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