PROPERTY & ESTATES
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(1) SALE AND PURCHASE OF PROPERTY
What is the procedure for selling a property after a purchaser is found?
- Prepare an Agreement for Sale for review by the purchaser.
- Provide the agreement for sale to the purchaser and/or his attorney with a copy of the vendor’s title deed.
- Settle the agreement for sale, sign the same and receive payment of the deposit (which is usually held in escrow).</div
- Obtain the required Closing Documents (link to general information).
- Provide the closing documents to the purchaser’s Attorney-at-Law.
- Review the draft deed of conveyance (either personally or by your Attorney-at-Law).
- Meet to execute the deed of conveyance and collect the sale proceeds.
What is the procedure for purchasing a property?
- Inspect the property to ensure that it looks suitable;
- Ask the vendor to conduct a due diligence (e.g. – architectural and engineering surveys). This is not a common practice, but if not conducted and an agreement for sale entered into the purchaser must usually take the property as is;
- Get an idea of the value of the property and determine whether you will qualify for a mortgage (if one is required). If this is not done and the value is less than the purchase price or the purchaser does not qualify for a mortgage, he/she will still be required to complete the sale or lose his/her deposit and possibly be liable to the vendor for certain damages;
- Select and retain an Attorney-at-Law;
- Ask the vendor for a draft agreement for sale with his/her title deed;
- Provide the draft agreement for sale and title deed to the Attorney-at-Law for review;
- Settle the agreement for sale, sign the same and pay the deposit (usually 10% of the purchase price and paid into escrow);
- The purchaser’s Attorney-at-Law will then inform the purchaser of the documents required for completion (that can be ascertained by the vendor’s title deed) which should be sent to the vendor and/or his/her Attorney-at-Law/agent/representative;
- The purchaser’s Attorney-at-Law will search title and after completion report to him/her on the status of the same and request any additional documents which may be required for completion that were revealed by the title search (which should also be sent to the vendor and/or his/her Attorney-at-Law/agent/representative);
- The purchaser’s Attorney-at-Law will prepare the draft deed of conveyance and send it to
- The vendor or his Attorney-at-Law for review; and
- The Board of Inland Revenue with the property valuation for assessment for stamp duty;
- If there is a building on the property, insurance for the same should be obtained;
- Upon receipt of all the documents required for completion the purchaser’s Attorney-at-Law will arrange for completion of the sale and purchase of the property at which time the parties will execute the deed of conveyance, the purchaser will pay the balance of the purchase price to the vendor and the vendor will hand over any keys to any building(s) on the property;
- The Attorney-at-Law will prepare the required affidavits and the deed of conveyance is stamped, copied and registered;
- A certified copy of the deed of conveyance is requested from the Registry;
- Particulars of the registration are enclosed on the copies of the deed of conveyance and sent to the purchaser; and
- The certified copy of the deed of conveyance is sent to the purchaser (when obtained from the Registry) so that the purchaser can have the assessments for Property Tax, Water & Sewerage Rates and electricity changed into his/her name.
(2) MORTGAGES
What are the procedures for mortgaging a property?
After a prospective borrower applies and is approved for a mortgage and provides to the Bank his/her title deed and agreement for sale (if applicable) the following are the usual steps taken:
- Letter of Instructions from the Bank is sent to the Attorney-at-Law retained by the Bank to have conduct of the mortgage transaction.
- 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 including completion of our Know Your Customer form and any supporting documents.
- 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.
- In matters in which the title to the property falls under the provisions of the Real Property Act Chap. 56 No. 2 (“RPA”) an enquiry be made of the appropriate parties for location of the duplicate Certificate of Title.
- 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.
- 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.
- The Deed/Memorandum of Mortgage is prepared, settled and engrossed.
- The Attorney and/or assistant liaises with the Vendor’s or his/her Attorneys and the Mortgagee’s Attorneys regarding sale of property and clearance of any existing mortgage thereon.
- Arrangements are made to complete the matter and cheques requested. The Attorney receives and verifies the accuracy of the redemption statement from the Mortgagee where an existing mortgage is required to be cleared.
- Arrangements are made for the Borrower to attend the Attorney’s office for completion.
- The Title Clerk updates the title searches at the Registrar General’s Department and where appropriate the Companies Registry to ensure that the title remains good.
- At completion the Attorney (a) meets with the Borrower and ensures that he/she understands the provisions of the Deed/Memorandum of Mortgage answering all questions relating thereto (b) ensures that Borrower signs the Deed/Memorandum of Mortgage and (c) disburses the cheques.
- The Bank is advised by letter of the completion of the transaction.
- The affidavit is prepared and the documents are stamped, copied and registered.
- 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.
- When certified copies of the Deed is received, this is forwarded to the Bank for onward transmission to the Borrower.
What are possible causes for delay in completion of a purchase and/or mortgage transaction?
- 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 RPA.
- The location 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 a deed which is dated pre 1970 is required delays can occur. If the title is found to be defective then there could be delay in having the same rectified.
- In a property purchase and/or 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:
- there is an existing mortgage to be liquidated – this can delay the transaction, as the Attorney must ensure that the deed of release of the existing mortgage has been executed;
- 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;
- a lis pendens is discovered – this gives notice of a High Court Action that may affect the property;
- there is a missing Certificate of Title;
- the Lands and Buildings Taxes receipt is not in the name of the Vendor or the Borrower;
- there exist discrepancies between assessment numbers stated on Lands and Building Taxes receipts and WASA receipts;
- a party to the transaction resides abroad;
- 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
- the unavailability of completion documents such as Town and Country approval and Completion Certificates.
What are the completion documents usually required for the most common purchases and/or mortgages?
TYPE OF PROPERTY | COMMON LAW | RPA |
---|---|---|
Freehold |
| Same |
Leasehold (generally) | “
| Same |
Leasehold Townhouse | “
| Same |
Freehold or Leasehold with an existing mortgage | “
| Same |
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.
What is the stamp duty amount on a purchase and/or mortgage transaction? (link to stamp duty calculator)
THE FIRM
- Real Estate
- Sale/Purchase of Property
- Property Development
- Townhouse Development
- Mortgages
- Leases
- Trusts
- Wills
- Probate
- Powers of Attorney
REAL ESTATE
- 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).
SALE AND PURCHASE OF PROPERTY
MORTGAGES
- 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
- Letter of Instructions from the Bank is received;
- 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;
- 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;
- 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;
- 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;
- 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;
- The Deed/Memorandum of Mortgage is prepared, settled and engrossed;
- 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;
- 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;
- Arrangements are made for the Borrower to attend the Attorney’s office for completion;
- 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.
- 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;
- 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;
- The Bank is advised by letter of the completion of the transaction;
- The affidavit is prepared and the documents are stamped, copied and registered;
- 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.
- 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;
- 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;
- a lis pendens is discovered – this gives notice of a High Court Action that may affect the property;
- there is a missing Certificate of Title;
- the Lands and Buildings Taxes receipt is not in the name of the Vendor or the Borrower;
- there exist discrepancies between assessment numbers stated on Lands and Building Taxes receipts and WASA receipts;
- a party to the transaction resides abroad;
- 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
- the unavailability of completion documents.
LEASES
WILLS AND PROBATE
- 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.
- a lawful spouse;
- a cohabitant;
- a former spouse (if the deceased did not make reasonable provision for his/her maintenance) who has not re-married;
- a child of the deceased;
- 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
- 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.
POWERS OF ATTORNEY
TYPE OF PROPERTY
COMMON LAW
RPA
Freehold
- up to date Lands and Buildings Taxes receipts.
- up to date WASA receipts.
- WASA Clearance Certificate.
Same
Leasehold (generally)
- up to date Lands and Buildings Taxes receipts.
- up to date lease rent receipts.
- Consent of head lessor to mortgage (if required by deed of lease).
Same
Leasehold Townhouse
- up to date Lands and Buildings Taxes receipts.
- up to date lease rent receipts.
- up to date service charge/maintenance receipts.
- original share certificate evidencing ownership of a share(s) in the management company.
Same
Freehold or Leasehold
with an existing mortgage
- same as (1), (2) or (3) above (as relevant).
- deed of release/memorandum of discharge of existing mortgage executed in escrow with a settlement letter and the Attorney’s fees
Same
(3) PROPERTY DEVELOPMENT
We regularly act for developers who construct Apartments and/or Townhouses or convert existing buildings into Apartments or Townhouses or develop land into residential, commercial or industrial sites for sale.
We have acted for developers who have constructed, condominiumised and sold warehouse and other commercial units.
In each case we have advised on the structure of the development, prepared the documents for the development including company formation, agreements, deeds and/or memoranda as well as guide the developers through completion of construction and final sale.
All of the Attorneys in our Property and Estate Team can assist in matters such as this.
(4) LEASES
We have advised on, prepared and reviewed numerous leases in respect of residential, commercial and industrial properties and buildings in the private sector as well as involving the State and Government and in respect of buildings before, during and after the commencement of construction.
The Attorneys who can assist with this are Mark J. Laquis and Justin Hosein.
(5) LAND ACQUISITION
We have vast experience in advising on and assisting with Land Acquisition for both the State as well as private individuals whose land is being acquired.
The Attorneys who can assist with this are Ramona L. Mohammed and Lisa Fulchan.
(6) ESTATE PLANNING
Estate Planning is the management of an individual’s financial situation in the event of death and includes the gifting of assets, payment of debts and the appointment of guardians for minor children.
Estate Planning may include the preparation of a Will and setting up of Trusts and is an advisable exercise and process for everyone, not just the wealthy.
Things to consider
- What are your assets and liabilities?
- Do you own a business? There may be special considerations like succession planning for your business.
- Do you own property jointly with someone else? It may pass directly to them on your death without the need for probate or a grant in your estate.
- Do you have minor children that you will need to consider guardianship for?
- Do you have a spouse that you will need to provide for after your death?
- Is there someone you want to exclude?
- Have there been or will there be changes to your family situation? For example do you intend to get married in the near future, or are you expecting additions to your family like new children or grandchildren?
Wills
A Will is a legal document that directs and instructs the distribution of an individual’s assets after death.
What happens if you die without a Will?
When you die without making a Will your property is divided according to the law as follows:
- If there were no children and only a spouse, everything goes to the surviving spouse;
- If there were children and no spouse, everything goes to the children (equally);
- If there were children and a spouse one half of the estate goes to the surviving spouse and the remainder to the children in equal shares;
- If there were no children or spouse then it goes to your relatives in the order of preference prescribed by law.
Things to consider when making a Will
(a) Whether you have previously made a Will
If a Will has been made previously you may just want to make changes rather than writing an entirely new Will. This can be done by a document varying the Will called a codicil.
(b) Your Family Situation
Are you married? Do you have minor children? You may need to think about how assets are being divided to include these dependents otherwise your estate might be open to proceedings under legislation which deals with family provisions.
If you are thinking about getting married then this would automatically revoke any will you made prior to the marriage.
(c) Your Assets
Make a full list of your assets as well as your debts and potential liabilities. Also note any gifts you have already made and whether you intend this to be accounted for in the division of remainder of your assets.
It may not be necessary to list your assets in your Will. If you choose not to, make sure to leave a list of assets with your executors or let them know where they can locate it after your death.
(d) Choice of Executor(s)
Although it is not necessary to appoint an executor it is advisable. This should be someone or up to four (4) persons you trust. If none is appointed it will mean that there is a period after your death when no one is in control of your estate. This can result in mismanagement or fraud.
(7) GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION
After death, persons usually leave assets in their name, for example, a house, a car and bank accounts. If they have left a will, the executor(s) named in it will need to apply for a Grant of Probate, if they have not made a will then their next of kin will need to apply for a Grant of Letters of Administration.
How to apply
Firstly the applicant will need to determine all of the deceased’s assets with estimated values. Some property will not require a grant to be dealt with, for example real property owned by the deceased and another individual as joint tenants will automatically belong to the survivor without the need for a grant of probate or letters of administration.
It may be necessary to write to financial institutions to determine the balances of accounts held by the deceased.
Once the value of the estate exceeds $4,800.00 you will need to make the application through an Attorney at Law. You may be asked to provide certain documents ( eg. original death certificate for the deceased, marriage certificate, birth certificates) this will vary from case to case and you will be guided by the Attorney.
Once the application has been filed it typically takes a minimum of 6 months before the Grant is issued.
What does it cost?
The maximum that can be charged for obtaining a grant is governed by the Wills and Probate Act and is as follows:
prescribed by law.
Value of Estate | Scale of charges |
---|---|
Not exceeding $10,000.00 | Five per cent of such value with a minimum fee of $500.00 |
Exceeding $10,000.00 and not exceeding $250,000.00 | Five per cent on the first $10,000.00 of such value and three per cent on the excess beyond $10,000.00 |
Exceeding $250,000.00 | The same fee chargeable if the value of the Estate were $250,000.00 plus one per cent on the excess beyond $250,000.00 |
Frequently Asked Questions
What happens when someone dies without a will?
When a person dies intestate, that is to say not having made a will disposing of his or her property, an application for Letters of Administration must be made for the property to be distributed after the payment of all debts, duties and expenses, in accordance with the Administration of Estates Act, to the persons beneficially entitled.
Does a will have to be registered?
Under the probate laws in Trinidad & Tobago it is not mandatory for a will to be registered, but it can be voluntarily lodged at the Probate Registry for safekeeping.
Do you need a lawyer to make a will?
You can make your own Will, but must ensure that the Will meets the legal requirements for validity. It is recommended to have someone with legal knowledge prepare your Will.
Who can witness a will?
The execution of the will has to be witnessed by two persons who are neither beneficiary nor executor. An executor can be a beneficiary of the estate but is unable to sign as a witness to the execution of the will.
What makes a will invalid?
There must be clear intention to dispose of the property. If a testator is unduly influenced (coerced or pressured) or forced into making the will, a Court may set it aside. Similarly, a court may set aside a will if the execution was obtained by fraud or if the signature was forged.
Value of Estate
Scale of charges
Not exceeding $10,000.00
Five per cent of such value with a minimum fee of $500.00
Exceeding $10,000.00 and not exceeding $250,000.00
Five per cent on the first $10,000.00 of such value and three per cent on the excess beyond $10,000.00
Exceeding $250,000.00
The same fee chargeable if the value of the Estate were $250,000.00 plus one per cent on the excess beyond $250,000.00
(8) OTHER SERVICES
Some of the most common other services we offer are:
- Advice on and preparation of specific and general Powers of Attorney;
- Advice on and preparation of Deed Polls; and
- General conveyancing and property advice.
(9) GENERAL INFORMATION
When acquiring property in Trinidad and Tobago, whether it be land only or a combination of land and building, it is advisable to engage in a formal agreement for the sale and purchase. This agreement should accurately identify the parties, the specific property being acquired, the purchase amount, the deposit (typically 10%), the escrow arrangement for the deposit, the completion timeline (usually 90 days), and the consequences of default by either party.
Compliance with legal requirements dictates that the agreement must be in writing and signed by all parties involved. The Purchaser’s Attorney-at-Law is then tasked with managing the transaction on behalf of the buyer, following instructions for the property purchase. The Purchaser’s Attorney conducts a title investigation, reports findings to the Purchaserand lodges necessary requisitions on the title. To complete the sale, the Purchaser’s Attorney ensures the production of all essential documents, 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 (for leasehold interest), (g) release of existing mortgage, (h) discharge statement indicating any outstanding mortgage amount, (i) legal charges for the release, and (j) discharge of any judgments or encumbrances.
The Purchaser’s Attorney also drafts the Deed of Conveyance in the appropriate form and, if required, submits it to the Vendor’s Attorney for approval.
Purchase of Property by Foreign Investors
For foreign investors (Non Citizens of Trinidad and Tobago or certain Caricom Countries), the Foreign Investment Act Chap 70:07 allows the purchase of no more than One Acre of land for residential purposes and Five Acres for commercial use without a license from the Ministry of Finance, as prescribed by the Act. The purchase price must be paid in an internationally traded currency deposited in a local financial institution and disbursed by them and notice 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
Stamp Duty Tax is applicable to the purchase of property in Trinidad and Tobago and is payable by the purchaser, with rates varying based on the type of property. The Tax is assessed on the higher of the value of the property or the amount being paid for the same.