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Conveyancing a mortgaged property

As noted above we will not generally engage in transactions involving third parties.

An issue arises in terms of a mortgaged property. An order of the court to transfer a property from one party to another is addressed to, and binding on, the parties in the case (i.e. in divorce/separation the spouses). However it is not binding on third parties including for this purpose the lender (i.e. the bank/building society that provided the loan to purchase the property). It will often be the case that there will be a condition in the mortgage requiring the borrower to seek the lender’s consent to the transfer or sale of the property. It will sometimes be the case that such consent will not be given.

When acting in relation to the conveyance of a mortgaged property you should:

  1. Seek the consent of the lender to the transfer of title and mortgage
  2. If the lender is not willing to consent to the transfer of the mortgage, confirm whether they are willing to consent to the transfer of title
  3. Draft a Deed of Transfer incorporating the consent
  4. Finalise stamping and registration
  5. Provide a qualified certificate of title