Legal Pitfalls of Arranging a Mortgage

Posted by Nick Niesen on October 29th, 2010

Copyright 2006 Tracey Anderson

A mortgage is often the biggest commitment a person undertakes, and one should take time to consider all of the legal and financial details before diving head-first into such an agreement. Your mortgage broker, banker, or real estate agent can often be a good source of information about these details; if there is still confusion, you may even wish to engage a solicitor to review your contract, watch out for unusual or potentially harmful clauses, and explain the details to you. Always take time to read the contract, and seek out third-party advice if you do not understand it. An unscrupulous lender, broker, real estate agent or seller may attempt to pressure you into signing an agreement without reading it, or worse, yet, signing a blank form for them to fill in later. Avoid succumbing to this pressure, and always understand what you are signing before you have signed it. If you are being pressured to sign a contract immediately without a thorough reading, then the best thing to do is walk away.

Once you've found a house and arranged for the mortgage, the legal process of transferring ownership between parties, known as conveyance, is very specific and complicated. Your mortgage broker, lender, or real estate agent may be familiar with the process, and may be able to give you advice on the matter. However, the process itself must be done by a solicitor or registered conveyancer. Alternately, a homeowner can choose to do the process individually using a do-it-yourself kit. Conveyance naturally comes with a conveyance duty which must be paid to the state, although in some states, you may be able to qualify for an exemption if you are a first-time home buyer.

The property title itself, which in most cases is called a Torrens title, establishes proof of ownership. Old System titles are more complicated, and require the buyer to show clear title for every previous owner.

The issue of survivorship must also be addressed. Typically in the case of a husband and wife, the home is held in joint tenancy, so that if one spouse passes on, the other will retain the right to the property. If a home is held in tenants-in-common, however, each tenant's share of the home is separate, and in the case of death would become part of the deceased's estate. Under common law, if no other arrangement is specified, joint tenancy is assumed.

Before buying a home, legal hassles can be avoided by executing a thorough inspection. You can choose to inspect the home yourself, or hire a licensed inspector. Either way, you will be able to gain knowledge about any existing conditions of the home that you can use in your negotiations. Having knowledge of the home's condition and any flaws or defects ahead of time will put you in a better legal position, since it may be difficult to recoup any costs for undetected flaws after the transaction has already been finalized.

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Nick Niesen

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Nick Niesen
Joined: April 29th, 2015
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