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Wednesday, June 26, 2013

Receiving land from someone who didn't own it, who got it from someone else who didn't own it... what a mess!

Individuals who believe they have found ways around the legal system usually don't see the point in going through the proper process. They generally tell themselves, and others, that their way is simpler, smarter and better, and that a lawyer is just going to complicate matters. Unfortunately, someone down the road who falls for this logic is going to pay for the lack of understanding of how things work.

I received a letter from a person who simply wants land that she has been given to be put into her name. Now she has found out that the previous two people who said they owned the land didn't actually own it because nobody bothered to find out how to actually sell a piece of land. She's paying the price in terms of legal fees and probate fees. Here is her note, and my answer:

"I wonder if you can help me, I am feeling like I am getting the run around.  My brother bought land off a gentleman 12 years ago. It’s only in my brother’s name. He gifted me the land- The entire piece.  I went to a lawyer and asked to get the land in my name. I gave the lawyer the bill of sale ( hand written) but stamped by the court, plus the survey. The gentlemen that sold my brother the land has since passed. I spoke to his only living relation and the lady that took care of his estate, she remembers the land sale. My lawyer is telling me I would need to get this gentlemen’s will probated. Is this true?  They are also telling me that the man who sold it to him, needs his will probated.  Sounds like a little much to me."
The problem here is that people are trying to sell land by way of a bill of sale. That's not a valid or legal way to buy or sell land because it doesn't actually transfer title. Land is different from anything else you own. Cars, jewelry, boats, animals - all can be bought and sold by way of bill of sale because they are personal property, but real estate is real property. Legally there is a huge difference. There should be a signed agreement for sale, followed by a transfer document that's registered at the land registry or land titles office.
In this case, the land is not in your brother's name. Apparently it's not even in the name of the person who agreed to sell it to your brother.
In order to transfer this land to you, it's going to be necessary to trace back to the last seller who actually had title to the property. That appears to be the person who sold it to the gentleman who sold it to your brother. Assuming that the proper paperwork exists to document the intention to sell to each party, you would have to go through the steps of transferring the property to each subsequent buyer.
Since the gentleman who sold to your brother, and the one who sold to him are both deceased, their executors will have to sign the transfer on their behalf. As land cannot be transferred from a deceased person without probate, you will have to get probate for both of them. You are extremely lucky that you know the woman who handled that gentleman's estate, as you won't have to go looking for her. The one before that may be a headache.
You said that your brother gifted you the land, but you didn't say whether that was a gift in his will or whether he is still alive, but if he has passed away, you will have to probate his will as well.
This is going to be a lot of work. It's going to take a lot of time and cost you money. This is what happens when people think they know "a simpler way". You are paying the price of three people in a row who couldn't be bothered to ask a lawyer a simple question about a really important asset.

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