common law title
DESCRIPTION
Conveyancing in JamaicaTRANSCRIPT
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Common Law Title
RequirementsValid Period of Title
Good Root of Title
Chain of Title
IntroductionIn a sale for land Prima facie
presumption exists that V is selling and is entitled to sellthe land in fee simple absolute
Therefore, the vendormust prove a good titleand markettable title tothe property sold
Vendor must SHOWa good title - state
all matters essential tothe title Vendor must MAKEa good title - to proveby proper evidence the
matter stated in the contract
Re Atkinson and Horsells Contract (1912) 1 Ch 1
Re Spollon and Long Contract (1936) CH 713 @ 718
Introduction
Valid PeriodVendor must prove titlefor a specified minimum
periodpreceeding sale -
STATUTORY PERIODIn Jamaica - 40 Years
Vendors and Purchaser Act
V must deduce a titlefor the full statutoryperiod before sale
Statutory Period is the minimum period for
deducing of titlebut title must be deducedas far back beyond
statutory periodin order to provegood root of title
Barnwell v Harris (1809) 1 Taunt 430 at 432
Bryant v Foot (1867) LR 2 QB 179-181
Title cannot start in nubibus ,must be a point in timewhere Title can properly commence - even if V has to go beyond
minimum periodRe Cox & Neves Contract [1891] 2 Ch. 109 at 118
Parties may agree thatperiod less than statutory may be
adopted but P is boundby the provisionsonce agreed
Re Bannister (1879) 12 Ch. D. 131
Valid periodGood Marketable Title
V must show that he alone or with the concurrence of some other
person can convey the legaland equitable interest in the property to P
Bell v Scott (1922) 30 C.L.R. 387
V must show a title that will allow P to recover and maintain possession
in the propertyas against all others
Williams on Real Property 24th Edition.
Where V has not shown with certaintyto have the authority to sell the propertyhe contracted to sell - DOUBTFUL TITLE
it cannotbe forced on P (can be doubt as to law, fact orconstruction on whichthe title depends)
Horton v Kurzke (1971) 1WLR 769, (1971) 2 All ER 577
Where V has no valid interest in the property or not interest to sell - BAD
TITLE
Re Scott and Alvarez Contract 1893 2 Ch 603 CA p 163
A hitch in the smooth title of the land which does not detract from V's beneficial ownershipand which can be remedied
by general rule of law - TECHNICALDEFECT
Cumberland Court (Brighton) Ltd v Taylor 1964 Ch 29 at 37
Re Stirrups Contract (1961) 1 WLR 449
Good Marketable Title
Process of CompletionThe Contract (in writing:
Purchaser to make certain inquiries and searches before signing the contract)
Delivery of Abstract Vendor to deliver to
the Purchaser the abstract of title. Starts with a good root of title
and traces the devolution to the vendor
Section 4 (g) Conveyancing Act[V not required to give Pabstract of title but must furnish P's attorney at lawon information on titleon sending draft
conveyance]
Acceptance of the title
Preparation of a deed of conveyanceof the land for
execution
s. 4(a) of the Conveyancing Act.[Vendor's attorney preparesin Jamaica and Purchaserstamps, approves and
executes form of conveyance]
Stamp the deed of conveyance with appropriate
duty. (P pays1/2 of stamp duty
and cost of preparingconveyance deed)
Payment of purchase priceand other consideration
V must also deliverall title deeds
which relate solely toproperty
Delivery of possessionby V
RecordingP records the conveyanceat his expense within
90 daysSection 4 (c) Conveyancing Act
s2 Record of Deeds, Wills and Letters Patent Act [record of deed within 3 months of sale]
If not within 90 daysthen deed standsvoid against other
bona fide purchaser forconsideration
who shall prove andrecord deed within the
time of theirrespective deeds
Precedent of a Conveyance
Commencement and date
Parties
RecitalsTestatum
Consideration Receipt Clause
Operative Words
Parcel
Habendum
Testimonium
Attestation Clause
Good Root of TitleAbstract must commence with good root of title
instrument of disposition dealing with or proving on the face of it without the aid of extrinsic evidence the
ownership of the whole legal and equitable estate in the property sold containing a description by which the property can be identified and showing nothing to cast any doubt
on the title of the disposing parties
Williams on Vendor & Purchaser 4th Ed. Pg. 124
Elements of good root
Instrument of disposition
Proving ownership of the whole legal and equitable estateon the face of it
description by which the property can be identified
with nothing to cast any doubt
Examples - in order of strengthLegal Mortgage (****)
Conveyance on a sale (***)
Specific Devise in a will (**)
Specific Devise in will - P entitled to particulars showingdevise, grant of probateand deed of assent
Possessory Title - e.g. grantedvia Statute of Limitations is a good title. Vendor with12 years possession
to also show state of titleat time possession started
Atkinson & Horsells Contract
Pre-root of title - P can require
document or abstractor copy of documentprior to root of titlein certain cases
Where abstracted documentis executed under Power of
AttorneyWhere property is subjectto a document creating or disposing an intereststill subsisting e.g.
Restrictive Covenant
Where property is limited or subject to trust
Chain of TitleV must show chain links in the
title from root to himself
Links are every document or event effecting a
disposition or devolution of any legal or equitable
estate or interestin the property sold during the
period of root
Chain of Title
Abstract of Title - summary of documents and eventsby which dispositions of theproperty have been madeduring the period for whichtitle has to be shown
Conveyances, Assents to Devise
Mortgages/Certificates of Compliance (Note - the process
by which mortgage of common law title created.)
Release of a Mortgage
Leases (not expired)
Grants of Probates or Administration
Abstract of Title
-Deed of Conveyance Joe Brown to Jane Doe dated 1940.
-Deed of Mortgage Jane Doe to Money Bank Ltd (1965)
-Deed of Release Money Bank Ltd to Jane Doe (1970).-Recital of Jane Does death
-Probate of Jane Does estate Will being granted to Peter Thomas and Paul Thomas
-Assent by Peter Thomas and Paul Thomas in favour of the Vendor
Example
Some Proof of TitleDeath - Orginal Death Certificate,
or Court Order of Death(e.g Death of Joint Tenant,Death of Life Tenant)
Marrage - Original marriage certificate
Change of Name - Deed Poll,Alias - Statutory Declaration
Recitals in 20 year old deedA recital in a Deed 20 years old should
be taken as conclusive evidence of the facts stated.(e.g Recital as to death
Recital as to payment of estate and succession duty
Companies - articles of incorporation)
Intestacy - Grant of Letters of Administration(followed by deed of assent)
Testacy - Grant of Probate(followed by Deed of assent)
Deeds - Abstracts from originals lodged in the Island Records Office
see Vendors and Purchasers Act
Some proof of title
Purchaser's due diligenceStudy the deeds and documents
provided by V in detail
Search Registrar General to verify the title and other
offices to verify other documents
Make requisitions to V re: gaps in the title
On satisifiable answers torequisitions and in theabsence of defectsand encumbrancesoutside that provided for in the title - accept
the title
ProcessExample
THIS CONVEYANCE is made the 1st day of October, 2011
BETWEEN PETER PAN of No. 1 Fairy Lane, Sweet Dreams in the parish of KINGSTON
(hereinafter called the Vendor) of the ONE PART and
the SNOW WHITE of No 2 Dream Land, Kingston 10 in the parish of Saint Andrew
(hereinafter called the Purchaser) of the OTHER PART
The Vendor is the estate owner in respect of the fee simple of
the property hereby assured for his own use and benefit absolutely
free from incumbrances
The Vendor has agreed with the purchaser to sell her the
property free from incumbrances for the price of $1,000,000.00
NOW THIS CONVEYANCE WITNESSETH that in consideration
of the sum of One Million Dollars ($1,000,000.00) now paid
by the purchaser to the vendor (the receipt whereof the vendor hereby
acknowledges) the vendor as Beneficial Owner HEREBY CONVEYS
ALL THAT piece of parcel of land known as No 77 Fairy Land in the parish of Saint
Andrew which premises are more particularly described in Survey Plan
No 12345 on the plan annexed hereto or ALL THAT ALL THAT piece or parcel of
land situate in the Town of Falmouth in the parish of Trelawny part of Lot numbered 6
in the plan of the said Town containing by admeasurement along the North Western boundary Seventy three feet along the South Western boundary Sixty one feet along the North Eastern boundary fifty
five feet bounding North Westerly on Falmouth Street North Easterly
on a land now called Upper Harbour Street South Easterly
on the lands next hereinafter described and South Westerly on lands now of Ms. Olivia Emanuel
and of Elizabeth McGurie
TO HOLD the same unto the Purchaser in fee simple
IN WITNESS WHEREOF the parties to these presents have hereunto set their hands
and seals the day and year first above written
Signed, Sealed and )Delivered by the Vendor ) PETER PAN (Seal)
In the presence of )
_________________
Justice of the Peace for the parish of
Attorney-at-law
e.g
EntitiesPerson may convey land to or vest land in himself
(e.g. a PR who assents)
Corporations - to bedeterimined by looking atarticles if incorporated byCompanies Act; relevant statute if statutory company
The Crown or StateAll crown land is usually
vested in the commissionerof lands who land is conveyed
to and from;
Crown Property (Vesting) Act
Mentally ill persons- Committee of Mentally Ill Persons
Mental Health Act
Tenants for lifeSettled Land Act