Nick Yee is advised that there are several steps which he needs to undertake to

successfully complete the sale of the five acres of land.

GRANT OF PROBATE
Nick’s father died with a last Will and Testament, leaving Nick as the sole
executor and beneficiary of the estate. Nick is therefore advised that the first
thing he should do is to obtain the Grant of Probate for his father’s estate.
This step is governed by Rule 19 Non-Contentious U.K Probate Rules 1954
which states that “Where the deceased died on or after 1st January 1926, the
person entitled to a Grant of Probate…with will annexed shall be….(i) The
Executor...” This rule gives Nick the authority to apply for the Grant of Probate
for his father’s estate. This document is important for him to obtain the
authority to act in his capacity as Executor of his father’s estate. It will also
allow him to exercise his powers as Legal Personal Representative to sell the
property.
Furthermore, as Executor, Nick must also be cognizant of section 28
Succession Act Cap 249 which advises that Nick needs to pay all funeral,
testamentary expenses, debts and liabilities from his father’s assets.

TRANSMISSION
Secondly, Nick is advised to undergo the process of Transmission.
Transmission means ‘the passing of land, a lease or charge from one person to
another by operation of law on death…’ It also refers to how a deceased
proprietor’s registered land is vested or passed. Therefore, transmission is the
process by which Nick will be able to pass the ownership of the property to the
purchasers Nate and Georgina. Transmission is governed under section
118(2) Land Registration Act Cap 229 which states that “The Registrar may,
on application to him in the prescribed form and on submission of a grant of
probate of a Will….(a) register by transmission as proprietor in place of the
deceased; or (b) register a transfer by the personal representative…”. Therefore,

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Nick must make an application to the Registrar. This process, places Nick as
proprietor of the estate; and as the sole beneficiary of his father’s estate, he has
the power to sell the property. The transmission process permits the sale of
the property to be undergone by the new registered proprietor. This step
reinforces the importance of Nick first obtaining the Grant of Probate as he is
required to give the Registrar certified copies of such.
Nick is further advised that registration as proprietor makes him subject to any
liabilities, leases or charges which his father obtained as recognized in section
26 (1) (a) Land Registration Act Cap 229.

AGREEMENT FOR SALE

The third step Nick should take is to draft the Agreement for Sale. This
document though not a registrable document, is a valid and enforceable
contract for the sale of the land and is required to initiate a sale of land. This
is in compliance with Barbados Property Act Cap 236 section 47(1) which
maintains that “no action may be brought upon any contract for the sale or other
disposition of land or any interest in land, unless the agreement upon which
such action is brought or some memorandum or note thereof, is in writing and
signed by the party to be charged or by some other person thereunder by him
lawfully authorized.” No land may be sold without proof in writing by both
parties. The Agreement for sale should therefore have the signature of the
party to be charged according to section 41(1) Land Registration Act.
Additionally, the Agreement for sale should contain a description of the parties.
Sir G. Jessel M.R in Potter v Duffield (1874) L.R 18 Eq. 1 advised that “an
agreement for the sale of real estate must contain either the names of the
contracting parties or such a description of them that there cannot be any
dispute as to their identity.” It should contain a description of the property
Timmins v Moreland Street Pty Co. Ltd (1958) Ch. 110; terms of the
contract Hawkins v Price (1947) Ch. 645; the full purchase price Smith v
Jones (1954)1 WLR 1099; and the usual 10% deposit of the purchase price

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Workers Trust v Dojap Ltd (1993). The completion date should also be stated
in the agreement. The agreement for sale will also detail the rights and
obligations of both parties. It is at this point that the purchasers would pay
the deposit of $500,000 to the stakeholder and that binds the agreement.
(CAUTION) The purchasers may be protected by filing a caution.

JUDGMENT
The facts revealed that Scorcha Peppers Limited obtained a judgment against
his father on January 23, 2020. A judgment is defined as ‘an order of the
court for a liquidated sum of money affecting title to the land.’ Nick is advised
that a judgment obtained against a judgment debtor (his father) is of no effect
with respect to registered land unless it is registered as a charge under the
Land Registration Act (section 2(3) Registration of Judgments Act CAP
210). In Barbados, a registered judgment is valid for five years (section 3
Registration of Judgments Act). The case CLR v Charles Anthony Stoute
Civil Appeal No. 1 of 2007 explained that an automatic charge is not created
on the judgment, but rather the judgment creditor (Scorcha Peppers Limited)
must take out a charging order against the lands for it to affect the sale of the
property. Where there is a charge, it can become an encumbrance and affect
the title to the land and Nick’s ability to sell the property; to remedy this he
would have to pay off the judgment. Nick is therefore advised that he should
conduct a search for the full period of time that the judgment is valid for to
ascertain whether or not a charging order was registered on the property. If
there is no such charging order registered, Nick would be able to sell the
property free from encumbrance.

DISCHARGE OF MORTGAGE
The facts reveal that there is $750,000 owing on the mortgage for the property.
An existing mortgage will create a charge on the property; therefore Nick will
need to discharge of it in order to sell. The facts revealed that Nick intends to
use the proceeds of sale to settle the mortgage. This is one of his options to

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discharge of the mortgage. The facts further reveal that Nate and Georgina
intend to borrow the balance of the purchase price from Bountiful Savings
Solutions Bank. If Nick decides to discharge the mortgage from the proceeds of
sale, the purchasers’ bank would settle the subsisting mortgage with the
balance of the purchase price that they owe so that Nick would be able to
discharge of the charge of the mortgage at Loanlee Sharque Credit Union
Limited. Nick is advised that he has the other option to discharge the mortgage
from his own pocket. If this is done, Nick’s bank would have to prepare a
settlement letter. However, considering that seven hundred and fifty thousand
dollars ($750,000) is a substantial amount of money, he is advised to discharge
the mortgage from the proceeds of sale.
Despite which method is used, the Memorandum of Discharge must be filed
before the charge on the property can be cancelled. This document is prepared
by the Attorneys-at-law from Loanlee Sharque Credit Union Limited.

DRAFT MEMORANDUM OF TRANSFER

The memorandum of transfer will transfer the interest in the property and pass
title from Nick to Nate and Georgina. The transfer is done by preparing Form
L.R 20 which Nick signs as Legal Personal Representative and transferor and
Nate and Georgina as transferee. The balance of the purchase money is paid
and both parties must sign.

COMPLETION
At this point, Nick is registered as a Legal Personal Representative, a registered
proprietor and is also a beneficiary; and any issues regarding the judgment and
mortgage have been settled. Nick therefore has the authority to sell the
property.
In Barbados the completion of the transaction includes a completion meeting
in either one of the attorney’s offices. At this completion meeting, no clients
are present. All of the documents would have been signed and collected by the

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respective attorney. At this meeting, the attorneys exchange documents and
hand over the cheque for and on behalf of the client. It is also at this meeting,
that the attorneys collect their fees and disbursements. The attorneys then
register and record the documents.
After the recording and registration process, then the purchasers can collect
their Certificate of title from the Registry.

CONCLUSION
Nick is ultimately advised that the entire conveyancing process towards
completion, takes ninety days. Further, that he should consider selling the
entire five acres of land including the peppers for five million dollars. However
if he desires, he can sub-divide the property to keep the part with the peppers
but this would impact on the price of the property.

(1477 words).

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 COMPLETION DOCUMENTS

Grant of Probate – Obtaining the grant of probate and attaching the Will are
definitely important documents. These documents prove that Nick is indeed
the beneficiary to his father’s property, that his father has died and as such
has the authority to sell the property.

Two pieces of Identification – This requirement is governed by the Money

Laundering and Financing of Terriorism (Prevention and Control) Act
2011.  This Act details that the true identity of the customer or client must be
obtained by means of reliable documents, data or information.’ Five million
dollars is an enormous amount of money. If there is any illegal activity, Nick
should be able to identify to the relevant authorities clearly who the purchasers
are. This includes obtaining the correct spelling of their names.

Source of Funds - By obtaining the source of funds especially when handling

large sums of money, Nick is attempting to protect himself from engaging in
any money laundering investigations. Sometimes persons use money obtained
from illegitimate means to purchase goods and services. A legitimate source of
funds from where the purchasers intend to obtain the money for the property is
crucial

Proof of Residence in Barbados – Nick would be encouraged to get proof of

address from the purchasers as it is important that they are resident in
Barbados. Documents such as a utility bill in the name of the purchaser
would be helpful.

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Certificate of Title – This is evidence and proof that his father owned the five
acres of land.

The Agreement for Sale – this is a formal document which binds the parties
to the contract and to the sale of the land. It details the rights and obligations
of both parties and outlines the terms and conditions of the sale and that they
are expected to perform their obligations accordingly. Both parties must sign
the agreement for sale.

Settlement Letter -

Receipt of the Attorney fees – for the preparation and disbursement of the
Memorandum of Transfer.

Receipt of the Deposit – This is important as the deposit go towards the

purchase price and that the purchasers are interested in purchasing the
property. In Barbados, the practice is that the deposit of 10% is paid to a
stakeholder as this will solidify their interest in acquiring the land.