memorandums and the tapu office

sen61


Joined: 28/04/2010
Posts: 9

Message Posted:
28/04/2010 20:28

hello veryone. Found your forum interesting and have similar problems to some of the posts that i have read. Decided to join so i could share information that may help.



In answer to post about registering property and paying stamp duty. Were we mis informed. i have been researching this myself and have found that it is the Tapu Office that is supposed to check for registered properties before allowing a memorandum to be registered. Unless this is done, a memorandum can take priority over a registered property.

elko2



Joined: 24/07/2007
Posts: 4400

Message Posted:
28/04/2010 20:44

Even if a sale contract is registered or even if there is a mortgage on the property nevertheless a memorandum can be registered on the same property. It is only a matter of priority. Indeed, once a contract is registered there can be no mortgage afterwards unless the buyer agrees to it.

Suppose there is a mortgage but no sale contract registered. The side who registeres a memorandum can insist that the dproperty is sold and after paying off the mortgagee the remainder can go to the side that put the memorandum on.

When someone applies to the Land Registry to put a memorandum on a property, they note down any encumbrances registered i.e. mortgages and/or sale contracts. Hence I do not agree with post no.1 above.

ismet

malsancak


Joined: 23/08/2009
Posts: 2874

Message Posted:
28/04/2010 20:46

that's confidence building, I'm still waiting for the tapu I paid for in Sept 2004!

sen61


Joined: 28/04/2010
Posts: 9

Message Posted:
28/04/2010 21:45

Thanks for your reply. In our case our developer had a personal loan and used uk assets as collateral. When we registered our property all searches according to our lawyer we free of any loans, mortgages etc. The memorandum was registered at the tapu office without our knowledge 5 months later. We were not told about the memorandum, we found out by chance. A lawyer has given the information that i posted so i apologise if it was misleading in any way.



in any case we have been told that the memorandum takes priority but that the tapu office should have checked for registered properties on the land first. According to the law as i have read. the registered owner of the land is technically the owner of properties on that land that they can be seized and sold to pay the creditor.

lippylush


Joined: 29/12/2006
Posts: 197

Message Posted:
28/04/2010 21:59

So what was the point of us registering our homes if in fact the landowner is still technically the owner of our home despite us having paid for it and having a contract of sale. Please no comments about contracts. I just want to know why we paid out good money to as we thought protect our homes to find we are now fair game for any creditors that the builder hasn't paid. Either way we end up paying twice it seems to me.

Sue

sen61


Joined: 28/04/2010
Posts: 9

Message Posted:
28/04/2010 22:07

please be aware that i do not yet have title deeds, maybe the technicality, if thats what they want to call it does not apply if you have title deeds. The law is indeed confusing for all who believe that protection is there only until something goes wrong.

Tenakoutou



Joined: 27/07/2009
Posts: 4110

Message Posted:
30/04/2010 12:15

My 'between the lines' interpretation of Elko2's Msg 2 is:



This 'loophole' in the law can surely be open to all sorts of scams by an unscrupulous builder/landowner - perhaps with collusion - e.g., and please note this is a hypothetical example:



Builder buys landowner's 'Range Rover', but doesn't pay for it, so landowner sues builder (who holds Kocan) and the court orders a memorandum for, say, £80k, against the foreigner's (or TC's) property for which the foreigner has a Contract of Sale, has paid in full and also paid the Stamp Duty at the Tapu Office.



Or, more simply, builder buys Merc from dealer and dealer sues.... etc.



The mind can only boggle at the further ramifications of such, apparently, 'legal' skulduggery!



Please, Elko2 - and I sincerely hope I am totally wrong - comment on the possibility of such a scenario..... I am sure many people would be most interested/grateful.

elko2



Joined: 24/07/2007
Posts: 4400

Message Posted:
30/04/2010 12:48

msg. 7

Yes, you are totally wrong. I think you confused my comments with those that followed.

1. Once somebody gets a court judgement for a certain sum against somebody, they can put a memorandum on whatever property they have. However any encumbrances i.e. mortgages or registration will be noted on the memorandum.



2. If you have your sales contract registered the memorandum should not stop the transfer of the property into your name. If the Land Registry refuses to carry out the transfer, you should appeal to the president of the district court. The court will consider the effect of registration and come to a conclusion without much difficulty that just like a mortgage a registration has prority over the memorandum. As simple as that.

Otherwise registration would be worthless. The builder can always get a friend to sue him and get a judgement against him.

ismet

onestop


Joined: 31/10/2009
Posts: 214

Message Posted:
30/04/2010 13:29

Ismet

Thanks for your advice, a few questions;

If one appeals to the court and secures a transfer of deeds then surely the memorandum would have no effect as it would be against the constructor ( previous holder of the deeds) and not the owner ( holder of the deeds).

Is there anything buyers can do to prevent memorandums being placed on their properties in the vunerable period between PTP processing and Deed transfer?

If the constructor owes the car dealer £80K why can the car dealer put memorandums on £4,000,000 worth of property? Is there a maximum number of memorandums that can be placed on a property? Why do creditors lawyers advise their clients to put memorandums on properties owned, awaiting deeds and not on the constructors empty, unsold properties?

Thank you for your advice Ismet, sure it will be useful to many.

elko2



Joined: 24/07/2007
Posts: 4400

Message Posted:
30/04/2010 15:04

msg. 9

It is a shame that we have a limişt of 1000 characters here which makes it impossible to copy and put comments in between. Anyway, here is my response.

1. A memorandum is useful if not all the houeses are registered or if for some reason one wants to deregister. So the vendor cannot register a deregistered property into another name.

2. In case of a mortgage, the memorandum holder can go ahead with the sales hoping that some money will be left for him after paying off the mortgage.

3. A memorandum is of nuisance value and may bring the builder to terms.

4. A memorandum is handy in the following case: if the registered buyers owe any money to the builder, the memorandum holder may make a "garneeshi order" against the buyers to force them to pay the doutstanding amounts to him.

5. I would put a memorandum on the whole site if the builder owed me a mere 1000 quid just to force him to pay me off. I did that recently just for £6000. But my real intention is to go after the builder himself personally because he is personally a guarantor of my sales contract.

6. The registered buyers should not be able to lift the memorandum until they are ready to get the title deeds into their names, however they should be able to stop the sale of the site as registered buyers.

ismet

kibrissibel


Joined: 18/02/2008
Posts: 562

Message Posted:
30/04/2010 15:05

The memorandum would be on the land, so therefore the judgement must be against the landowner. If a contract is registered prior to a memorandum being placed, then the contract registration has priority. Someone could secure a memorandum after you registered your contract but it will take second place to the registration. Some lawyers told their clients that they had registered their contracts and it later transpired that they had not. To be sure, you need to get a copy of the N34a form from the land registry to confirm firstly, if it was registered, and secondly, if there were any pre-existing mortgages or memorandums because if there were, these will be written at the bottom of the form. If there was nothing written (meaning no existing encumbrances) and then after registration a memorandum was placed then this is an error by the land registry and as Imet advises you should appeal this.



The only means at present of securing your interest is to register your contract.

kibrissibel


Joined: 18/02/2008
Posts: 562

Message Posted:
30/04/2010 15:06

You have to have a court judgement in your favour before a memorandum can be issued. Previously some lawyers advised getting an injunction on the plot to protect buyers from the landowner mortgaging or double selling, but the registration of contracts really overrides the need for an injunction.

elko2



Joined: 24/07/2007
Posts: 4400

Message Posted:
30/04/2010 15:09

Well done Sibelle, you are learning fast

ismet

sen61


Joined: 28/04/2010
Posts: 9

Message Posted:
30/04/2010 22:00

Many thanks for the information you have given. I am very grateful. Isn't it worrying though that some of our advocates do not understand the new law. Advice that i have been given is in the extreme. Erm No, i do not have 550k to pay the creditor and if i did, would i really want to become a developer, i think not. Sue the developer for breach of contract. But he has no money, why do they think we are in this situation in the first place.



I have compiled a list of questions in Turkish that a family member is taking to the Tapu office for me, despite feeling less worried after reading Ismets posts, i think their answers may make interesting reading.



I tried to call them direct yesterday, they hung up 3 times.



Lastly, Ismet. Tesekur ederim. You are doing a wonderful thing helping and advising everyone.

Tenakoutou



Joined: 27/07/2009
Posts: 4110

Message Posted:
01/05/2010 16:12

elko2/Msg 8:



Your item 6: Would this not be a very costly and lengthy procedure?



Sorry, but I fail to see where/how you have specifically answered 'onestop's' very pertinent and realistic queries - perhaps I am missing something?



Thank you in anticipation of your further helpful input, elko2.

honestie


Joined: 22/02/2009
Posts: 468

Message Posted:
01/05/2010 16:39

Like many others I have problems obtaining title deeds and now have an ongoing courtcase. I have had numerous meetings with solicitors and despite being intelligent, well I thought I was, it has taken a long time to understand the procedures and the process.



I worked in the legal profession for 30 years and as I am aware the judical system in northern cyprus is the same as the UK.



What the builers/landowners are doing is a criminal offence and I have also been told that by my solicitor here .

I was also advised the the police will not do anything about it despite it being criminal



This begs the question then : is it beacause the owner/s of the title deeds who commit these offences are turkish cypriot and therefore no criminal action is taken.



If the police arent interesed in the criminal acitivites of the landowners then who makes the decsion for the police here!



I am at the moment endeavouring to see the new president to ascertain the above. WE can only try

lippylush


Joined: 29/12/2006
Posts: 197

Message Posted:
01/05/2010 17:58

Sen61 Would be most greatful if you get some answers to this. At the current time a Creditor owed £80,000+ by our Builder has placed Memorandums on some 22 homes. It just does not seem possible that after we have all registered our properties some 2 years ago that his sort of sutuation can happen. I know my home is registered as not having any faith in Advocates over there I flew across personally and did the registration myself, as did some others. All I want to know now is, can we get our Title Deeds still and what we need to do to get them, especially if the Advocates don't know what the hell the law is or what they are doing. And as for the Builder I could just throttle him for that amount of pain and grief he is causing to not just the 22 owners but also owners on the other sites he has sold homes on, which have not been finished.

Regards Sue

sen61


Joined: 28/04/2010
Posts: 9

Message Posted:
01/05/2010 18:12

Has anyone read the minutes of the lawyers Conference on the HBPG website. Again interpretation of the law gets a mention.



We have all our documents to prove our property was registered 5 months before the memorandum. But only found out about the memorandum 8 months after it was registered. I think i will go to the Tapu office and see if the memorandum was put under or above our property.



But, again, who should inform us when a memorandum gets registered. should the creditors lawyer have a duty to inform us? is it about pecking order or who has the most money. If the creditor has a personal and ormonetary interest then he will go all the way and the lawyers are there to do everything they can to ensure he wins.



i don't know why the police are not interested, perhaps until the new law has been tested and a high court precedent is set nobody knows who to blame.





Apologies if my post duplicates, just as i was posting it the site went down. So posted again. good luck

sen61


Joined: 28/04/2010
Posts: 9

Message Posted:
01/05/2010 18:21

lippyLush. I will post everything i find out. I am planning to go next week, armed and dangerous.



I am also lucky to have turkish speaking volatile family to escort me.

honestie


Joined: 22/02/2009
Posts: 468

Message Posted:
01/05/2010 18:57

I will also keep you informed as my case and a few others involved maybe a testing case re the registration of contracts and memorandums etc and what takes presidence.



As I said in my previous message I am pushing in every direction for the matter to be treated as a criminal matter so we shall see.

elko2



Joined: 24/07/2007
Posts: 4400

Message Posted:
01/05/2010 19:22

msg. 15,

Tenakoutou,

I thought I answered fully msg 9 in msg 10. Can you please rephrase the question you wish me to answer? I will do my best to answer them.

ismet

lippylush


Joined: 29/12/2006
Posts: 197

Message Posted:
01/05/2010 19:59

Good luck sen61 wish I was coming with you. Love the idea of 'armed and dangerous'. Can you post any updates through my personal email as well please. Also anyone else who manages to progress this matter. We're coming over at the end of June and would ideally like to be able to progress this situation if possible.



Regards Sue

Tenakoutou



Joined: 27/07/2009
Posts: 4110

Message Posted:
01/05/2010 20:52

elko2/Msg 21:



You answered, probably fully, in broad terms - but I fail to see that you answered each query specifically.



If innocent buyers are beset with the types of problems that are quoted by these people on this thread, and have to resort to expensive and lengthy litigation to attempt to resolve, it appears that the current law(s) fail to protect their rightful interests.



It would seem that Hector has put the whole situation 'in a nutshell' in the other thread pertaining to this same topic!



Those, such as myself, who have been thoroughly cheated, must realise that your 'hands are tied', due to the urgent need for a thorough overhaul of the law and legal system; the current lack of, due to the endemic nepotism, which has clearly put a stranglehold on the TRNC economy, despite any EU/global recession.



Be that as it may, please be assured that I, and I am sure, all members, are extremely grateful for your explanatory input.

Tenakoutou



Joined: 27/07/2009
Posts: 4110

Message Posted:
02/05/2010 08:49

P.S. to Msg 23: 'It would seem that Hector has put the whole situation 'in a nutshell' in the other thread pertaining to this same topic!'



That thread title is: 'TRNC advocates take note!' http://www.cyprus44.com/forums/35132.asp