In real estate, the transfer of title from one person to another person refers to the transfer of ownership of the property. The selling of real estate involves the transfer of its title.
The concept of marketability of title is with reference to the ownership of the real estate property. A marketable title is a title which can be transferred to the new owner without any problems on it, i.e., there is no claim on the property by any other person. A marketable title is a guarantee made by the seller that the property has does not possess any risk which would negatively affect the buyer. The marketability of the title has to be addressed when there is a contract of sale between the seller and the buyer of the property.
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What is the difference between ‘clear’ and ‘marketable’?
A ‘clear’ title means that the property is free from any claim or legal right from third parties who could question the ownership of the property.
A ‘marketable’ title on the other hand means that the owner of the property has the right to sell the property. It signifies that the property is free from encumbrances and can be sold to potential buyers without any difficulty.
What can you do to make your title marketable?
A marketable title in real estate is a title that is free from all defects. Such a title would be accepted by the buyer almost immediately since there is no existence of any charge or any dues on the property. It does not give rise to any litigation and does not interfere with the buyer’s enjoyment of the property, and the buyer will have no problem in further selling the property.
The following things can be done in order to make ensure marketable title to your property–
- Checking the legal capacity of the seller, to ensure that the person selling the property is above 18 years of age and does not suffer from any mental disorders which would prevent the title from being marketable.
- Ensuring that taxes on the property are paid. It is important that all the taxes that are required to be paid by the seller are fully paid up. There should not be a situation where after the property has been sold, the new owner of the property has to pay the pending taxes on the property.
- Registration of the property with the authorities, to guarantee the legal title of the property. If any dispute arises at a later stage with respect to the ownership of the property, it can be easily settled. Registration of the property also decreases the occurrence of fraud.
The following documents can be obtained in order to make a title marketable –
- Occupation certificate (a certificate issued by the local authorities, which certifies that the building is fit for occupation and has been constructed as per the required plan)
- Letter of Intent (a document which proves the commitment of one party to enter into business with another party)
- Completion certificate (a document which is awarded after the inspection of the real estate property, stating that the property has been constructed according to the approved plan)
- Sale deed (a document which transfers the rights, title and ownership of a property by a seller to the buyer at a certain price)
- Power of Attorney (a document which gives a person the authority to act on behalf of another person in specified matters)
- Documents relating to allotment
- Possession Certificate (a document which states that the property has been possessed without any illegal means)
- Encumbrance Certificate (a document that states that the property is free from any legal or monetary liability such as a mortgage or a loan)
- Land records and mutation
- Khata extract and Certificate
How to find out if the title of the property is good?
A good title is the ownership of property which is free of claims and can, therefore, be sold, transferred, or be used as security to obtain a loan or mortgage on the property. The following can be done to check whether the title of the property is good;
- Check the title documents to ensure that the owner has proper ownership over the property. The documents should be studied properly as any lapse may lead to a defective title.
- Inspecting the original title deeds.
- Presence of an encumbrance certificate, which ensures that the property is free from any legal or monetary liabilities such as a mortgage or uncleared loans.
- Presence of a power of attorney; a written authorization to act on behalf of another person in the business matter. It is important to verify that the person has a valid power of attorney from the original owner of the property to prevent the occurrence of fraudulent transactions.
- Taking search of the land records and the records of the sub-registrar, to ensure that there exists a record of the property and that the person selling the property is the true owner of the property.
- Payment of all the necessary dues and taxes applicable on the property, so that the new owner of the property does not have to pay the dues or taxes that the previous owner of the property had to pay.
- Searching the records of the society where the property is in a society
- Issuing a public notice in the newspapers calling for claims in respect of the property; this is done to ensure that there is no claim on the property by any other interested parties.
How to check if my property has a clear and marketable title?
A clear and marketable title is when the chain of ownership to the property is free from defects. This means that the property can be marketed for sale without any additional effort by the seller or buyer. If all the required documents are presented to the buyer by the seller and if there is no charge or due present on the property, the title is said to be clear and marketable.
It can be seen that the title of a property is the most important aspect when it comes to selling or buying a property. If there is a fault in the title of the property, new owners are hesitant in obtaining such property. A buyer has to take great care in ensuring that the property has a marketable title before submitting an offer for the purchase of the property. It is important to conduct due diligence with regard to the property to verify the title. The property has to have a good and marketable title since the new owners of the property do not expect any one else to have claims on the property owned by them.