that by operation of the Act, every tenancy to which the Act applies and which existed before the 1st June 1981, becomes a stautory lease. The Act goes on to provide that a statutory lease shall be a lease for 30 years commencing from 1st June 1981 and which is renewable by the tenant for a further period of 30 years.

The terms and conditions of any existing tenancy converted into a statutory lease shall be incorporated on the terms and conditions in the said statutory lease, subject to certain exceptions laid out in section 5 of the Act.

The Land Tenants (Security of Tenure) (Amendment) Act 2010 has amended the Act so that the exercise of this renewal by written notice to the landlord may take place at any time on or before the expiration of the original lease (1st June 2011).

In addition, by virtue of section 5 (5) of the Act, the tenant has the option to purchase the lands at any time during the term of the statutory lease at a price not exceeding 50% of the open market value of the land (without considering the chattel house thereon). Importantly, a tenant who does so purchase the lands cannot resell the lands (except to the State) at more than 50% of the open market value before the expiration of 5 years from the date of purchase. In order to purchase the said lands, the tenant must serve a written notice on the landlord in accordance with the prescribed form as set out in the Act.

WILLS AND PROBATE

Definition of a Will

A will is a written document containing the intentions and wishes of the person making it (“the testator”) as to how his or her property and assets are to be distributed and with regard to matters which he or she wishes to take effect after his or her’s death. A will is defined in the Wills and Probate Act Ch. 9:03 as including a testament codicil and all other testamentary instruments of which probate may now be granted. A codicil is a testamentary instrument ancillary to a will that adds to, varies or revokes provisions in the will.

A will usually:
(1) names an executor (and possibly substitute executors) to manage the estate;
(2) states the authority and obligations of the executor in the management and distribution of the estate; 
(3) sometimes gives funeral and/or burial instructions;
(4) nominates guardians of minor children; and 
(5) can also spell out other terms.
 

Importance of a Will

  • If a person dies without a will, there are certain rules which dictate how the money, property or possessions should be allocated. This may not be the way that the person would have wished his or her’s money and possessions to be distributed.  If someone has children, it will be necessary to make a will so that arrangements for the children can be made if either one or both parents die.

Purposes of a Will 

(1) Appointing executors or other persons whom the testator wishes to manage or assist in managing any part of his estate; (2) Making dispositions of property (real and personal) to take effect on or after his death; (3) Appointing guardians of the testator’s infant children after his death; (4) Exercising any power exercisable by him in this manner (eg. exercise of a power of appointment); and (5) Revoking or altering any previous wills. 
In this regard, Section 50 of the Wills and Probate Act declares as follows:- 
“Save as in Section 48, provided, no will or any part thereof shall be revoked otherwise than by another will executed in manner hereinbefore required or by some writing declaring an intention to revoke the same and executed in the manner in which a will is required to be executed or by the burning, tearing or otherwise destroying the same by the testator or by some person in his presence and by his direction, with the intention of revoking the same.”

Formalities for the Execution of a Will  In order for a will to have any legal effect, it must be executed in accordance with the Wills and Probate Act Ch. 9:03.
Section 42 of that Act sets out the formalities which must be complied with in order for a will to be validly executed. It essentially states that no will executed after the commencement of this Act shall be admitted to probate unless such will is in writing and executed in manner hereinafter mentioned, that is to say, it shall be made by a person of the age of twenty-one years or more (now eighteen years), and shall either be signed at the foot or end thereof by the testator or by some other person in his presence and by his direction and such signature shall be made or acknowledged by the testator in the presence of two or more competent witnesses present at the same time, and such witnesses shall attest and subscribe the will in the presence of the testator and of each other.

Generally, a witness shall be deemed competent if he or she is not under any disability. However, it is advisable that a witness should be at least 18 years old. Furthermore, a competent witness must possess the faculty of sight, as a blind man cannot be a competent witness.

Considerations Upon Making a Will  When preparing a Will the testator should consider the following:-
(1) whether he has made a will previously; (2) his family situation ; (3) whether he has dependants for whom the Court may order that reasonable provision be made out of his estate; (4) the extent of his property; and (5) who will be the executors.

(1) Whether a Will Has Been Made Previously If a will has been made previously it is necessary to determine whether the testator wishes to change it entirely or merely make amendments. The new will impliedly revokes all areas of the previous will which are the same and it is usual in drafting a will to include a clause revoking all previous wills and testamentary dispositions.

(2) The Family Situation of The Testator 
If he is married, then he needs to consider whether the provision that he intends to make for his wife and/or children is adequate or would be likely to lead to proceedings under the legislation which deals with family provisions.
If he is unmarried, a marriage would operate to revoke his intended will unless it is expressed to be made in contemplation of a marriage to a particular person and that marriage does in fact take place.

Furthermore, if the testator is in a common law relationship, he or she must appreciate that the Cohabitational Relationships Act Ch. 45:55 allows a cohabitant to apply for the granting of an adjustment order or a maintenance order. Under Section 7 of that Act, the Court shall not make such an order unless it is satisfied that the applicant lived in a cohabitational relationship with the respondent for a period of not less than five years, or the applicant has a child arising out of the cohabitational relationship, or the applicant has made substantial contributions of the kind referred to in Section 10, and that failure to make the order would result in grave injustice to the applicant.

Section 13(1) of that Act provides that “Where, before an application for an adjustment order under section 6 is determined, either party to the application dies, the application may be continued by or against the legal personal representative of the deceased party.”

(3) Extent of His Property
The testator should make a full list of his assets as well as his actual or potential liabilities. He should also note any gifts he has already made and whether they are intended to be in partial satisfaction of gifts which he desires to make in his Will.

It is not necessary to list the testator’s property in his Will where this is not necessary to identify the asset being devised. If he choses not to do so he should prepare a list of his assets which should be kept current and he should either let his executors have a copy of this list or let them know its location.

(4) Choice of Executor 
Although it is not necessary to appoint an executor it is advisable that this be done. If none is appointed it will mean that there is a period after death when there is no one in control of the testator’s estate and affairs or someone inappropriate is able to take control of the testator’s assets and estate which may lead to mismanagement or fraud. 

Probate will not be granted to more than four executors and it is therefore not advisable to appoint more than this number. 

The person(s) who are appointed executor(s) should only be person(s) whom the testator regards as trustworthy and of absolute integrity. Ideally his choice should be younger in age than the testator, in order to guard against the situation where an executor predeceases the testator.

The testator’s Attorneys or Accountant (especially where he has knowledge of the testator’s affairs) may be a useful choice made in a will.

The appointment of a Bank or a trust corporation is a question for the testator’s personal decision. These institutions tend to be unbiased as executors and to ensure that the testator’s assets are distributed quickly and in accordance with his wishes. 

How the Estate will Be Distributed Where a Will Has been Made  Once a will has been prepared and validly executed, the estate of the testator will be administered in accordance with the terms thereof, upon his or her death. The distribution of the testator’s estate, however, will be subject to any proceedings instituted by interested persons seeking to contest the terms of the will.

NOTE THAT: The persons entitled to apply for reasonable financial provision from the deceased’s estate (whether he died with or without making a Will) on the grounds that adequate provision has not been made for them are as follows:-

  1. a lawful spouse;
  2.  a cohabitant;
  3. a former spouse (if the deceased did not make reasonable provision for his/her maintenance) who has not re-married;
  4. a child of the deceased;
  5. any person (not being a child of the deceased) who in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage; and
  6. any person (not being a person included in the foregoing paragraphs of this sub-section) who immediately before the death of the deceased was being maintained, either wholly or partly, by the deceased.

How the Estate will Be Distributed Upon Intestacy When a person dies either without making a Will or where a Will is made and revoked without being replaced, he is said to have died intestate. 

When a person dies intestate his property devolves to his next of kin in accordance with the Administration of Estates Act Ch. 9:01 in the following order of priority:

1) If there is no lawful issue (children) and a spouse, to the surviving spouse;
2) If there is a lawful issue and no spouse to the lawful issue per stirpes (equally);
3) If there is lawful issue and a spouse one half thereof to the surviving spouse and the remainder to the lawful issue;
4) If there is no lawful issue nor surviving spouse nor co-habitant then to his next of kin who are the person or persons nearest in degree of relationship among those of kin. In such a case the persons being of kin include inter alia, his father, mother, grandfather, grandmother, the great grandfather or great grandmother or the lawful issue of any such persons.

If there is no spouse but a co-habitant then the co-habitant is treated as if he or she were a surviving spouse for the purpose of benefiting from the deceased’s estate.
Children born out of wedlock and adopted children are considered issue of the Deceased for the purpose of the devolution of his property on an intestacy. Judicially separated spouses are not entitled to claims or intestacy with respect to the estate of each other.

Procedure for Obtaining a Grant of Probate  When the testator dies, the executor/s must obtain a certified copy of the death certificate of the testator together with the original Will and a list of the testator’s assets and the corresponding values. Those documents must then be sent to Attorneys with instructions to prepare the application for the grant of Probate. The instructions should include the name of the attesting witness to the Will who shall swear the affidavit of due execution of the Will.

If all is in order then the application will be prepared by the Attorneys for filing. It may only be filed at the Probate Division of the Registry of the High Court after a search has been applied for by the Attorney and conducted by the Registry to determine whether it has notice of any other wills of the testator or any other application for grants of letters of administration or grants of Probate. This search usually takes anywhere from two weeks to three months to be returned. Once returned and no other wills are found or preceding application made, the application may be filed and the grant of probate obtained in at least twelve weeks once there are no queries by the Registry.

Procedure for Obtaining a Grant of Letters of Administration  Where a person dies intestate or leaving no valid will, the person entitled to the Grant of Letters of Administration as being the kin or next of kin of the deceased, must obtain a certified copy of the death certificate of the deceased. He must further obtain any documents necessary to establish his entitlement to the Grant, such as certified copies of a marriage certificate, paternity order or birth certificate and a list of the testator’s assets and the corresponding values.

Those documents must then be sent to Attorneys with instructions to prepare the application for the Grant of Letters of Administration. If all is in order then the application will be prepared by the Attorneys for filing. It may only be filed at the Probate Division of the Registry of the High Court after the search is conducted. Once returned and no other wills are found or previous applications made the application may be filed and the Grant of Letters of Administration obtained in at least 16 weeks, once there are no queries by the Registry.

POWERS OF ATTORNEY

A Power of Attorney is a deed under which one person empowers another to act on his behalf either generally or in specific circumstances.

A general Power of Attorney grants to the appointed person the power to transact almost all business or deal with almost all affairs of the grantor.

A specific Power of Attorney grants to the Attorney the power to act in specific situations for example, authorizing someone to sell a specific item.

A Power of Attorney can be revoked and automatically extinguishes upon the death/or mental in capacity of the grantor.

In order for a Power of Attorney to be valid in Trinidad and Tobago it must be prepared by an Attorney-at-Law licenced to practice in Trinidad and Tobago in deed form and registered as a deed at the Deeds’ Registry.

 
 
     
 
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