CHRISTOPHER GEORGE GREENE 1

CONVEYANCES

Question: Identify and fully describe the component parts or divisions in a conveyance.

Answer

1. COMMENCEMENT AND PARTIES – this part contains the date the conveyance is made and
the names of the parties to the conveyance and their respective capacities (i.e. vendor or
purchaser, which expression where the context admits is taken to include their heirs and
successors in title). It normally starts with “This conveyance is made…”

2. RECITALS - this part 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. It is no longer necessary to recite the history of the property
going back 40 years; it is sufficient that the recitals contain enough facts linking the present
conveyance to the immediate previous instrument. The vendor or his heirs and successors in
title are estopped from denying facts contained within the recitals. The recitals may also be used
in aid of interpretation of the conveyance. The recitals usually start with “Whereas…”

3. TESTATUM – this is the beginning of the operative part of the conveyance. It includes the
consideration given for the property and also serves as a receipt for the same It usually states
“Now this conveyance witnesseth…”

4. THE OPERATIVE PART – this is the most important part of the conveyance which actually
conveys the property from the vendor to the purchaser. Under section 7 (1) (a) of the
Conveyancing Act 1881 in every conveyance for valuable consideration where a person conveys
and is expressed to convey as beneficial owner, there are certain covenants that are deemed to
be included and implied. The operative part usually begins with the words “The vendor as
beneficial owner hereby grants and conveys unto the purchaser…”.

5. PARCELS – this is part of the operative part and clearly and unambiguously describes the
property that it is intended to be conveyed. It usually states “… all that piece and parcel of land
situate lying and being at…”

6. EXCEPTIONS AND RESERVATIONS – These are never implied into the conveyance; they must
be expressly included.
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7. HABENDUM - this part specifies the estate which is granted to the purchaser. It usually states
“to have and to hold… for an estate in fee simple absolute in possession free from all
encumbrances”.

8. SCHEDULE - this contains a description of the property intended to be conveyed, its exact
location, size and boundaries, to ensure there is no mistake as to the identity of the property.

9. TESTIMONIUM - this part concludes the lease and begins “In witness whereof…”. It contains
the signatures and seals of the parties and witnesses. The locus sigilli is the position indicated
for placing the seal.
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Question: Identify and describe the 4 usual covenants that are implied where the phrase “as
beneficial owner“ is used in a conveyance for valuable consideration.

Answer
The phrase “as beneficial owner” is intended to express the fact that the vendor conveys the
property in his capacity as the beneficial owner of the property. Under section 7 (1) (a) of the
Conveyancing Act 1881, in every conveyance for valuable consideration where a person conveys
and is expressed to convey as beneficial owner, there are 4 covenants by the said beneficial owner
which are deemed to be included and implied into the conveyance:

1. That the vendor has the right and full power to convey the property – this covenant will be
broken if the vendor’s title to the property is found to be defective. In EASTWOOD v ASHTON
(1915) where the vendor originally had title but had allowed a squatter to obtain title by adverse
possession, the vendor was liable for an omission of this fact.

2. That the property shall be held by the purchaser in quiet enjoyment without any lawful
interference by the vendor or any persons claiming through him – quiet enjoyment means any
physical disturbance. Further, it means any disturbance that is lawful. This is not a contradiction;
if the disturbance is unlawful remedies in tort are available. Instead the covenant protects the
purchaser from lawful disturbances (see the case of MALZY v. EICHOLZ, 1916). Dictum in
BAYNES v. LLOYD established that the covenant arises from the use of certain words, such as
“convey”. HALL v. LONDON BREWERY CO. held that the covenant arises from the ordinary
words of conveying or their equivalents and not any specific words. The modern position is that
the mere relationship of vendor and purchaser gives rise to the implied covenant.

3. That the property is free from all encumbrances which are not mentioned in the conveyance, or
that it is otherwise sufficiently indemnified against the same – where any encumbrance such as
a charge or a mortgage is subsequently discovered the covenant will have been breached.

4. That the vendor or his agents will, at the request and at the cost of the purchaser or his
successors-in-title, render further assistance to cure any defects in the conveyance – under this
covenant, the vendor may be compelled to convey to the purchaser (or his successors-in-title)
any outstanding estate or interest necessary to give effect to the conveyance, even if that estate
or interest was acquired subsequently (OTTER v. VAUX, 1856).