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Conveyancing

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Conveyance is the name given to the transfer of title to land from one person or class of persons, to another, by deed .It means performing all necessary actions required for the transfer of title from one person to another .Conveyancing includes,

  • Examination of land titles
  • Drafting documents relating to the transfer of title
  • Working out details of a mortgage
  • Making arrangements for all necessary formalities to be met

 

In law, conveyancing is the transfer of title of property from one person to another, or the granting of an encumbrance such as a mortgage or lien .The term conveyancing may also be used in the context of the movement of bulk commodities or other products such as water, sewerage, electricity, or gas.

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A typical conveyancing transaction contains two major landmarks: the exchange of contracts (whereby equitable title passes) and completion (whereby legal title passes). Conveyancing occurs in three stages: before contract, before completion and after completion. A buyer of real property must ensure that he or she obtains a good and marketable 'title' to the land; i.e., that the seller is the owner, has the right to sell the property, and there is no factor which would impede a mortgage or re-sale.

A system of conveyancing is usually designed to ensure that the buyer secures title to the land together with all the rights that run with the land, and is notified of any restrictions in advance of purchase. In most mature jurisdictions, conveyancing is facilitated by a system of land registration .which is designed to encourage reliance on public records and assure purchasers of land that they are taking good title.

United Kingdom

In England and Wales this is usually done by a solicitor or licensed conveyancer. Either may employ or supervise an unqualified conveyancer. The domestic conveyancing market is price competitive, with a high number of firms of solicitors and conveyancing companies offering a similar service. It is possible for someone to carry out their own conveyancing.

Under English and welsh law agreements are not legally binding until contracts are exchanged. This affords both the advantage of freedom before contract, but also the disadvantage of wasted time and expense in the event the deal is not done.

The normal practice is for the buyer to negotiate an agreed price with the seller then organize a survey and have the solicitor (or conveyancer) carry out their searches and pre-contract enquiries. The seller's solicitor or conveyancer will prepare the draft contract to be approved by the buyer's solicitor. The seller's solicitor will also collect and prepare property information to be provided to the buyer's solicitors

It takes on average 10–12 weeks to complete a conveyancing transaction, but some transactions are quicker, many take longer. The timescale is determined by a host of factors - legal, personal, social and financial. During this period prior to exchange of contracts (exchange being the point at which the transaction becomes legally-binding) either party can pull out of the transaction at any time and for any reason, with no legal obligation to the other. This gives rise to a risk of gazumping and its converse, gazundering..

The position in Scotland under Scots law is that the contract is generally concluded at a much earlier stage, and the initial offer, once accepted by the seller, is legally binding. This results in a system of conveyancing where buyers get their survey done before making a bid through their solicitor to the seller's solicitor. If there is competing interest for a property, sellers will normally set a closing date for the initial offers. The contract is normally formed by letters between the solicitors on behalf of each of the seller and purchaser, called missives. Once all the terms of the contract are agreed, the missives are said to be concluded, and there is then a binding contract for the sale of the property. Normally the contract is conditional upon matters such as the sellers being able, before completion of the transaction, to prove that they have good title to the property and to exhibit clear searches from the property registers and the local authority. The fact that there is a binding contract at a relatively early stage, compared with the normal practice in England and Wales, makes the problem of gazumping a rarity. The disadvantage for the buyer is that they usually have to bear the cost of the survey for unsuccessful bids, though trials have been made of a system where the seller arranges for one survey available to all bidders. From 1 December 2008 properties for sale will have to be marketed with information, now branded as the ‘Home Report’. This is a pack of three documents: a Single Survey, an Energy Report and a Property Questionnaire. The Home Report will be made available on request to prospective buyers of the home. The date of final settlement (the "completion date" in England) is in Scotland known as the "date of entry".

 

 

 

 

 

HOME INFORMATION PACK

 

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The HIP is a compulsory requirement and must be obtained before a property is put on the market .Compulsory information includes

·         Energy performance certificate

This tells you how energy efficient your house is

·         Sale statement

This provides standard information about the property containing the address, whether it is a freehold or lease hold and whether there will be tenants in the property on completion

·         Local land charges register

This reveals any entries by the council on the property that were placed due to a legal obligation.

·         Local authorities search

This information is provided by the local authority where the property is based .It provides useful information with regards to any proposals to build roads or planning permission granted.

·         Water and drainage search

This will inform you of the water and drainage services available to the property

·         Evidence of title

These documents prove who owns the property and also provides a plan showing the exact area of land that is owned.

 

SEARCHES

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Searches are a list of standard questions raised with various parties .the answers, or search results, provide vital information regarding the property which is not obvious from inspection.

 

OVER RIDING INTREST

 Under the land registration Act 2002 certain unregistered rights or interest which may affects your property  must be disclosed to the buyer ,who is then under a duty to register such rights or interests with the land registry after completion  .these rights are rights or liabilities in favor of third parties which burden the property and you as owners ,but which are not mentioned in the title deeds /documentation .There fore ,any interest and or rights already shown on the land registry for the property need not be registered .

Failure to disclose any disclosable over riding interests of which you are aware could lead to a claim against you by any person who is adversely affected as a result.

Disclosable interests which need to be disclosed are

·         Leases or tenancies affecting property

·         Interests of any person in actual  occupation of any part of the property

·         Squatters right affecting the property

·         Right of way across the property

·         Drains ,cables ,wires ,pipes crossing the property

·         Rights of support enjoyed by the other properties

·         Rights of light enjoyed by other property

·         Rights for some one else to take things from your land such as wood, water, soil, hay, fish, crops.

·         Rights of third parties in respect of mines and minerals under the land

·         Any franchises such as a right to hold a fair

·         Any rights relating to embankments or sea or river wall

·         Manorial rights –lords right of spotting games ,mines and minerals ,holding fairs and markets

·         Any liability to pay crown rents –this would have been normally reserved to the crown on the granting of the freehold estate

·         Chancel repair liability

·         Sporting ,shooting ,grazing or fishing rights over the property

 

OCE

The office copies entries mean copies of the entries recorded at the land registry providing ownership .The OCE is a title document issued by the land registry and it provides details of the current registered owner of the property and details of the current registered owner of the property and details of charges that are on the property .The OCE ,also provides  information on the benefits (easements ) and burdens (restrictive covenants ) which the property is subject to .An office copy does not require any other form of certification by the keeper ,nor in any court proceedings ,does it require by the keeper ,nor in any court proceedings ,does it require the appearance of a member of the keepers staff ,to attest to its status

 

TRANSFER DEED

The transfer deed is commonly known as TR1 and on completion, it is lodged with the Land registry as evidence of change of ownership and this will complete the registration of the property into the buyer’s name .This document will be signed by the seller on completion .The transfer is the legal document which transfers the ownership of the property to the buyer upon completion .TR1 has to be dated on the date of completion.

 

THE SELLERS PROPERTY INFORMATION FORM (SPIF)

This is a questioner which asks standard questions about the property such as the boundaries, guarantees and disputes with neighbors. It provides information regarding disputes with the neighbors, boundary disputes, planning permissions and much more .The form is completed to the best of seller’s knowledge.

 

SELLERS LEASE HOLD INFORMATION FORM

This is commonly known as the SLIF .This give information about management company ,landlords details maintenance charges ,notices ,consents ,complaints building insurance ,decoration ,alterations ,occupation ,enfranchisement ,fire certificates ,planning permission  and other matters

 

FIXTURES AND FITTINGS FORM

This will detail any items being taken from the property or left behind .The fixtures and fittings form is completed by the seller and it details all items that the seller plans to transfer ,to you, with the property  .If items you want transferred to you are not mentioned in this form or the form specifically states that the seller plans to take those items with him on vacating the property ,you must contact the estate agent immediately .It may mean you renegotiating the price or you paying an additional amount for those items .

 

CONVEYANCE PROCESS

The conveyancing process can be divided into four stages

  • Pre contracts
  • Between exchange of contracts and completion
  • Completion
  • Post completion

 

PRE CONTRACT

This is the work carried out after an offer on the property has been accepted but before the parties are legally bound to proceed with the matter .A sellers solicitor ,having received instructions to act ,will prepare a draft contract to be approved by the buyers solicitor .This will be accompanied by evidence to legal title which will come from the deeds to the property or from documents from HM land registry .The contract package will also include the sellers property information form and a fixtures ,fittings and content forms ,both of which will have been completed by the seller .If there is a home information pack available it will also be included .upon receipt of  these documents ,the buyer s solicitor then will approve the contract or purpose amendments .He or she will prepare a draft transfer deed  which is sent to the sellers solicitor for approval together with any precontract enquires he or she may wish to raise .If the HIP is not the part of contract package searches will be put in hand and  a report will be prepared for the buyer to summarize all of the information obtained and to explain to the buyer what  rights and liabilities come with property .If a mortgage is being obtained by the buyer ,the solicitor will report to the buyer on the terms of the mortgage offer once it is received from the mortgage lender .It is at this time that all documents will be signed by the respective parties .Once all enquires have been answered ,satisfactorily search results obtained and all necessary documents signed ,exchange of contracts will take place .Due to binding nature of the exchange of contracts you should only instruct your solicitor to proceed once you are sure .

 

BETWEEN EXCHANGE OF CONTRACTS AND COMPLETION

Contract are exchanged when the sellers and buyers solicitor s speak ,normally over the telephone and using an agreed formula of words ,formally exchange contracts fixing the completion date .The solicitors acting for the respective parties then send their clients part of the contract to each other in the past ,together with the deposit .The parties are only committed from the point of exchange of contracts ,not when the contract is signed .Preparations are made by the respective parties for moving on the completion date .

When you exchange contracts, you should be given some idea of when the sale will be completed .This is usually between seven and 28 days after exchange of contracts, but could be as little as 24 hours .At some point between exchange of contracts and the completion date your solicitor will carry out any final checks and your lender will transfer the money for your mortgage to your solicitor.

 

COMPLETION

Following exchange of contracts ,the seller is obliged to buy on the date agreed for completion .On the day of completion the buyers solicitor will send to the sellers solicitor the balance of the purchase price due .This often is sent by way of a bank telegraphic transfer and the money can arrive with the seller s solicitor at any time during the day but normally will have been received by lunch time .The standard conditions of sale provide that the matter should be completed by 2.00 pm and the seller should have moved out of the property by this time .

Meter readings should be taken and the relevant phone and utilities company advised of the move, if this has not already been done .The seller can cancel their insurance on the sold property and arrange re direction of mail .Once the sellers solicitor has received the balance of the purchase monies they will release keys to the property .The buyer can collect the keys, normally from the estate agent but sometimes direct from the seller and can then move into the property.

 

POST COMPLETION

 

Following completion ,a sellers solicitor will send transfer deed together with what title deeds and documents are available to the buyers solicitor .They will also pay any estate agent their fee ,redeem the mortgage ( if any) and forward any proceeds of sale to the seller .A buyer s solicitor will pay any stamp duty land tax due ,and make the application to HM land registry to register the property in the buyers name and details of any mortgage to be secured against the property .Following completion of the application for registration ,the title deeds and documents will be sent to the buyer s mortgage lender or ,if there is no lender or the lender does not require the documents  ,to the buyer .

 

MAKING AN OFFER

 Once you find the property you like, you may decide to make an offer to the sellers estate agent .You don’t necessarily have to offer the asking price ,and the price you pay when the sale is final may be different

The price

You don’t have to offer the asking price .In fact many buyers and estate agents will expect lower offers .Its worth doing some research to find out what similar properties in the area are being sold for .It may be possible to start with an offer between five to ten percent below the asking price .The likelihood of lower offer being accepted usually depends upon .offers below the asking price are more likely to be accepted when the property market is slow .when there is a lot of demand it is much likely ,and you may have to offer a higher price .Some properties may eventually be sold for more than normally asking price .

What the offer means

The offer you make is not necessarily the price you will pay if the sale goes ahead. You can make an offer verbally or in writing ,but it should always say that it is subject to contract .This means that there is still room for negotiation about the condition of sale .This will be very important if a survey or home buyers report finds problems in the property that would be expensive to repair

How the offer is made

If the property you want is being sold through a private sale, you make your offer to the seller directly .However, most buyers find a property through an estate agent .If this is the case, you will make your offer to the estate agent .The agent should inform the seller of any offer you make .The seller will decide whether the offer is acceptable .the estate agent may come back to you with the counter offer

Holding deposits

Some estate agents ask buyers to pay a refundable holding deposit when they make an offer .Holding deposits are around $100 to $300 .The estate agent usually keeps them from the date the property is taken off the market until the sale is final .This doesn’t mean that you are legally obliged to buy the property, but probably wont be refunded if you pull out .If the sale goes ahead, it would be taken out the amount you pay.

Taking the property out of the market

If the seller accepts your offer ,you should be told that the property has been taken off the market .If it stays on the market there is a very good chance that the seller will get a better offer from someone else and you could be gazumped before the contracts are exchanged .You may be able to sign an agreement with the seller as part of the legal preparation .You may have to pay a small holding deposit to ensure the property is taken off market .However ,these arguments usually involve extra legal fees and therefore a separate deposit .

Prevent gazumping

During the negotiations, the seller could accept a better offer from another buyer before you have exchanged contracts. To avoid gazumping ,you may be able to persuade the seller to sign an agreement that the sale cant be called off as long as contracts are exchanged within a certain amount of time .There will probably be extra legal fees and deposit involved .

Before you exchange

Exchange of contracts is the stage at which a property sale becomes legally binding on both sides .From this point on there can be no changes to the conditions of sale, including the price, without the other persons agreement .Neither you nor the seller can pull out .If you do so, you will lose your deposit .If the seller pulls out, you can sue him

Signing the contract

Once the contracts are agreed, your solicitor will ask you to sign a copy .Once the copies are signed and exchanged the deal is legally binding.

 

SALES

 

Sales are the most common form of transfer of real property. A sale is nothing but a different form of contract, where a property is transferred in consideration for either money, or some other consideration.

The entire process can be looked into by dividing the same into two

Purchase process and sale process

 

PURCHASE PROCESS

  • Find a property

In this the formal request from the client .The clients can be divided into direct client, independent referrers, and bulk referrer.

  • The solicitor has to prepare a starter pack /welcome pack

The welcome pack contains the following particulars.

    1. form of authority
    2. estimate of costs
    3. client questionare
    4. client information form
    5. money laundering documents
    6. mortgage offer
  • find other solicitor

This can be done by contacting estate agent and by looking the memorandum of sale .The memorandum of sale contains the purchase prize, property details, sellers and buyers details.

  • Contact other solicitor

The attorney has to contact other side solicitor and ask for title deeds (oce) ,copy of contacts ,protocol forms ,F and F ,SPIF,SLIP ,utilities etc

  • Mortgage

Mortgage is usually arranged by the client and mortgage offer sent to solicitors by lender .The valuation report is prepared by the lender and forwarded to the client

  • Searches

The advocate has to collect the search results from local authority regarding environmental, water drainage, chancel check amenities

  • HIP

The advocate has to order for the HIP.

  • Conveyancing pack

The same is prepared by the solicitor and forward the same to the client .It contains report on searches, financial aspect of mortgage, and contract from other solicitor

  • Signing contract and mortgage prepared by the solicitor and signed by the client
  • Exchange of contracts

This is the place where the question of binding effects come .The parties cannot pull out from the contract once the completion date is agreed. Usually the completion date is fixed (within 2, 3 weeks).Deposit 10% of the purchase price .Deposit is forwarded to sellers solicitor

  • Completion stage

Mortgagor will be forwarded to the solicitor by telegraphic transaction .The balance money is paid on completion date.

  • Exchange of keys

 

 

SALE PROCESS

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The same purchase process is followed.

Conveyancing process in US

The conveyancing process in the United States varies from state to state depending on local legal requirements and historical practice. In most situations, three attorneys will be involved in the process: one each to represent the buyer, seller, and mortgage holder; frequently all three will sit around a table with the buyer and seller and literally "pass papers" to effect the transaction. (Some states do not require all parties to be present simultaneously.) In order to protect themselves from defects in the title, buyers will frequently purchase title insurance at this time, either for themselves or for their lender.

In most states, a prospective buyer's offer to purchase is made in the form of a written contract and bound with a deposit on the purchase price. The offer will set out conditions (such as appraisal, title clearance, inspection, occupancy, and financing) under which the buyer may withdraw the offer without forfeiting the deposit. Once the conditions have been met (or waived), the buyer has equitable title   and conveyancing proceeds or may be compelled by court order. There may be other last-minute conditions to closing, such as "broom clean" premises, evictions, and repairs.

 

CLASSIFICATION OF LAND IN US

 

Free hold

A free hold property is one which is owned permanently by a person .If your property is freehold then you own it forever .The free holder is responsible for any maintenance and repairs to the property .There are rarely any lengthy restrictions and usually an owner can do what they like with freehold properties, subject to planning permission and other legal requirements

 

Lease hold

A lease hold property is one where there is limited ownership for example a person can have a property for 99 years only with a lengthy document called lease which states in detail what a person can do with a property and what he cannot .

 

Common hold

Owners of common hold flats own their individual property forever, like free holders .common holders share ownership of the common areas, such as communal hall and garden, with other flats and property in their flats or property in their building or estate .They manage this ownership by becoming a member of the common hold association which runs the building

 

Unimproved land

As the name suggests, it is simply land that has no construction or other development upon it

 

Single family homes

It basically covers all those properties where upto four (and not just one as the name suggests) family can reside.

 

Apartments

Apartments are residential units where five or more families may reside .The units in apartments are usually rented out rather owned.

 

Condominiums and town houses

A condominium is like an apartment unit, but affords the resident more ownership rights .example; the resident has the right to make changes to the interiors

 

Corporative

These are usually owned by large number of people, who have a working interest in the land if it is put to farming use

 

Manufactured housing

Manufactured or kit housing is usually pre-manufactured in a factory, transported and then assembled on site .These are regarded as real property, since they are permently affixed to the ground

 

Commercial property

This type of property is not intended to use as living space but rather for commercial activities .The sets of laws governing such property are obviously very different from those for residential property

 

Industrial property

Industrial property are intended exclusively for the use by units like factories, research and production facilities and are characterized by the emission of loud notices and fumes and often, very dangerous manufacturing activities are carried on in such areas

 

Farm and rural property

These areas are reserved for agricultural use including farming, also for raising livestock.

 

Recreational property

This sort of property is usually owned by the Federal, State or city government and has facilities like parks and comping grounds, meant for use by the general public

 

Government owned land

 

CLASSIFICATION OF INTEREST IN PROPERTY

 

There are a large number of interests associated with property. Those interests can be looked into under the following heads

Fee simple estates

This is the most common form of estate ownership in the US, and confers absolute ownership rights over the property upon the owner .It not only confers the title to a parcel of land upon an owner .such estates are, it also guarantees that the land is free from any encumbrances .The owner is free to transfer the to transfer all the or part of his rights to any one of his choice

Conditional fee simple estates

If the seller places any restrictions when transferring the property, then it is called conditional simple fee estate .This ca be again classified into the following heads fee simple determinable estate –estate reverts to the granter automatically upon the violation of condition Fee simple subject to a condition subsequent-grantor has a right to sue for the title upon violation of condition.

 

Life estates

Life estates grant an interest in property to a person, but only for the duration of that persons life .After that the interests transfers to some other persons .The person who receives this kind of estate is called a life tenant or holder of a life estate .The person who receives the benefit after the life of tenants death is called remainder man.

Equity in property

This is the right of a home owner has in his property .This is calculated by deducting what the person owes on the home from the actual value of home .this arises out of two reasons

1.     the amount of the outstanding debt reduces with every installment payment made

2.     the value of home appreciate time

Tenancy and concurrent ownership rights

This relates to interest that tenants, along with others, may hold in property, and are broadly classified under the heads of concurrent ownership rights.

Tenancies in common

These rights are created  when two or more people own an interest in property ,but the nature of their relationship is unclear .In such cases although the parties may own different shares in the property ,they have a common right to own and use the property .

Joint tenancy

When one tenant dies, the interests are transferred to other tenant but not to the heirs

Tenancy by entirety

This right is reserved for married couples and in these cases, when one spouse dies, the other spouse receives full title to the property for the time of that proceedings.

Tenancy by partnership

Business partners have a right to survivorship in the case of all business property upon one tenant’s death.

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LEASES

There are various sort of leases that are commonly used in the US .some of these are

FIXED RENT LEASES

Where a certain fee is fixed, and is payable at regular intervals .These are commonly used in residential leases.

Percentage leases: vary from time to time since they are fixed as percentage of tenants business of that month.

NET LEASES

 Provide that the tenant must pay not only rent, but also all other charges associated with the property, such as electricity and water dues, and any other costs.

RENT TO OWN LEASES:

 Is some what like the hire –purchase arrangements that we are familiar with under Indian law .in these cases ,a certain percentage of the monthly rent is set aside towards down payment for that property ,thereby creating the option for the tenant to purchase the house when that sum set aside reaches a particular fixed amount .

GROUND LEASES:

 Are made in the context of vacant land, where as, timber, mineral, and oil and gas leakages provide the tenant the respective rights to harvest timber, or extract minerals or oil and gas from the leased premise.

COMMERCIAL LEASES: VARY FROM RESIDENTIAL LEASES FOR OBVIOUS REASONS.

In these cases, there will usually be special provisions such as those allowing the land lord to enter the premises and seize any business inventory that may be lying in the premises as payment towards outstanding rent .Typically, a land lord may also ask for a certain documents, such as accounting statements, before granting a lease to a commercial entity

TENANCY FOR YEARS:

Runs for a fixed time, such as a month, or a year or two . Tenancies from year to year run for a series of fixed intervals such as month to month.

A TENANCY AT WILL:

Has no fixed duration, and is usually based on informal arrangement between the land lord and tenant.

TENANCIES AT SUFFERANCE

Are different from the other tenancies we have seen so far, because all the prior instances were based on some sort of agreement between the land lord  and the tenant .In this case ,however ,there is no agreement between the land lord and the tenant ,and yet ,the tenant continues to live in the premises  .

                                          MORTGAGE

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A mortgage is the transfer of an interest in property (or in law the equivalent - a charge) to a lender as a security for a debt - usually a loan of money. While a mortgage in itself is not a debt, it is lender's security for a debt. It is a transfer of an interest in land (or the equivalent), from the owner to the mortgage lender, on the condition that this interest will be returned to the owner of the real estate when the terms of the mortgage have been satisfied or performed. In other words, the mortgage is a security for the loan that the lender makes to the borrower.

A remortgage (also known as refinancing) is the process of paying off one mortgage proceeds from a new mortgage using the same property as security. The term is mainly used commercially in the United Kingdom, though what it describes is not uniquely British. Often the purpose of switching is to secure a more favorable interest rate from a different lender.

The process of remortgaging does not usually involve moving home or taking out a second mortgage on the property; it is in effect the transfer of a mortgage from one lender to another. Homeowners may choose to remortgage for various reasons, including reducing the size of repayments, to pay off a mortgage earlier, to raise capital, or to consolidate other debts.

Homeowners often mis-use the expression remortgage when they are simply switching from one product to another with the same lender; this is not a remortgage which involves the removal of one legal charge over a property and its substitution with another in favor of a new lender.

 

A reverse mortgage (or life time mortgage) available to seniors, and is used to release the home equity in the property as one lump sum or multiple payments. The homeowner's obligation to repay the loan is deferred until the owner dies, the home is sold, or the owner leaves (e.g., into aged care). A reverse mortgage is analogous to an annuity where the principal and interest are paid with homeowner's equity.

In a conventional mortgage the homeowner makes a monthly amortized payment to the lender; after each payment the equity increases within his or her property, and typically after the end of the term (e.g., 30 years) the mortgage has been paid in full and the property is released from the lender. In a reverse mortgage, the home owner makes no payments and all interest is added to the lien on the property. If the owner receives monthly payments, or a bulk payment of the available equity percentage for their age, then the debt on the property increases each month.

If a property has increased in value after a reverse mortgage is taken out, it is possible to acquire a second (or third) reverse mortgage over the increased equity in the home. But in certain countries (including the United States), a reverse mortgage must be the only mortgage on the property

Typical papers at CONVEYANCING include: deed(s), certified checks, promissory note, and mortgage, certificate of liens, pro rata property taxes, title insurance binder, and fire insurance binder. There may also be side agreements (e.g., holdover tenants, delivery contracts, payment holdback for unacceptable repairs), seller's right of first refusal for resale.

 

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