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Enclaved Buyer

An enclaved buyer can issue proceedings to transfer the property he purchased to his/her name under the provisions of the Immovable Property (Transfer and Mortgage) (Amendment) Law 139(I)/2015 and Immovable Property (Transfer and Mortgage) (Protection of Buyers) Regulations (Regulatory Administrative Act KPD 298/2015) of 2015.

This rather new legislation introduces provisions for the transfer of property to the property buyers who although they have fulfilled their contractual obligations under the contract with the seller, he/she is unable or neglects or fails to transfer the property in their name, because the property or part of it is subject to mortgage and / or encumbrance and / or prohibition.

The prerequisite for the implementation of the provisions of this Law is for the contract of sale to have been deposited at the competent District Lands Office by 31.12.2014. In case that the contract has not been deposited, the applicant may apply to the Court for the issuance of an order to deposit the contract in accordance with the Sale of Property (Specific Performance) Law no. 81(I)/2011.

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Procedure
In summary, the procedure for the transfer of the title deed under the provisions of the Law is the following:

  • Submission of the application to any District Lands Office.
  • Examination of the application to verify that the three basic conditions are fulfilled, namely
  • the payment of the purchase price,
  • the existence of a separate title deed of the property which is the object of the contract
  • the payment of taxes, by producing the necessary evidence / documents / certificates
  • Sending a notice of the transfer of title deed to all interested persons, giving the right within 45 days to submit an objection and / or application for the transfer of an encumbrance.
  • After the lapse of the period of 45 days, in the case of an appeal and / or transfer request, the objection and / or application are examined and a decision is issued.
  • Sending a notice of transfer of the title deed to the buyer and the seller, calling upon them to proceed with the transfer of the title within 60 days. The buyer is informed of his right to proceed with the payment of the transfer fees within the deadline of 60 days for the transfer of the title, regardless of the seller’s consent.

Basic conditions

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1. Full payment of sale price
Where the purchase price has been fully paid, the applicant is asked to produce the necessary evidence to substantiate the full payment of the purchase price, which is the following:

  • Original receipt or receipts showing the payment of the purchase price or photocopies of these. In the case of photocopies, it is possible during the examination of the application to ask also for the original receipts to be produced. All receipts must have been issued by the seller. If the seller is a company or a land development company, then the receipt should bear the company logo, the date of issue, the amount paid for the purchase of the property, the signature of company representative and the company stamp.
  • Proof of the deposit of the purchase price in a financial institution, proving that the deposit was made (in the form of cash, cheque) or the transfer of money (from the buyer’s account) to the seller’s account and / or
  • A signed certificate from the seller and / or the financial institution of the full payment of the purchase price or the full implementation of the buyer’s contractual obligations and / or
  • Affidavit of applicant, sworn before Court, where appropriate, to support the payment of the purchase price or the fulfillment of the buyer’s contractual obligations. It is clarified that the presentation of an affidavit of applicant to support to the payment of the purchase price is not deemed to be adequate evidence to substantiate the full payment of the purchase price.

Where it was declared that the purchase price was partly paid, the buyer will be called upon in a relevant notice to pay within the period of thirty (30) days, the balance of the purchase price into a special temporary account in the name of the Director of the Department Lands and Surveys.

It stressed that, if after examining all the evidence, it is not substantiated that the purchase price has been fully paid, the application will remain pending until the full payment of the purchase price. When full payment of the purchase price is documented, the Land Registry will proceed to examine the second condition noted below

2. Existence of the registered title deed
If there is no registered title for the object of the contract, the applicant has the right to apply to the Department of Lands and Surveys for the compulsory acquisition of title. Where there is a recorded title to property, the Land Registry will proceed to examine the third condition.
3. Payment of taxes
The buyer must present the certificates from the Commissioner for Taxation and every competent Tax Authority, that he has paid his dues for the following taxes up to the date of the transfer of the property in his name:

  • Immovable Property Tax
  • Immovable Property Fee
  • Sewerage Charges

It is clarified that if the payment of the above taxes is a contractual obligation of the buyer, he has to produce the relevant certificates from the competent authority, for the purpose of transferring the title in his name. If he proves that the payment of such taxes is not his contractual obligation, it shall be deemed that he has fulfilled this obligation.

Where all the three above mentioned conditions are met, a relevant notice is sent to the interested parties of the transfer of the property in the name of the buyer, giving a period of forty-five (45) days to any interested person (holders of registered encumbrances on the property which is the object of the contract) to submit an objection and / or application for the transfer of the encumbrance.

In case of an objection and / or application for the transfer of the encumbrance, such objection and / or application shall be examined and subsequently decision will be issued. Upon completion of the above, a relevant notice will be sent the buyer and the seller, calling upon them within sixty (60) days from the date of service of the notice, to proceed with the transfer of the property in the name of the buyer. Additionally, the buyer will be called upon within the above period, to pay the fees for the transfer of the property in his name, regardless of the seller’s consent.

Our Services include:

  • apply to the District court for a specific performance order enabling the buyer to submit the purchase agreement to the Land Registry
  • representation to the Land Registry for the filing of the purchase agreement
  • file a claim to the Land registry for the right of having the property transferred to the clients name
  • represent client before tax authorities for issuance of tax clearance certificates
  • issuance of title deed to the name of client

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