Property Law 1 -Deeds

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Deed

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Doc giving evidence to facts agreed to between persons, on good, quality paper, and is signed, sealed and delivered.

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Types of deeds

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Indentures: binds two or more persons. E.g. a deed of legal mortgage btw Mortgagor and Mortgagee

Deed Poll: granted by one person. E.g. Power of Attorney under seal.

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Deed and Contract of sale

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Deed is binding on maker, then without fulfillment of parts, so long it has been delivered.

Contract of sale not binding until parties have exchanged their parts.

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Where Deeds Are Required

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1. Make grant (conveyance) of any estate or interest in land e.g. power of attorney

2. Create obligation or rights relating to property e.g. covenants

3. Confirm some act where interest/right in property has already passed e.g. confirmatory deed

4. Contract/Covenant without consideration is being created. Note: court will not enforce

5. A power conferring authority on another must be made by deed e.g. power of attorney

6. A lease for a term exceeding 3 years.

7. Statute specifically requiring conveyance be made by deed e.g appointment of new trustees, transfer of shares s 77(1) PCL 1959

8. Deed needing rectification, will be rectified by another deed (deed of rectification)

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Where Deeds Are not Required

S. 77(2) PCL 1959

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1. Assents: aka vesting assents - instrument a personal rep of deceased person conveys property to entitled beneficiary upon grant of probate to the personal reps.

2. Surrenders by operation of law: lessee taking new lease that's incompatible with old lease.

3. A lease/tenancy less than three years

4. Statutory receipts discharging a charge e.g. one endorsed on a mortgage

5. Vesting orders of court to create or transfer a legal estate in land to a person.

6. Disclaimers e.g. trustee in bankruptcy disclaiming some property, s. 56 Bankruptcy Act; beneficiary refusing gift under a Will without doing so in writing; by husband of wife's debt; by employer of former employee's acts on contract.

7. Transactions covered by Rule in Walsh v Lonsdale (an instrument that is void as a conveyance cos it's not a deed may still operate in equity as an agreement for conveyance.)

8. Declaration of trust by a person able to declare such in writing by him or his will

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Factors that make a Deed Valid

1. Signature

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Writing by hand, a print, a stamp, engraved etc. S. 83(4) EA 2011 a statement in a doc shall not be deemed made unless the doc was written, made, produced or signed or initialed by person making the statement. S.97(1) PCL

Illiterates- Itauma v Akpe-Ime, s.8 Illiterate Protection Law of Cross Rivers States. Akingbade v Olayinka

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2. Sealing

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Where party is a company, it's seal is to be affixed to the deed. S.98(1) PCL seal is affixed in presence of secretary and/or a member of Board

S.159 EA where doc is...duly attested and signed, it's presumed sealed and delivered. (this presumption does not apply to Companies under Part C, CAMA) S.163 EA, Containers Nigeria Ltd v. Niglasco Nig Ltd

First National Securities v Jones

A person not party to deed cannot ask that it be set aside: Essi v. Itsekiri Communal Land Trustees

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3. Delivery

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Maker of deed expressly or impliedly shows intention to be unconditionally bound by the instrument. Deed takes effect from date of delivery, not necessarily date on deed Awojugbagbe Light Industries v. Chinuke.

Delivery may be absolute (complete upon actual transfer of the instrument from grantor's possession) or conditional (aka delivery in escrow, delivery at upon happening of certain events or fulfillment of certain conditions. Awojugbagbe Light Industries v Chinuke.

Examples are: delivery pending payment of balance of purchase price, pending the receipt of Governor's consent to transaction (if needed)

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4. Attestation

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Act of witnessing an instrument in writing, that one or more persons were present when deed was executed. It's proof of due execution. For company, attestation is by Secretary and Director of company.

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Deed of Assignment

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Legal of instrument with probative value signifying agreement binding on parties who have entered into it.

Employed by a holder of a term of years in property who assigns his interest to another for a consideration.

Assignee undertakes to observe conditions laid out in headlease and indemnify assignor in event of his default.

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Where Deed of A is employed

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1. Assignment of remaining interest in a statutory right of occupancy granted by Governor pursuant to LUA

2. Creation of a legal mortgage by assignment

Note: 3% of value is payable before Deed of A is registered at Lands Registry under Lagos State Lands Registration Law, 2014

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Formal Parts of a Deed of Conveyance

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Commencement

THIS DEED OF LEASE/MORTGAGE/ASSIGNMENT

Date

Made this _____ day of _____ 20___ OR

IS made this ____ day of ____ 20___ (where Recital exists)

Goddard's case: better to leave space of date void until Governor's consent is obtained.

Anuku v Standard Bank Ltd

Date is relevant for payment of stamp duties and registration. Deed must be registered within 60 days of its execution, stamped within 30 days of execution

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Parts of Deed of Conveyance

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Parties

Between

_________________ of ____________ (ASSIGNOR/MORTGAGOR/LESSOR/VENDOR) of the one/first part

AND

_______________ of ______________ (ASSIGNEE/MORTGAGEE/LESSEE/PURCHASER) of the other/second part.

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Parts of Deed of Conveyance

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Recital

"IS" made this _____ day of _____ 20___

WHEREAS

It's a formal statement setting out matters of facts, giving history or background into vendor's acquired right, sought to be conveyed or sold.

Types:

Narrative/Historical- a brief historical trace of root of title of vendor

Introductory - explains the reason for present conveyance in deed

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Parts of Deed of Conveyance

Effects of Recitals

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Evidential purpose s.162 EA the doctrine of ancient document. Held in Ayanwale v Odusanmi, the production of a doc of title which isn't less than 20years at time it was to be released upon raises presumption that execution and signature are correct.

Estoppel- they may operate as estoppel against party who made the statement and bind him and his successors in title Olukoya v Ashiru

Recitals in construction of operative part- though not part of operative part, where it's clear and unambiguous, it could be referred to for constructing operative part. Owoade v Omitola

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Parts of Deed of Conveyance

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Operative Part

Testatum:

NOW THIS DEED WITNESSES AS FOLLOWS

Consideration:

In consideration of the sum of N......... (in words)

Use of consideration: the conveyance is not voluntary/a gift and the grantee is not a volunteer as it's a requirement of the Stamp Duties Act

Receipt Clause:

"...receipt of which the assignor acknowledges"

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Parts of Deed of Conveyance

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Covenant to Title:

As