Separate Title which never passed and still in name of original owner

[2jzzzz]

Hi, have been reading through the forums and have been a wealth of knowledge. I am brand new at this and have already had more nightmares than most and don't own anything yet.

First we missed out on a house we fell in love with and it sold for $80k over reserve in Altona North.

Next, our offer was accepted on a house in Laverton. But again, we had to exit due to poor workmanship which had no council permits on a huge portion of the house. Big legal battle, but we got out and lost no money. But disheartened.

Finally, had offer accepted on a house in Altona Meadows. Much different to the other two and was smooth sailing. Settlement was Sept and we have just been counting down.

BIt, this morning I got a call from our conveyancer and they had just received a call fuom the local council.... Apparently, back in the 80s there was a lane at the back of the property. Council decided to close it off and tried to sell land to house either side of it. Both owners back then refused to pay, so each house backing on was gifted a 1.5m plot on separate title.

Now, here is my problem. Each time the address was sold, that second title was never included in contracts and name never changed. So now council says that gifted parcel of land still is in name of person from 30 years ago. Our section 32 includes the dimensions of whole plot, but only has one title number. The vendors conveyancer says it isn't his problem as we are unconditional. My guys says it is their responsibility before settlement...

Anyone been through this, any tips? One more spanner is that we think it is still in name of a business and we aren't sure if it exists anymore.

Sam

 

[Scott No Mates]

Have your solicitor advise you what you can do in this instance.

Oh! you have a conveyancer & they are out of their depth. Great saving. (sorry I do get a bit cynical occasionally). When you are a novice in an area, it is generally best to appoint a knowledgeable solicitor to advise rather than a conveyancer - at this stage it is the biggest purchase that you have made and you lack experience in the field, so spending a few dollars on legal advice is money well spent.

If the company no longer exists (company search on ASIC website/and private providers), then the assets should have been distributed to the shareholders upon sale................ so it may be possible that the title has been passed on but not transferred correctly.

I would suggest getting the vendor to rectify the title before settlement. Then get the titles consolidated so it doesn't happen again.

 

[2jzzzz]

Thank you for the reply. I had a quick chat to my conveyancor and he is currently dealing with two other similar situations, but he hasn't done too many before. We have employed a large, well known group, so he is seeking further clarification from specialist solicitors and sent a broad fax of demands to vendor.

Still have no idea why the council has initiated contact at this moment after 30 years....

Apparently this situation happens quite a bit, does anyone know the correct term?

 

[wylie]

Apparently this situation happens quite a bit, does anyone know the correct term?

I'm too much of lady to type the correct term here, but it is two words, starts with the sixth letter of the alphabet and ends with "up"

Seriously, I'm not sure that... "We have employed a large, well known group, so he is seeking further clarification from specialist solicitors and sent a broad fax of demands to vendor" is enough. I'd be engaging a solicitor myself to take over from this conveyancer before it is too late and you are forced (?) to settle on something that is not right.

 

[jrc]

Our section 32 includes the dimensions of whole plot, but only has one title

So are you saying the section 32 for example says your land is 41.5 metres deep but 40 metres is on the title you have contracted to buy and the other 1.5m is on a separate title. Or are you just assuming the dimensions in the Section 32 include the separate title?

Unless the section 32 specifically includes the 1.5m why is your vendor liable to do anything - he has agreed to sell you a particular lot described in the contract and it looks like he can still do that.

Who has been paying the rates on this 1.5m? Why would a council be able to create a landlocked title? In NSW it would normally be consolidated into the adjoining title? First step should be to get title searches of both lots and see what has happened, second step measure the physical land you think you are buying, third step who cares about it, if you're anxious to legitimise it you can probably do an adverse possession claim over this 1.5m after you settle.

 

[Terry_w]

Sounds messy and complicated. Dangerous using a conveyancer

 

[Paul@PFI]

Conveyancer v Solicitor

Conveyancers are cheaper for a reason. Cause they arent qualified or experienced to do more than the process of conveyance. Its a bit like asking your GP to perform a specialist op.

Conveyance of title is at the end of the day a legal issue. Its when it all falls apart that you need someone who will seemlessly act and handle the problem. Such as a failure to settle. Or a contract debacle. Or a dispute over inclusions. Or a title problem like this.

A mate of mine...his conveyancer handles a subdivision and sale of his backyard. But sold his title instead of his subdivided lot. He was living in the other guys home for 5 years until neigbour tried to sell and found hw owner the wrong property !!...Needless to say it was messy and involved negligence. His lawyer took action against his previous conveyancer. Suburban western sydney around 8 years back...$30,000 in costs paid by PI cover. A conveyancer cant do that !!

I wondering if Council have realised they havent been collecting rates !! You might not want this patch of land

 

[tep846]

You are facing exactly the same issues as my boyfriend. He is buying at Altona Meadows. The extra piece of land belongs to the property he is buying, and the current owner is paying council rate including that area (that extra piece of land belongs to the previous vendor, not this current one). Unfortunately the neighbour at the back is using that area, built a shed on it. Based on the current fence position, the land is theirs, even though it is not on their title. His solicitor told him that even though he can get the title transferred to his name, the neighbour can still claim it back as they have been using it for years.

 

[2jzzzz]

I'm still to hear back but have been told no news is good news in this situation.

Basically, the vendor was told in writing that it is his responsibility to fix this before settlement. Solicitors advise me that I am in the right, but if the vendor or current title holder don't play ball, it could delay and cost a touch extra in legal fees for me. Worst case is that I can do the adverse possession thing, but if it costs heaps and jot in my interest, I'll shift the fence forward 1.5m.

If I have not heard anything by 2pm tomorrow, I'm going to force something to happen as I need to give 28 days notice to my landlord and settlement is 2 Sept.