Full title guarantee: Difference between revisions
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An expression | {{a|security|}}An expression [[Mediocre lawyer|financial lawyers]] toss casually about, without much of a backward glance, but which has a specific meaning under the [[Law of Property (Miscellaneous Provisions) Act 1994]]. Under section 1 of that act, there are two types of [[covenant]] a chap can give when transferring property: by “[[limited title guarantee|''limited'' title guarantee]]”, and by “[[full title guarantee|''full'' title guarantee]]”: | ||
:''(1): In an instrument effecting or purporting to effect a disposition of property<ref>defined as including a “[[thing in action]], and any interest in real or personal property”</ref> there shall be implied on the part of the person making the disposition, whether or not the disposition is for valuable [[consideration]], such of the covenants specified in sections 2 to 5 as are applicable to the disposition. <br> | |||
:''(2) Of those sections— <br> | |||
::''(a) sections 2, 3(1) and (2), 4 and 5 apply where dispositions are expressed to be made with [[full title guarantee]]; and <br> | |||
::''(b) sections 2, 3(3), 4 and 5 apply where dispositions are expressed to be made with [[limited title guarantee]]. | |||
[[Full title guarantee]] implies that: | |||
*The transferor is entitled to dispose of the property (section 2(1)(a)). | |||
*The transferor will do all it reasonably can to pass the [[title]] to the transferee, at its own cost (section 2(1)(b) and (2)). | |||
*The transferor | |||
*The transferor will do all it reasonably can to pass the title to the transferee, at its own cost (section 2(1)(b) and (2)). | |||
*There is a presumption that the whole of the property if on a registered title, is being transferred (section 2(3)). | *There is a presumption that the whole of the property if on a registered title, is being transferred (section 2(3)). | ||
*if the property is not registered, there is a presumption that the freehold interest is being transferred. | *if the property is not registered, there is a presumption that the freehold interest is being transferred. | ||
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*The transfer is free from all charges, encumbrances and adverse rights, other than those the seller could not reasonably be expected to know about (section 3(1)). | *The transfer is free from all charges, encumbrances and adverse rights, other than those the seller could not reasonably be expected to know about (section 3(1)). | ||
That latter representation makes “[[full title guarantee]]” an odd thing to say in the context of cleared [[Security|securities]], where interests are transferred subject to [[clearing system]] [[lien|liens]] (and actual legal title is held by the [[bearer security|bearer]] of a [[global security]]). It’s also not really much to do with [[guarantee]]s generally, which are a topic of no small gruelling exactitude, should that be your kind of thing. | |||
{{sa}} | |||
*[http://www.legislation.gov.uk/ukpga/1994/36/contents Law of Property (Miscellaneous Provisions) Act 1994] | *[http://www.legislation.gov.uk/ukpga/1994/36/contents Law of Property (Miscellaneous Provisions) Act 1994] | ||
*[[limited title guarantee]] | *[[limited title guarantee]] | ||
*[[title transfer]] | *[[title transfer]] | ||
{{C|Magic Words}} | |||
{{ref}} | |||
Latest revision as of 13:30, 14 August 2024
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A word about credit risk mitigation
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An expression financial lawyers toss casually about, without much of a backward glance, but which has a specific meaning under the Law of Property (Miscellaneous Provisions) Act 1994. Under section 1 of that act, there are two types of covenant a chap can give when transferring property: by “limited title guarantee”, and by “full title guarantee”:
- (1): In an instrument effecting or purporting to effect a disposition of property[1] there shall be implied on the part of the person making the disposition, whether or not the disposition is for valuable consideration, such of the covenants specified in sections 2 to 5 as are applicable to the disposition.
- (2) Of those sections—
- (a) sections 2, 3(1) and (2), 4 and 5 apply where dispositions are expressed to be made with full title guarantee; and
- (b) sections 2, 3(3), 4 and 5 apply where dispositions are expressed to be made with limited title guarantee.
- (a) sections 2, 3(1) and (2), 4 and 5 apply where dispositions are expressed to be made with full title guarantee; and
Full title guarantee implies that:
- The transferor is entitled to dispose of the property (section 2(1)(a)).
- The transferor will do all it reasonably can to pass the title to the transferee, at its own cost (section 2(1)(b) and (2)).
- There is a presumption that the whole of the property if on a registered title, is being transferred (section 2(3)).
- if the property is not registered, there is a presumption that the freehold interest is being transferred.
- Where the interest being transferred is a leasehold only, it is presumed that the the entire unexpired residue of the term of the lease is being transferred (section 2(3)) and that the lease is subsisting and the seller has complied with its terms.
- The transfer is free from all charges, encumbrances and adverse rights, other than those the seller could not reasonably be expected to know about (section 3(1)).
That latter representation makes “full title guarantee” an odd thing to say in the context of cleared securities, where interests are transferred subject to clearing system liens (and actual legal title is held by the bearer of a global security). It’s also not really much to do with guarantees generally, which are a topic of no small gruelling exactitude, should that be your kind of thing.
See also
References
- ↑ defined as including a “thing in action, and any interest in real or personal property”