Buying or selling a property can be a stressful process,
with many issues having the potential to delay completion and, in
some cases, to threaten the transaction itself. Valuations can come
in below expectations; survey reports can reveal defects requiring
costly remedial works; a transaction further down the chain can
collapse. Not until the Friday afternoon Royal Court session, when
the contract is passed, can a transacting party know that the deal
is definitively done.
The conveyancing process itself can reveal issues which can
threaten or delay a transaction.
Boundary irregularities are a commonly occurring issue.
Sometimes it may be that part of a building or enclosure has been
built on the wrong side of, or too close to, the boundary with the
neighbour's property. Or a window or other opening has been
established less than the required 2 feet 9 inches from the
boundary. Or a boundary wall has been built along the wrong
Another common issue is the lack of properly established
contractual rights, whether in relation to required rights of way
over third party property or in relation to the right to run mains
services across third party property. Such rights can only be
created by way of contract passed before the Royal Court. So, for
example, the fact that the owners of a property have been accessing
that property by means of a neighbour's roadway for many years
will not have created any legal right for such access, and the
owner of the roadway could choose to withdraw permission at any
Planning and building control non-compliance is also a
frequently encountered problem. It may be that works have been
carried out at a property without the necessary permission or that
there has been an unauthorised change of use. A relatively common
occurrence is the situation where works have been carried out with
the necessary permissions in place but without the works having had
a final inspection by a building control inspector for the purpose
of issuing a certificate of completion.
Inheritance anomalies can also come to light, casting doubt on
the vendor's ownership of the property. Or there may have been
a failure to comply with the necessary formalities when the
property was conveyed at an earlier stage.
NOT ALL IS DOOM AND GLOOM
Indeed, rare is the property that does not have some title
irregularity, however minor. But what is absolutely necessary, when
acting in a property purchase, is to be able to spot any such
issues, examine them on a prudent and yet commercially sensible
basis (not making mountains out of molehills), and advise on
appropriate remedial measures. This can in some cases involve
insisting on the vendor's lawyers approaching neighbours to
request their participation in the contract to ratify the
encroachment or other breach or to grant missing rights. In some
cases it may be appropriate to approach the authorities, for
example to arrange for a building control inspector to inspect
works which have not previously been 'signed off'. In some
cases, the best approach will be to obtain defective title
Experience and sound judgement is crucial in ensuring that title
issues do not scupper transactions and that if any delay is caused
while they are addressed, that delay is kept to a minimum. The road
to completion can at times be a rocky one but a good property
lawyer should be adept in spotting and circumventing obstacles.
Article first published in Places, Issue 132, September
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The process for obtaining planning permission for development of property in the Cayman Islands has been updated as a result of the latest revision of the Development and Planning Law and accompanying regulations (July 2015).
In principle, when the parties agree to arbitrate, they shall be
bound by that agreement. It should therefore follow that when a
party initiates arbitration proceedings, the other party - the
respondent – will avail itself of the opportunity to present
its case and participate in the proceedings.
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