Dear Mrs Macaulay,
I am in need of your expert advice on the matter of buying a house without any papers. I am interested in buying a house from an old lady I know. The problem is, she doesn't have any papers for the house and land. I am hesitant about purchasing this house because I don't want any problems in the future. Can I purchase the house without any papers? What are the step-by-step measures I should take in making sure I am on the right path and I don't lose my money?
I am a young father and husband trying to make things right for my family.
This is an unfortunate situation but it is not insurmountable. I am very pleased that you are being prudent and are seeking information about how to protect yourself, your family and your resources. The purchase of real property is the most important investment the majority of the population make throughout their lives. It is therefore necessary to do it cautiously and seek professional advice and assistance, so that the transaction can be concluded according to law.
You say that the seller does not have a registered title for the land, or a common law title, or even a memorandum in writing of her ownership or possession of the land. This being the case, she cannot pass on to you a valid legal title to the land. You will note that I do not mention the house, but only speak of the land. I do so because once a permanent structure is put onto land, it becomes part of the land. It is therefore not necessary for me to keep saying “house and land”, as ”land” in the reality of a house being on it covers both.
You must first go to the National Land Agency at 231/2 Charles Street, or the Land Titles Division at 93 Harbour Street, Kingston to do a search with the address you have of the premises to find out whether the land had been registered under the Registration of Titles Act. You can phone first and ask which office you should go to do the search that I am suggesting. There you will obtain a copy of the certificate of title, if there is one. You should tell them that you are doing the search as the land has been offered for sale to you and you must be sure about the ownership of it. Such a copy of the title can provide you with a great deal of information about the land and maybe information about how the old lady came to be on it.
If there is no name on it which connects the old lady to it, then you should go to her and ask when and how she came to be on the property. Please take notes of all you do during your search and the results you obtained, even if you got no results. You will need all this, especially if the property was never registered, for background which will be needed to make an application for her to be registered as the legal proprietor, so that she can then pass a proper legal title to you.
You should also ensure that you and the seller enter into a contract that she will apply for a registered title either because she inherited it beneficially from the registered proprietor, or that she entered upon the land and stayed in the house because she could do so, even without the lawful owner's permission. In other words, that she is an adverse proprietor of the land because she has openly occupied it for at least 12 years, and is entitled to apply to be registered as the legal proprietor. She will note that during her years of occupation of the land no one questioned or objected to her possession of it, nor did she pay any monies to anyone in order to be able to occupy the premises.
You will need also, in the agreement, to make it clear that she will be obtaining the title in order to sell the premises to you and you have an option to purchase it as soon as the title is issued and at what price. You can also agree to assist her to apply for and obtain the title by assisting with the necessary costs for the process and agree that such monies would be the deposit or a part of it for the sale and purchase of the premises.
You both will, of course, need, and indeed must have the services of a good and reliable lawyer each, who works in and is experienced in real property matters to make the application. You will save some costs for her by doing the searches and enquiries which I have mentioned above, and you can just provide all that for her lawyer, so that work can be commenced immediately with her application.
The agreement which I mention above is not the sale and purchase agreement. It is to ensure that the old lady is put in the position of being able to sell the property to you and give you a proper legal title. It is also so that she does not sell to anyone else and that you have the sale price already agreed, so that if she needs monetary help to get the title, you can assist with this, as you want the property. What you provide would be accepted as your deposit or a part of it, and if it is more than 15 per cent of the agreed sale price, then the addition would be received as part payment of the balance of the purchase price. This would mean that you would have partly paid for the property while the title application, be it based on adverse possession or not, is going on.
You must, however, make sure that your lawyer has all the facts so you can be properly advised whether the old lady's application will succeed or not.
If the chances are dicey, then it would be better for you to find another property to purchase for you and your family.
I hope I have clarified things for you.
All the very best of luck to you and your family.
Margarette May Macaulay is an attorney-at-law, Supreme Court mediator, notary public, and women's and children's rights advocate. Send questions via e-mail to firstname.lastname@example.org; or write to All Woman, 40-42 1/2 Beechwood Avenue, Kingston 5. All responses are published. Mrs Macaulay cannot provide personal responses.
The contents of this article are for informational purposes only, and must not be relied upon as an alternative to legal advice from your own attorney.