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The Legalities

The conveyance of a property (i.e. the transfer of title) at times can be a daunting and complex procedure for the uninitiated. It is therefore helpful to have an understanding of the legal processes involved. The conveyance of a property is best carried out by a legal representative whose responsibility it is to ensure that the client receives the necessary guidance as to their rights and obligations.

After arriving at an agreement in principle, each party must contact their respective legal advisor and inform them of their intention to purchase/sell the property. Preliminary activities such as title searches and survey reports are conducted by the attorney to verify ownership of the property, to determine whether any encumbrances exist and to ensure that there are no legal impediments preventing a transfer of title. 

 

The purchaser’s attorney usually prepares an Offer Letter to the vendor’s attorney containing the proposed terms on which the property is to be purchased. Once agreement has been reached on the terms of the offer, a written contract (the “Sale Agreement”) must be prepared to give effect to the agreement. After the Sale Agreement has been finalized, it is signed and witnessed by both parties, and the deposit and further payment made by the purchaser. The amount of the deposit can vary from 5%-10% of the purchase price and is usually agreed between the parties.

Any special requirements, such as the need to obtain a Non-Belonger Land Holding License (NBLHL) or obtaining mortgage financing are addressed at this initial stage. Should the purchaser require a NBLHL, completion of the sale would be subject to obtaining the license. Prospective purchasers are best advised to discuss this with their attorney beforehand, as the processing of a NBLHL can take upwards of three months. Additionally, it is advisable that purchasers who intend to seek mortgage financing, begin to make the necessary arrangements to obtain financing to complete the transaction. 

After each party has signed off on the Sale Agreement, the executed Agreement is then forwarded to the Inland Revenue Department for the assessment and payment of Stamp Duty. Stamp Duty is assessed on the higher of the valuation amount or the purchase price. A valuation report, which would reflect the market value of the property, is therefore required. This would be submitted together with the Sale Agreement. The applicable Stamp Duty rates are four percent (4%) for Belonger purchasers and twelve percent (12%) for to Non-belongers. 

The Sale Agreement would stipulate how the outstanding balance of the purchase price is to be paid—the time frame within which this is to be done and the apportionment of the associated closing costs. The purchaser will be required to provide a Letter of Commitment from a financial institution. In cases where the purchaser has obtained a mortgage for the purchase of the property, a charge would be registered against the property in favour of the bank in order to protect the bank’s interest in the property. This would be done by the bank prior to the disbursement of the mortgage proceeds.

After payment of the relevant duties, the Sale Agreement, together with the Instrument of Transfer, is submitted to the Land Registry Department for the registration of the transfer to be effected. Proof of the purchaser’s capacity to hold the land must also be submitted. Evidence of this can take the form of a copy of the applicant’s Belonger Card or British Virgin Islands Passport or the registered Non-Belonger Land Holding License. It is a required that NBLHL be first registered with the Land Registry although it may be submitted together with the transfer documents.

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After the registration of the transfer by the Land Registry, an endorsed copy of the Transfer Instrument is returned to the Transferee as evidence of the transfer. The applicant can also obtain a certified copy of the Land Register after transfer. At this stage, the purchaser becomes the new legal owner and takes legal possession of the property. 

Buying a property is an important decision. Having an understanding of the processes and the guidance of a competent legal advisor to assist you through the process is imperative to ensure mitigation of potential legal hurdles.   

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