THOMPSON ON DRAFTING

IDENTIFY AND FULLY DESCRIBE THE COMPONENT PARTS OR DIVISIONS

IN A CONVEYANCE.

1. COMMENCEMENT: It describes the document and contains the date the

conveyance is made. It tells you when the document is to come into
operation, this means the conveyance will come into effect upon the
fulfilment of a certain condition precedent. It normally starts with “This
conveyance is made…”
• Reference to the Parties- It makes reference to the names of the
parties, their addresses and profession. No person should be
included who does not have a part to play in the conveyance. The
parties must be clearly identified.
• Date – it merely tells the date of the conveyance. This is part of the
commencement and it takes effect on the date of delivery.
2. RECITALS: It gives you the background, history and circumstances in a
conveyance. It contains any introductory matters necessary to explain the
reason for the conveyance and the narrative matters showing the
relationship of the parties to the property, the vendor’s title to the property
and his authority to transfer the same, as well as identifying any
encumbrances on the property. Recitals carry the same idea as the
preamble in a statute.

Recitals are a narration of the facts which are introduced by the word
‘’WHEREAS’’ and are of two kinds:

a) Narrative recital: it shows the vendor’s title and the relationship of

the parties to the deed.
b) Introductory recitals: it explains the purpose of the deed, what the
deed is about or intended to do, it tells you the objective.
3. TESTATUM: This introduces the operative part of the deed. This is the
part that usually transfers the legal estate in the property, it includes the
consideration given and also serves as a receipt. It starts with the words
“NOW THIS DEED WITNESSTH …”
i. Consideration: it is important to state the consideration even
though the conveyance is by deed and you need not prove
consideration when the transaction is by deed. Full disclosure of
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the purchase price becomes necessary to avoid unwanted situation,

even if it is a deed of gift it is necessary to include the amount.
ii. Receipt clause: it shows the sum of money and acknowledgment
by the vendor. The receipt set out in the deed is sufficient evidence
of payment. It is a sufficient discharge for the purchaser.
4. OPERATIVE WORDS: are the words that usually pass on a title from the
vendor to the purchaser. These words show the capacity of the vendor,
showing he has a right to convey and it can also indicate that he is selling
in other capacities other than as the “beneficial owner”. It’s either the
vendor as beneficial owner or the vendor as trustee/mortgagor/settlor etc.
When the vendor conveys as beneficial owner, there are a number of
covenants that are implied on the part of the vendor, he doesn’t have to
say further, that operative word alone imply certain covenants. Formally,
before 1882 every covenant entered into by the vendor had to be stated in
the conveyance, e.g. ‘register’ is a word peculiar to certain discuss,
similarly so in law there are certain words and expression used which are
enshrined as law in their own right, they are regarded as judicially defined
words.
5. PARCEL CLAUSE: defines the boundaries of the estate and describes the
property that it may be connected in earlier deeds. It is a description of the
physical property, plan, exceptions and reservations. It states “ALL THAT
piece and parcel of land and hereditament situate, lying and being”.
6. HABENDUM: the purpose of the habendum is to define the estate, the
amount of interest given or being transferred to the purchaser. The words
used in the habendum are words like “TO HOLD unto the purchase in fee
simple”.

It is implied that you are giving the estate unless the contrary is stated, so
if the vendor intends to give estate less than a freehold it must be stated
in the habendum, it must also be stated if subject to encumbrance.

A conveyance executed without words of limitation will pass the whole

estate of the grantor unless the restriction is stated in the habendum.

7. ACKNOWLEDGEMENT AND UNDERTAKING: it states that the

party has signed the deed.

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8. ATTESTATION: implies evidence of the truth by witnesses who establish

that the transaction took place in their presence. It reads ‘’ IN WITNESS
WHEREOF’’

IDENTIFY AND DESCRIBE THE FOUR USUAL COVENANTS THAT ARE

IMPLIED WHERE THE PHRASE ‘AS BENEFICIAL OWNER IS USED IN A
CONVEYANCE FOR VALUABLE CONSIDERATION’.

Beneficial owner is expressing that the vendor is undertaking to make at least

four covenants, and if the purchaser has any problem the vendor will be sued.

Covenants implied by the expression “Beneficial Owner” -

1. GOOD RIGHT TO CONVEY: this means that the vendor has full power
to convey the entire interest contracted to be sold (EASTWOOD V ASHTON
1915).
2. QUIET ENJOYMENT: this means the purchaser would have no
interference or disturbance from the vendor primarily and his successor
in title or anyone claiming through him or by him under the conveyance.
3. FREE FROM ENCUMBRANCES: this means there are no impediments to
title, that the property is free from all encumbrances except those the
conveyance is made subject or expressly stated.
4. FURTHER ASSURANCE: It means the vendor undertakes to do whatever
is required to make the purchasers title perfect (TAYLOR V DEBAR 1675).

IDENTIFY FOUR ISSUES THAT SURROUND THE IMPLIED COVENANT?

1. The covenant is implied only where the conveyance is executed for value,
they will not be implied where the conveyance is voluntary.
2. The covenants are qualified they are not absolute, that means the vendor
only covenants to be responsible for breaches of any interference or
defaults committed by the vendor himself or persons through whom he
derived his title, anyone claiming through him or somebody acting as
trustee.

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3. Implied covenant will be enforced by anyone whom the interest is vested,

the vendor need not transact with a third party. It can be expressly varied
in a conveyance.
4. Where a person conveys as a trustee/mortgagor/personal representative
or as an order of the Court, the only covenant that is implied is that the
vendor himself has not encumbered the property or cause any
interference, here the vendor is not claiming to sell as beneficial owner.
However, when the vendor sells as beneficial owner, ordinarily four
covenants are implied.
In other situations were a discretion is given for someone else to convey as
beneficial owner, then acting under such authority the four covenants will
be implied. Unless otherwise agreed, the parties can choose not to imply
all other covenants (BUTLER V MOUNTAIN VIEW ESTATE).

EXPLAIN WHO SHOULD BE MADE PARTIES TO A DEED?

No person should be included who does not have a part to play in the
conveyance/deed. The parties must be clearly identified as the vendor and the
purchaser to the deed.

Reference to parties is usually made in the commencement, describing both the

names of vendor and purchaser, their address in full, occupation or trade.

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EXPLAIN THE PARTS PLAYED BY A RECITAL IN A PURCHASE DEED

(CONVEYANCE)?

It is very rare to find recitals in a lease but a conveyance must have it because
the purpose of a conveyance is to convey good root of title. Recitals are necessary
because:

1. To explain the respective interest when there are several parties having
interest in the property to be conveyed.
2. They are necessary when the property is sold under a ‘Power of sale’.
Sometimes, it is not always the case that the vendor is the beneficial owner
of the property but this does not mean he claims to have a good root of
title himself, it means he is authorised under a ‘Power of sale’ to covey the
property.
3. When the estate is encumbered the recital will notify the purchaser of the
encumbrance, an estate can be validly transferred if it is encumbered but
the encumbrance must be disclosed.
4. To avoid long recitals, modern deeds are often expressed to be
supplemental to earlier deeds, meaning the terms of the earlier deeds are
recited in the new one.

THE LEGAL EFFECT OF RECITALS INCLUDE:

1. Recitals estop the parties executing the deed and anyone claiming title
through them from denying their truth. A party will be estop from denying
the truth of contents save for proof of inaccuracy, so once he makes that
statement in a recital about the antecedent it cannot be denied
2. By virtue of the Statutory Declaration Act, statements of declaration made
in recitals constitute sufficient evidence of their truth after 20 years, so a
statutory declaration made under oath may be proved to be inaccurate.
3. Recitals are used in construction of document where there is ambiguity. If
the ‘Operative parts’ are ambiguous, the recitals may be used to construe
it.

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EXPLAIN THE PURCHASERS RIGHT TO MAKE REQUISITIONS?

The interest in a conveyance is different from a lease because the purchaser is

expecting the whole package not a part of it and for that purpose the law allows
the purchaser to make ‘requisitions’. In a conveyance, the interest that is being
transferred is the fee simple estate.

A purchaser of land has a right to put written requisitions and objections to the
vendor as to any defect in the title as appears on the abstract or disclosed by
examination of the deed. The vendor must in turn give a satisfactory answer to
requisition in order to establish good root of title.

The purchaser’s right to make requisitions vary:

a. Whether there is an express condition in the contract limiting such right

or
b. Whether it is by open contract

In each case however, the type of requisition that the purchaser may be entitled
to make will depend on the character or type of vendor’s title. The vendor’s only
obligation is to show that he can convey or compel others to convey the estate
he has agreed to sell.

The purchaser cannot demand that the vendor shall show that the whole estate
is vested in himself if that were not the case, such as where the vendor is a
personal representative or the vendor’s title depends on an assent by personal
representatives.

The interest and validity which the vendor is purporting to transfer is the major
concern for requisitions. So it is a matter of probe into the title of the vendor so
as to determine good root of title.

Questions relevant in requisition:

1. Inquire into birth

2. Inquire into death
3. Linking documents of transfer
4. Any other document to prove a set of facts
5. Incidents of marriages are also necessary in certain circumstances.

WHAT SPECIAL PRECAUTIONS IF ANY SHOULD BE TAKEN BY A

PURCHASER OF FREEHOLD WHEN-

a. The vendors are personal representative

b. The vendors title depends on assent by personal representative

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In both situation, purchaser should however verify or inquire into the following
points:

• That all personal representatives have not previously assented to the

vesting of the land in another person.
• That the probate or Letters of Administration contains no such notice of
previous assent or conveyance.
• That all personal representatives who proved the will, or to whom letters
of administration where granted, are joined in the conveyance.
• That all debts and other liabilities of the dissociates estate have been
discharged.

WHAT MATTERS SHOULD AND SHOULD NOT BE SET OUT IN THE

ABSTRACT OF TITLE?

Abstract of title is a formal response the vendor gives to the purchasers

requisition.

An abstract of title should contain:

1. Document forming the root of title

2. Every subsequent document and statement of every event. E.g. births,
marriages, or deaths which form a link in the vendor’s title.
3. Legal mortgages, even though the money has been repaid and the
conveyance and receipt endorsed showing the discharge of mortgage.

An abstract of title should not contain:

1. Expired leases
2. Equitable mortgage which have been discharged, and
3. Instrument relating to interests which will be overreached by the
conveyance. E.g. trust affecting settled land.

HOW SHOULD THE FOLLOWING SET OUT IN AN ABSTARCT OF TITLE BE

PROVED?

I. A deed executed under a power of attorney – should be proved by the

production of Power of Attorney and proof that the power was not revoked
by the donor’s death or otherwise before the power was executed.
II. A will – should be proved by the production of probate or letters of
Administration with will annexed, or office copies thereof, or if the will has
not been proved, by the will itself.
III. A disentailing deed – should be proved by a certificate of enrolment.

EXPLAIN THE ILLUSTRATION GOOD ROOT OF TITLE

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 THOMPSON ON DRAFTING

The abstract of title which the vendor of land prepares for and shows to the
purchaser must commence with a good root of title. In order to establish good
root of title the purchaser must ascertain:

a. That an unbroken title has been traced from the instrument to the vendor,
and’
b. Whether the parties to the various instruments abstracted had power to
convey in the capacity in which they have contracted to sell (GREENWOOD
V WHITEHEAD).

In tracing the instrument to the vendor the purchaser may require proof of
documents and events abstracted, examined abstracted documents for any
defect in form, stamping, disclosure of equities, breaches of trust, mortgages or
charges.

The good root of title is usually evidenced by the following instruments depending
on the title of the vendor or the nature of the transaction:

• A conveyance of sale
• A legal mortgage
• A specific demise by a testator
• An assent by personal representatives
• A voluntary conveyance

An instrument as evidence of good root of title must:

i. Deal with the whole legal and equitable estate in the property;
ii. Contain nothing that appears to cast any doubt in the title; and
iii. Describe the property.

HOW COULD THE VENDOR RESERVE HIMSELF AN EASEMENT OVER

LAND?

A reservation of easement takes place when the grantor conveys or transfers by

sale or otherwise a parcel of property to another but reserves himself an
easement for some use. So the vendor expressly reserves for himself the right to
use the property for a specified purpose without occupying it.

Easement may be expressly or impliedly created by reservation in the purchase

deed itself by the vendor.

CECIL CHARLES THOMPSON