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• Determine who the parties are and conceptualize what the relationship is between the
parties
• Determine the law governing the instrument
• Law of jurisdiction instrument applies or operates in
• The form of the instrument
• Components element of the instruments
• Clarity accuracy grammar punctuation stylistic elegance in writing
• Note taking is essential you must be able to recreate original

QUALITIES OF GOOD WRITING

MAKING CHOICES: everything that appears at your final draft is there because you want it
to be there.

THE USE OF ENGLISH LANGUAGE: plain English is highly recommended but there are
times when technical terms are preferred over plain English. There are times when long
complex sentences give right emphasis than short sentences. Your writing should clarify what
would otherwise be unclear.

OPINION WRITING: try to explain complex situations so that it may be understood while
pleadings define issues and bring them into the open.

CLARITY OF THOUGHT AND EXPRESSION: it is imperative that barrister writes with

clarity, and it is achieved through correct grammar punctuation precision non-ambiguity
consensus completeness and elegance. Barristers writing should be free from grammatical
errors The rules of grammar dictate word forms word order and sentence structure. A sentence
must be properly composed. In a long sentence there should not be grammatical inconsistency.
A comma should not be placed before ‘and’. Your writing should be well punctuated Choice
of punctuation marks are just as much a part of drafting as choice of words. The sense of a
sentence can be distinguished by a comma in the wrong place. A subordinate clause should not
start a comma and end with a dash a bracket must not be open without being closed. A barrister
should write with precision everything you write should be exactly what you want to say
pleading require absolute precision Good writing must be free from ambiguities and must be
concise and free from repetition. It should be on point your writing should not be a summary
of what you mean to say. Ideas must be expressed completely and not partially expressed it
must explain your full reasoning step by step in writing you should keep the reader in mind
Writing to a non-lawyer requires the use of little legal terms because you aim for the reader to
understand. A letter to a lawyer for instance can be filled with legal principles and terms. An
outline of the ideas you want to include in the document is useful for guiding your writing. Use
a good layout you can write on numbered paragraph and subparagraph as it is easily understood
and easier to read. Make use of everyday English. You discover precision by adopting the
formal and old-fashioned phrases that you find in precedents. Complex ideas can be difficult
to separate sub paragraphs. The use of correct legal terminology where it is necessary is vital.
Avoid archaic language even if you are trying to ensure precision. Use definitions wherever
you are going to use terms as it avoids ambiguity and makes for much plainer reading. Try to
maintain simplicity in writing. Two separate sentences must be separated by a comma rather
than a full stop or semi colon avoid putting verbs in the wrong tense avoid omission of the
definite or indefinite article. Read your drafting at least thrice and try reading it out loud at least
once. Analyse and research your draft and determine the essential content of your draft

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THE DRAFTING PROCESS

The process of drafting instrument usually begins with receiving drafting instruments and
terminates in the completion of an agreed draft. But the process needs to be viewed in broader
context if it is to be understood fully. Drafting process is trust one part of many in the process
of legislation whereby an idea or concept concerning the social framework of society becomes
government policy is transformed to legislative shape by means of drafting process and
eventually passes through the legislative machinery to reach the statute book as law. The
draftsman is not usually a party to the beginning of the process. The desire for legislature may
in any instance come for one or more of a great committee branch of public service etc.
The draftsman is not usually involved in the initial stage of legislative process. The drafting
process is just one part of the process of legislation where an order or concept concerning
society’s social framework becomes governments policy, is transformed to legislative shape
by means of drafting process and eventually go through the legislative machinery to reach
statute book of law. Legal drafting has been defined as the formulation and preparation of legal
documents such as deeds contract Wills and trust. The definition is restrictive as it excludes
other legal writing like letter writing, legal opinion and legislative drafting etc. It’s important
for a legal draftsman to pay attention to the way he drafts his legal documents because legal
drafting is communication in a permanent form to avoid seeking clarification of what has been
written by him, draftsman may not be available to offer clarification parties are bound by what
has been written and signed to avoid cost of time and finances to effect correction on document
and document speaks of the draftsman even after his demise. A draftsman must possess certain
qualities he must be versed in law, has good knowledge of the law and possess high mentality,
discipline, high level of concentration clear thought, strong perception ability to work under
pressure, good listener, must be good planner and capable of handling confidential information.
A draftsman is not a policy maker but he may assist the policy maker when drafting a bill. The
sources of materials for drafting bills are:
1. The 1991 Constitution
2. Electoral Promises
3. Manifesto
4. Resolution of the legislative
5. Law reform Commission
6. Professional bodies and civil society organisation report
7. Judicial decision
8. Electoral in Newspaper
9. Proposal from ministries
10. Government white papers

FIVE STAGES OF DRAFTING PROCESS

1 UNDERSTANDING: a prudent draftsman should ask the reason behind the proposed
legislation. He must understand thoroughly and completely the purpose of the legislation he is
instructed to draft. He must be able to identify the mischief and other defects intended to be
remedied to the preparation of drafting instruction, communication is paramount. The
draftsman must make it clear to those instructing him the kind of drafting instructions that will
be most helpful for him. He can also consult with his instructing officers at an early stage after
his receipt of the instruction to draft and during his preliminary digestion of the drafting
instructions. The instructions should include technical details and terms intended to achieve
methods of machinery implementation and its effects on existing laws if any. The draftsman
must have comprehensive knowledge about the purpose and background of the work he is to
do. He must be certain as the mischief and defect of what he is to draft the draftsman must
know the object of the law and he must be able to know all anticipated challenges.

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2 ANALYSIS: after understanding you must make sure you analyse the instructions to avoid
conflict with larger picture of legislation or existing laws or existing rights and privileges.
Legislative proposal should be subject to analysis in relation to existing law, potential danger
areas as to avoid conflict and practicability as a law that cannot be implemented is no law.
Draftsman owes society a duty of care to ensure that their rights are not interfered with.
Draftsman must study the legal parts and materials as the law and Draftsman should always
construe them together. The draftsman should balance the powers he embeds in one area of
government so that such said power will not be focussed or centralized on one

3 DESIGN: It is the structure of information in such a way that it enables the readers to easily
get the needed information. It covers the overall arrangement of the bill and the internal
arrangement of sections. It aids the reader understanding of the bill. The draftsman should make
use of case laws and precedent so he won’t miss vital points. The bill must be divided into parts
and each parts are independent. Putting legislation in parts provide ease of reference clarity of
presentation and easy comprehension by reader. The design of statute must take into account
adherence to conventional short title, commencement, application, interpretation, repeal and
saving provisions.

4 COMPOSITION: the duty of draftsman is to ensure that the bill is readable by using simple
English language and he must use provisions compatible with the purpose of the bill. Draftsman
must be precise when drafting because laws are not meant to be read by lawyers alone but by
the public at large. Draftsman should accept criticisms of drafts so that he can objectively ratify
the problems associated with his draft. Draftsman should reread, redraft until his draft is
improved. Attention should be paid to substance rather than the form. It enables the draftsman
to have an opportunity to make corrections and rectifications until the written work becomes
polished It takes mental discipline as attention should be paid to the choice of words sentence
structure and grammar.

5. SCRUTINY: the draftsman must take a critical look over his finished product, he should
read it and consider it as a whole. Draftsman must check all matters in detail. It entails having
a colleague to scrutinize his draft and give a fresh perspective to the draft. It the stage of editing
proof reading to correct mistake and errors and to ensure that the real intention is conveyed.
Draftsman must read it as a whole to ensure that the draft form a coherent whole and material
flow in logical sequence. Draftsman must check references, spelling and punctuation.

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STATUTE
LONG TITLE: it describes the spirit and scope of the Act. The spirit intends to show the
intent and atmosphere it was made, and the scope is the coverage of the Act. Every Act begins
with a long title which indicate the general purpose of the Act. It is a legitimate method of
interpreting the Act as a whole and ascertaining its scope. Apart from parliamentary
consideration a comprehensive long title may serve as a valuable purpose in assisting to
communicate the intended spirits and scope of the Act. The long title should be drafted in terms
wide enough to embrace the whole of the content of an Act. The long title is important for
amendment and debate on the Act in parliament and also for the purposes of interpretation of
the Act. The long title is the formal title opening at the head of a statute. It intends to provide
a summarized description of the purpose of the instrument. It is the operative provisions of an
Act where the operative provisions are ambiguous, and it provides a clear statement of
legislative intention. In UK long title is important since under the procedure of parliament an
Act cannot be amended to go outside the scope of its long title. It the wording at the start of an
Act that begins “An Act to…” and then lists its purposes or the Act says, “being an Act to…”.
The content of the Act is covered in long title. It indicates the general purpose of the Act. It
should be drafted wide enough to embrace the whole content of the Act. Where an Act is
complex the long title must embrace and describe each of the purpose.

Thornton state that “it presents an opportunity to the draftsman to say in plain and unambiguous
terms all the Act is about since a comprehensive long title may serve a valuable purpose in
assisting to communicate the intended spirit and scope of the Act”.

Oxford dictionary state that “every modern Act of parliament begins with a long title which
summarizes its aims and ends with a short title by which it may be cited in any other document”.

VACHER & SON LTD V LONDON DAJIETY OF COMPOSITION 1913 the long title
is important because it is legitimate to use it for the purpose of interpreting the Act as a whole
and ascertaining its scope.

RE WYKES 1961 the long title may not be looked at as modifying the interpretation of the
plain unambiguous language.

THE STATE V ADRIAN JOSCELYNE FISHER the long title is part of the Act itself and
its legitimate to use it for the purpose of interpreting the Act as a whole and to use certain its
scope and it may be regarded as and in resolving difficulty.

SHORT TITLE: It is like a label in that it identifies and describes the Act. It functions to
facilitate reference and its objective is identification rather than description. Its informative and
descriptive as its compatible with essential requirement of brevity. The short title is the formal
name by which legislation may by law be cited. It contrasts with long title which while usually
being more descriptive of the legislation purpose effects is generally too unwieldy for most
cases. Unlike the long title which precedes the preamble and enacting formula and thus sits
outside the main body of text the short title for modern legislation is explicitly defined by
specific section typically at the very end or beginning of the main text. It is used for
convenience. Its first word is preceded by definite article ‘the’ and includes calendar year in
which it receives presidential assent at its end.

Thornton concludes that it would be prudent for the draftsman to assure the short title.

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S106 (6) of 1991 constitution gives parliament the right to make all laws into styled Acts and
for the words of the enactment to be enacted by the president and members of parliament. These
words cannot be varied and therefore must be used in their precise exactness not using them
can crystalize the enforceability of a statute.

VACHER AND SONS LTD V LONDON SOCIETY OF COMPOSITION 1913 Lord

Moulton once described the short title as a statutory nickname to abbreviate the necessity of
always referring to the Act under it full descriptive title.

NATIONAL TELEPHONE CO. LTD V HRN POST MARTEN GENERAL 1913 It has
been held that the short title may not be used in the construction of the body of an enactment

RE BOALER 1915 the short title is used not to resolve doubt but solely for the purpose of
facility of reference.

ENACTING FORMULA: it depends upon the constitution, the requirement of which must
be followed strictly. If need be stated only once in the Act. A good draftsman should understand
that the enacting formula gives validity to an Act, and it serves as an authorization of the Act
to become laws. It is the enabling clause.

COMMENCEMENT: the commencement of an Act may either be the date when it comes
into operation or on a specified retrospective date that it may be deemed to have come into
operation. The legislation may make a specified provision to specify a date or commencement
empower some person to specify a commencement date on which Act was signed or published.
It is inserted in square brackets by government printing department and if it is not inserted then
it is presumed it on the day it was signed. The date of commencement is put at right hand side
which indicates the date the Act was signed, and commencement is the date in which the Act
will come to operation.

THE PREAMBLE: it gives you the antecedents and objective that brought the statute to
existence. It desirous on drafters to give information as to why the statute came into operation.
The preamble is optional in a statute. It tells you about the political or other events that led to
the creation of the statute. It explains certain facts which will lead to a better understanding of
the Act. It provides background information but not with the intention of influencing the
antecedent in a statute and to some extent serve as a recital.

APPLICATION PROVISION: it is a section that indicates the initial area of application of a

statute. Such a section solves problems as to how a new law will affect situations existing when
that law comes into force. It defines the locality where the statute becomes applicable. When
laws are enacted by parliament are so enacted to apply throughout the country yet parliament
can limit the application of certain statute enacted by them to certain parts of the country etc.

DURATION: legislation is usually perpetual in duration unless specified. If an act is intended

to be of temporary duration the Act will specify a date when it expires.

SAVINGS: it is used to preserve certain laws referred to as existing laws.

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DEFINITION: may serve the function of removing ambiguity or to abbreviate. It stipulates a

meaning and it should not confuse or mislead a reader by stipulating outrageous or extravagant
significations such as defining land to a ship etc.

REPEAL: it is a way of bringing the life of legislation to an end. It is done expressly or by

implication.

SCHEDULE: it is used to banish technical and detail matter from the main body to aid clarity
and avoid distraction to the readers and it forms part of the legislation. It is the appendix or
supplement to the Act.

EXPLANATORY NOTES: it is not part of the law and is often extended when passing the
Act to law. The essence is to simplify the legislation into an easier form.

INTERPRETATION: defines words and phrases and how they must be construed or
understood within the statute.

PURPOSE CLAUSE: is an introductory clause to a statute exploring its background and

stating the reasons of its enactment.

SUBSTANTIVE PROVISION: it states what the Act is about and gives the provisions of the
statute that prohibits or construe certain activities as parliament deems fit.

ADMINISTRATIVE PROVISIONS: it states how the law is to be administered and

empowers certain bodies to implement the provision of the statute.

CONSEQUENTIAL AMENDMENTS: these are amendments which come about as a result

of the enactment of the Act.

Offences and penalties, miscellaneous provisions and transitional provisions.

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CONVEYANCE
COMMENCEMENT: it describes the nature of document and contains the date the
conveyance is made. It tells you when the document comes 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….". That the conveyance will not only be
binding on the parties but also their successors and assigns.
• REFERENCE TO THE PARTIES: It makes reference to the names of the parties,
their addresses and profession to avoid ambiguity. No person should be included who
is not a party in the conveyance. The parties must be clearly identified. Sometimes the
identification goes as far as the date of birth of the person. The most effective way of
distinguishing a party with common name and surname is by their age.
• DATE: it merely tells the date of the conveyance. This is part of the commencement,
and it takes effect on the date of delivery.

RECITALS: it the narrative or introductory. 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 mandatory requirement in a conveyance, and it is intended to transfer
the beneficial ownership either the fee simple or the lease to purchaser or lessee. The
significance of the Recitals is to show that the vendor or lessor has a good root of title and can
therefore transfer ownership. Recitals are a narration of the facts which are introduced by the
word "WHEREAS" and are of two kinds:
• Narrative recital: it shows the vendor's title and the relationship of the parties to the
deed.
• Introductory recitals: it explains the purpose of the deed, what the deed is about or
intended to do, it tells you the objective.

Importance of Recital: the narrative gives the title of the property and introductory explains
the purpose of deal. When there are more than one party in conveyance and each party has
various interest in property to be conveyed the recitals explain their interest. Recital tells you
in what capacity the vendor is selling. The recital tells you about the encumbrance on the estate
if there is any. The narrative is limited to the last owner.

What is the legal effect of the Recital?

When a recital is used the doctrine of estoppel is evoked. When a statement is made that the
property is derived from “X” you are estopped from going back on your word. Recital estopp
party from executing a deed and any one from denying their truth or existence. When a
statement is made in a recital it a conclusive presumption that it is the truth. After 20 years the
recital constitutes sufficient evidence of their truth. If the operative part of the deed is
ambiguous the recital will be used to restrict or explain the ambiguity.

TESTATUM: consideration, receipt clause, operative words such as beneficial owner. 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/CONVEYANCE WITNESSTH..."
• 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

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deed. Full disclosure of the purchase price becomes necessary to avoid unwanted
situation even if it is a deed of gift, it is necessary to include the amount.
• RECEIPT CLAUSE: it shows the sum 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.
• PARCEL CLAUSE: It defines the boundaries of the estate and describes property in
such a way that it may be connected in earlier deeds or transactions. It is a description
of the physical property conveyed, plan, exceptions, and reservations. It states, "ALL
THAT piece and parcel of land and hereditament situate, lying and being". It must
clearly identify the property by description based on its present appearance. It may add
an exception to say that as far as this transaction is concerned, we are excluding this
part. An exemption is something or right which already in existence but exempted in
the conveyance. The exception or exemption must not exclude the grant, the grant
would be deemed repugnant and void. A reservation is not part of the land it something
or right created for the benefit of the vendor for example, a property is sold, and
condition is imposed relating to the type of property to be built and it clearly not part
of the land. A reservation of a legal estate in a conveyance is effective even though the
conveyance is not executed by the person in whose favour or interest the reservation is
made. Reservation and exception are not implied the must be expressed.

The operative part is the part that effectively transfer the property. It is where the interest
passes. It consists of consideration and receipt. The testatum is the beginning of the operative
part. The operative words are words which usually pass the freehold title. For example, “the
vendor as beneficial owner hereby conveys on to the purchaser….” The operative words are
not only “the beneficial owner” the vendor can be in other capacity such as “the vendor as
settlor” or “the vendor as mortgagor” or “the vendor as trustee” etc. that reminds you that the
vendor may take various status.

The consideration set out the money price in consideration of which the property is sold. If
transaction is made by deed, the deed itself should not proof the consideration. The
consideration shows that the purchaser is not a volunteer. The fact that the conveyance is for
value is important for full disclosure of purchase price etc.

The receipt for practical reason the conveyance contains a receipt clause so once it waived that
the conveyance when prepared is not received with controversy. The receipt acknowledges that
the purchase price was paid. The receipt set out in body of deed is sufficient evidence of
payment. If conveyance is handed over to purchaser without first receiving money the
purchaser can use conveyance as evidence that he has paid the money and he was duly
authorized to receive the conveyance.

HABENDUM CLAUSE: 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 PURCHASER 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 it is subject to encumbrance for
example if the estate is subject to a mortgage, it must be stated in the habendum otherwise the
purchaser has a right against the vendor for breach of an implied covenant. A conveyance
executed without words of limitation will pass the whole estate of interest of the grantor unless
the contrary is expressly and clearly stated in the conveyance.

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SCHEDULE:

TESTIMONIUM:

EXCEPTIONS AND RESERVATION:

ADDENDUM:

COVENANT OF THE PARTIES AND ACKNOWLEDGEMENT: it states that the party

has signed the deed.

ATTESTATION: implies evidence of the truth by witnesses who establish that the transaction
took place in their presence. It reads "IN WITNESS WHEREOF"

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".
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 implies
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.

Where the phrase as beneficial owner is used in a conveyance for valuable consideration. The
phrase as beneficial owner judicially defined to mean an operative word carrying along implied
covenants. These covenants are implied once it is proved that a valuable consideration has
passed. The phrase is usually found in the testatum. The testatum includes the consideration,
receipt clause and the operative words in a conveyance. The phrase as beneficial owner passes
on the title from the vendor to the purchaser.

WHERE THE VENDOR CONVEYS AS BENEFICIAL OWNER, HE IS PLEDGING

AN IMPLIED UNDERTAKING TO THE FOLLOWING:
1. Covenant of good root of title
2. Covenant for quiet enjoyment
3. Covenant that the property is free from encumbrances
4. Covenant for further assurance.
The estate in a conveyance is conveyed in fee simple absolute in possession.

COVENANT FOR GOOD ROOT OF TITLE: that person has right to sell and transfer title.
It means that the estate or interest in the property contracted to be sold is conveyed by the
vendor based on a right that he has to do so. An authority on this is the case of EAST WOOD
V ASHTON 1915 where it was held that the court will imply that a vendor of a real estate who
has received a valuable consideration should have the right power and authority to convey the
entire interest contracted to be sold. Failing which the purchaser has the right to sue for breach
of contract for the implied covenant to title. This is because the purchaser obtains whatsoever
the exact estate or interest that the vendor owned in the way of a fee simple in the land
contracted to be sold.

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It is 40 years to trace good root of title as per the vendors and purchasers Act 1874. The
covenant of good root of title is evidence that:
1. The whole legal and equitable estate in the property has been dealt with
2. That it contains nothing that appears to cast any doubt in the title.

It describes the property. S1 of the prescription Act of 1832 provides that a good root of title
must show 30 years of unfettered possession. S5(3) of limitation Act 1961 provides 12 years
to trace unfettered possession. In order to establish good root of title the purchaser must
ascertain:
• That an unbroken title or link has been traced from the instrument to the vendor and
whether the parties to the various instruments abstracted had power to convey in the
capacity in which they have contracted to sell as in GREENWOOD V WHITEHEAD.
This means that the vendor has full power to convey the entire interest contracted to be
sold as in EASTWOOD V ASHTON 1915. ELLIOT V PIERSON 1948 Harmon J
‘At law A may contract to sell to B any defined subject matter and can enforce the
contract if by the time when he is obliged to do so he has obtained a sufficient interest
or can compel other interested parties to concur in the sale. It matters not at all that at
the date of the contract A had no interest if he obtains it in time to fulfil the bargain.’

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

A GOOD ROOT OF TITLE when the vendor of land prepares for and sells to the purchaser
must commence with a good root of title.

THIS 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:

• deal with the whole legal and equitable estate in the property.
• contain nothing that appears to cast any doubt in the title; and
• describe the property.

If the instrument is deficient in any of these particulars the purchaser is entitled to request
further evidence.

THE FOLLOWING ARE EVIDENCE OF BAD ROOT OF TITLE:

• a general demise because the devise contains no description of the property.
• an equitable mortgage.
• a deed exercising a power of appointment unless a deed creating the power is produced.
• a disentailing assurance, unless the deed creating the entailed interest is produced.

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• a title depending on Statute of Limitation. A root of title depending on adverse

possession for 12 years under the Limitation Act (a squatter's title), is never a good
root of title. The squatter may never in fact after the limitation period as the true owner
may have been under a disability during the period of adverse possession. In any case
a squatter being a volunteer takes subject to all equities. RE NISBET V POTTS
CONTRACT 1906 which deals with restrictive covenants. Where the vendor has
provided a good root of title and traces the title to a particular date and can show adverse
possession from that date for the statutory period, the purchaser must accept the title as
in RE. ATKINSON V HORSELL 1912.

AN ABSTRACT OF TITLE MUST CONTAIN, BESIDES THE DOCUMENT

FORMING THE ROOT TITLE:
• every subsequent document and statement of every event e.g., births, marriages, or
deaths which forms a link in the vendor's title. births, marriages, and deaths are proved
by birth, marriage, and death certificates respectively or by statements of members of
the dissociates family, or by Statutory Declaration (under the Statutory Declaration
Act, 1835), of persons acquainted with the family. If, however, in the case of death,
probate, or Letters of Administration to the dissociates estate forms a link in the title,
no other evidence of death is required.
• Intestacy is proved by the production of Letters of Administration. 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. A Will should be proved by the production of probate or Letters
of Administration which will annexed, the copies thereof, or if the Will has not been
proved, Will itself. A disentailing deed should be proved by a certificate of enrolment.
• legal mortgages, even though the money has been repaid and
• there-conveyance or receipt endorsed showing the discharge of the mortgage.

THE FOLLOWING SHOULD HOWEVER NOT BE ABSTRACTED:

• expired leases,
• equitable mortgages which have been discharged, and
• instruments relating to interests which will be overreached by the conveyance. e.g.,
trusts affecting settled land.

COVENANT FOR QUIET ENJOYMENT: free from disturbance by not only vendor but by
other persons. The vendor undertakes that the interest of the purchaser ought not to be
disturbed. This means no interference by anyone who claims through or under or deriving title
from the vendor. It is important to note that when there is a breach of the first covenant of title
or breach to this covenant. The legal advantage of breach of this covenant is that time begins
to run only from the inference of the quiet enjoyment. Whilst in the breach of covenant of title
time begins to run from the date that the conveyance is executed. Hence the purchaser must be
able to enjoy the interest in the estate without interference from any assignee or beneficiary
claiming under or through him. Quiet enjoyment means the vendor undertakes not to interfere
on the estate acquired under the transaction either by himself or any person claiming through
him or by his successors in title as in DAVID V SABIN 1893. 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.

COVENANT FREE FROM ENCUMBRANCE: Here the vendor makes an implied

undertaking that there is no legal or equitable interest aside from his own being the vendor

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conveying the property. When there is encumbrance to the estate and interest in the property it
should be expressly stated in the conveyance. It refers to an impediment to the title conveyed
and it must be expressly stated in the deed. Hence the property must be free from encumbrances
claims or demands other than those to which the conveyance is made subject. It is immaterial
if the covenantee has notice of the encumbrance as in LOVELL V WITTENIGTON. 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.

COVENANT FOR FURTHER ASSURANCE: here the vendor makes an implied

undertaking to correct any future or previous mistakes to do whatever is required to make the
purchase title perfect. This was decided in the case of TAYLOR V DEBAR. In OTTER V
VAUX it was held that further assurance is implied when the vendor conveys for valuable
consideration and as beneficial owner.

Issues surrounding the implied covenants notwithstanding the above it is important to

note that there are issues surrounding the implied covenants:
1. They are implied only where the conveyance is executed for value. It would not be
implied if it is a voluntary conveyance.
2. No covenants are implied if the conveyance is voluntary.
3. The covenants are qualified but not absolute i.e.., the vendor will only be responsible
for breached occasioned by him i.e., they would only be implied for defects caused by
the vendor himself person acquiring title by him person claiming in trust for him and
person claiming through him.
4. It can be enforced by anyone to whom the estate or interest is vested and can be
expressly varied in the conveyance.
Notwithstanding that the law has implied these covenants the parties can themselves expressly
state other implied covenant so long as it is stated in the deed.
Where the vendor conveys as a trustee or personal representative or mortgagor or under an
order of the court the implied covenant will not apply.
The only covenant that applies in this case is that the vendor must not himself encumber the
property Section 7 (4) of conveyancing Act 1881.

In BUTLER V MOUNTAIN VIEW ESTATES, it was held that where a person who is a
beneficial owner or any other person directs another to convey the property as a beneficial
owner then the four covenants apply. The implied covenant will not be applied where the
vendor conveys as a trustee or personal representative or mortgagor or under an order of the
court. Breach of this covenant is capable of rendering the transaction in a deed void because it
goes to the root of the contract.

IDENTIFY 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. Implied covenant will be enforced by anyone whom the interest is vested, the vender
need not transact with a third party.
3. It can be expressly varied in a conveyance.
4. 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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5. Where a person conveys as a trustee/mortgagor/personal representative 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, where 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 as in 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 or 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.

EXPLAIN THE PARTS PLAYED BY A RECITAL IN A 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. It explains 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 authorized 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 INCLUDES:

1. Recitals estop the parties executing the deed and anyone claiming title through them
from denying their truth. A party will be estopped 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 or 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.

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 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:

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

• 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

Personal representatives may sell any property comprised in the estate in order to discharge the
labilities of the estate.

THE PURCHASER SHOULD HOWEVER VERIFY OR INQUIRE AS TO THE

FOLLOWING POINTS:
• That all personal representatives who proved the Will, or to whom letters of
administration were granted or are joined in the conveyance
• That the personal representatives have not previously assented to the vesting of the land
in another person. This is usually contained in a recital in the conveyance from the
personal representatives to the purchaser. If such a statement is obtained, the purchaser
will get a good title, except as against a previous purchaser or unless notice of a previous
assent or conveyance is endorsed on the probate or the Letters of Administration.
• That the probate or Letters of Administration contain no such notice of previous assent
or conveyance.
• That all debts and other liabilities of the dissociates estate have been discharged.

WHAT SPECIAL PRECAUTIONS IF ANY SHOULD BE TAKEN BY A PURCHASER

OF FREEHOLD WHEN:
• The vendor’s personal representative
• The vendors' title depends on assent by personal representative

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 has been discharged, and

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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?
1. A deed executed under a power of attorney should be proved by the production of the
Power of Attorney and proof that the power was not revoked by the donor's death or
otherwise before the power was executed.
2. 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.
3. A disentailing deed should be proved by a certificate of enrolment.

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.

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LEASES
A lease is an interest in land for a specific period. It has a definite period to determine. By
Section 4 of the Statute of frauds 1677 a contract for a lease must be evidenced by a
Memorandum in writing signed by the Party to be charged. Section 3 of the Real Property
Act 1845 a lease required by law to be in writing is void for the purpose of creating or
conveying a legal estate unless made by deed.

A lease is a “demise” or grant of land by one person, called the lessor, for another, called the
lessee, for an interest less than a freehold and the interest which remains in the grantor being
called a reversion. The interest of the lessee may be a tenancy at will, or from year to year or
for years, and is personal property. The subject-matter of a lease must be real estate. The
creation of a similar interest in pure personal property is not generally called a lease.

As a rule, a person who has power to sell his land has also power to lease it but there are some
special points to be considered in connection with the powers of leasing possessed by persons
who are under disability, or who are limited owners of land.

Infants by the common law a lessor, who has made a lease while an infant, may repudiate it
when he attains full age, and his representatives may do the same if he dies underage, but he is
bound by the lease unless he repudiates it within a reasonable time after attaining majority.
Similarly, although an infant may at common law take a lease, he is entitled to avoid it on
attaining majority, though he cannot recover any rent which he has paid but he must avoid it
within a reasonable time, or he will become liable to pay the rent and the arrears of it and to
perform the covenants contained in the lease.

A lease by a person of unsound mind is apparently binding on him, unless the lessee knew of
his insanity at the time the lease was made, or unless the lunatic is so found by inquisition, or a
receiver has been appointed in respect of his estate under Section 116 of the Lunacy Act 1890,
in which case a lease must be granted by the lunatic's committee or receiver under an order
obtained for the purpose. Further, by the Settled Land Act 1925, provision is made for the
granting of leases of settled land of which a lunatic is tenant for life. Presumably, a lease to a
person of unsound mind not so found, and in respect of whose estate no receiver has been
appointed, is also binding unless the lessor knows of the insanity.

A married woman can grant a valid lease of property unless her marriage and her acquisition
of the property both occurred before the 1st January, 1883, and the property was not given
expressly for her separate use. In this rare, excepted case, unless the property is settled land, a
lease can only be made by her with her husband's concurrence if the property is freehold, or by
her husband alone.

Trustees who hold land on trust for sale have all the powers of leasing given to a tenant for life
by the Settled Land Act 1925, but the powers can only be exercised with such consents (if
any) as would have been required on a sale under the trust for sale.

Although by virtue of Section 1 (7) of the Law of Property Act, 1925, a lease to take effect at
law must be granted by the estate owner, and a power of leasing will in general operate in
equity only, a legal term may still be granted by another in the name of and on behalf of the
estate owner in exercise of the powers of leasing of mortgagors or mortgagees, or of powers
conferred by special statutes, though in exercise of such a power no liability can be imposed
on the estate owner except in respect of the usual qualified covenant for quiet enjoyment. In

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accepting a lease under a power it should be seen that the terms of the power are strictly
observed; but the effect of non-compliance with these terms is not a serious matter as it was
formerly for by Section 152 of the Law of Property Act 1925, a lease made is intended
exercise of a power, but invalid by reason of some deviation from the terms of the power, if
made bona fide and the lessee has entered thereunder, is to be considered in equity as a contract
for a valid lease under the power But this does not apply to leases of land held on charitable or
public trusts, and is without prejudice to the provisions of the Law of Property Act 1925, for
the grant of leases in the name and on behalf of the estate owner.

A person who has already granted a lease may grant another lease to take effect in possession
as soon as the existing lease determines, subject to the limit of time laid down by Section 149
(3) of the Law of Property Act, 1925. He may also grant another lease to run concurrently
with the existing lease, even though the second lease is granted for a shorter term than the first.

The law that might likely affect the transaction must be determined in order to draft a successful
lease agreement.

The provinces Land Act 1976 operates to drafting of leases in the provinces.

CONTRACT FOR LEASE AND INVESTIGATION OF LESSOR'S TITLE.

Contract must be evidenced by writing. A contract for a lease must be evidenced by a
memorandum or note in writing under Section 10 of the Law of Property Act, 1925, however
short the term may be but although damages cannot be sued for when an oral agreement to
grant a lease is broken, specific performance may be obtained if there has been a sufficient part
performance of the agreement by the plaintiff.

Payment of rent in advance by a person not in possession is not sufficient part performance.
Remedy for breach of contract when the statute is complied with, either damages or specific
performance can be obtained if the contract is broken. But the statute is not complied with if
the memorandum of the contract omits to specify the time from which the term is to be
commenced, though the day on which a lease is to commence may be collected from the
agreement as a whole, it is no objection that the date of commencement is made to depend on
a contingency, e.g., the property falling vacant, provided the contingency has happened when
proceedings are brought to enforce the contract. Probably the Court would not decree specific
performance of an agreement for a lease which, if granted, might immediately be determined
under a proviso for re-entry. Similarly, specific performance will be refused when the term
contracted to be granted has expired or will expire before the judgment in the action can be
obtained. But there is no rule that the Court will refuse specific performance of an agreement
for a lease from year to year or even a shorter term.

If the lessor is unable, owing to the existence of restrictive covenants on his title, to grant a
lease in the form agreed on in the contract, the intending lessee cannot recover damages for
loss of bargain.

Investigation of title: in the absence of a contract to the contrary, if the intending lessor is a
freeholder, the lessee cannot require him to prove his title, but must assume that it is such as to
enable him to make the lease proposed. If the intending lessor is not the freeholder, but a
leaseholder, that is to say, if the lease proposed to be granted is a sub-lease or derivative term,
the lessee will be able to call upon the intending lessor to produce the lease or sub-lease out of
which the proposed lease is to be carved, and the mesne assignments of it for at least thirty

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years preceding the contract, if it is as old as that he cannot, however, call for the reversionary
title, which, in the case of an intended sub-lease, will be a freehold reversion, and in the case
of a sub-sub-lease, a leasehold reversion as well. It follows that, if there is any doubt, a contract
to be allowed to inspect the title should, in the interests of the lessee, be insisted upon, more
particularly where some consideration passes on the granting of the lease. Any dispute arising
between an intending lessor and lessee, not being a question affecting the existence or validity
of the contract for the lease, can be settle without action by means of a summons in chambers
under Section 19 of the Law of Property Act 1925. Once the lease has been granted, it cannot
be cancelled on the ground that its execution was brought about by innocent misrepresentation,
but only on the ground of fraud.

When a deed is necessary, By the Law of Property Act 1925, Section 53 and 54 (replacing
provisions formerly contained in the Statute of Frauds), all leases not put in writing and
signed by the parties so creating the same or by their agents thereunto lawfully authorised in
writing have the force and effect of leases at will only except leases taking effect in possession
for a term not exceeding three years whether or not the lessee is given power extend the term
at the best rent which can be reasonably obtained without taking a fine, which leases may still
be made by word of mouth and by Section 52 (replacing Section 3 of the Real Property Act,
1845), a lease required by law to be in writing is void for the purpose of conveying or
considerable latitude in creating a legal estate unless made by deed. But under the former law
the Courts had exercised construing the statutory provisions, and the decisions remain
authoritative under the Law of Property Act 1925.

RIGGE V BELL and CLAYTON V BLAKEY, that where the lessee had entered into possession
under a lease void under the statutes, and had paid rent, he became a tenant from year to year
up to the terms of the void lease so far as they were not inconsistent with such a tenancy. Then
it was held by the Court of Chancery that a demise in writing, which not being under seal was
void as a lease, was good as an agreement for a lease and specific performance of such an
agreement would be granted.

WALSH V LONSDALE, it was held that, by the effect of the Judicature Act, the tenant who
is in possession under an agreement for a lease is to be treated in every Court, which has
jurisdiction in equity as well as at law, as holding upon the terms upon which he would have
held had he received a valid lease in pursuance of the agreement; so that a distress for the non-
payment of an instalment of rent which would have been payable in advance if the lease had
been granted, was allowed in that case and by Section 146 of the Law of Property Act, 1925,
a tenant holding under an agreement for a lease, if he has become entitled to have his lease
granted, can obtain relief against forfeiture for breach of covenant under that section, just as if
a lease had been actually granted to him.

As a consequence, an agreement for a lease which sets forth the terms agreed upon is as good
as a lease, at any rate as between the parties. But the agreement only creates an equitable
interest and therefore, if it was entered into before 1926, a purchaser of a legal estate without
notice of it would not be bound by it, unless possession had been taken under it and if it was
entered into after 1925, or acquired under a conveyance made after 1925, a purchaser of a legal
estate for money or money's worth would not be bound by it unless it was registered as an
“estate contract” under Section 10 of the Land Charges Act 1925, even if he had notice.

Further the “general words” implied by Section 62 of the Law of Property Act, 1925, in a
conveyance, while they apply to a lease under seal or under hand for a term not exceeding three

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years, and so pass to the lessee all rights over the lessor's land which immediately before the
demise were actually used and enjoyed with the demised land, have no application to an
agreement for a lease for more than three years.

Contents of the Lease

Commencement: is date of delivery. It states the name and capacity of the parties. An option to
renew the term will not run with the lease. The duration of the term, i.e., the latest date of its
expiration must be fixed before the lease taken effect. A lease for years, without specifying the
number of years is deemed to be a lease for two years. A lease for two years certain and
thereafter from year to year is at least for three years. That the lease will not only be binding
on the parties but also their successors and assigns.

Recitals: are seldomly inserted in a lease, but they may sometimes be useful for instance, when
under a lease it is being granted by a lessee who is prohibited from granting it without the
licence of the lessor, it is useful to recite the fact that such licence has been obtained. Recitals
contains any introductory matter necessary to explain the lease and any narrative matter to be
incorporated into the lease.

Demise clause: i.e., operative part. Demise contains the words necessary to create the terms of
the lease. If there is no express covenant for quiet enjoyment, any form of demise implies that
the landlord is entitled to grant a lease and that the tenant shall have quiet enjoyment of the
premises.

Parcel clause: Describes the property, at its present status and condition as it is intended to
pass to the tenant. It must stipulate the boundaries and should be such that it should be able to
link previous parcel clauses of the same property. It contains a description of the property not
expressly or impliedly than it is intended to pass to the tenant

Habendum: States the name of the tenant and the start and end date of the term. It stipulates
the interest granted in the estate which is more than freehold and certain for a fixed period of
duration. It contains reference to the tenant by name, and the date of the beginning and end of
the term. Any term granted takes effect from the date of the beginning of the term with or
without actual entry by the tenant. Habendum is to specify the quantity and quality of the
lessee's estate. In it the commencement of the term and its duration must be clearly shown. The
term may commence at a past, a present, or a future date. If it is to commence from the date of
the lease, the day mentioned will be deemed excluded unless the intention of the parties appears
to have been to include it. If the date inserted in the lease is erroneous or the lease has no date,
or an impossible one, as the 30th of February, the term will commence from the delivery of the
deed. If the lease is not by deed, and no date is specified, apparently the term commences upon
the entry of the lessee. When the date mentioned in the habendum from which the term is to
commence is a past day, the term will run from the date mentioned in the habendum but in such
a case the tenant is not liable for breaches of covenant committed before the date of the lease.

Reddendum: contains a reference to the rent the tenant is to pay. The dates on which the rent
is to be paid, the date on which the first payment is to be made, and a condition that if the
landlord re-enters into possession, the tenant must pay the proportionate amount of rent due up
to date of such re-entry. Reddendum specifies the amount of the rent reserved and the times at
which it is to be payable. Rent must be reserved out of something upon which a distress can be
made in case it is not paid so that, as a rule, rent cannot be reserved out of an incorporeal
hereditament and it must be reserved to the lessor, and not to a stranger. The safest way,

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however, of reserving the rent is to make no mention at all of the person to whom it is reserved,
for it will always be incident to the reversion and payable to the owner thereof from time to
time without express mention. The rent must be certain in amount but to the expression
"certain" the maxim "Id certum est quod certum reddi potest" applies, so that the actual amount
need not be set down in so many words if some clue is afforded by which the exact amount
may be ascertained.

Testimonium: concludes the lease contains signatures and seals of landlord and tenant. The
“usual covenants and conditions” in a lease. An open agreement for a lease either does not
specify any conditions or covenants to be inserted in the lease or specifies only that usual
covenants and conditions shall be set out in the lease. In either case the usual conditions and
covenants will be inserted in the lease since, even if there is no express agreement to that effect,
such agreement is implied, unless expressly excluded. It is settled that the use of the word
“demise” in a lease imports into it a covenant by the lessor for quiet enjoyment, whether the
lease be by deed or by writing without seal, and it seems that, even in the absence of the word
“demise” and merely by virtue of the relation of landlord and tenant, the law implies an
undertaking he the lessor that the lessee shall have the right to enjoy the premises free from
interruption. However, this may be, it is clear that the covenant, if any, implied by the relation
of landlord and tenant, is limited to the acts of the lessor and those claiming under him and
gives no right of action to the tenant if he is ejected by someone limited is a matter of doubt.

State components parts of a lease.

Tenant's obligations
Usual covenants and conditions in the case of a tenant are:
1. To pay the rent reserved
2. To pay the tenant's rates and taxes
3. To keep and deliver up the promises in repair
4. To allow the Landlord to enter and view the state of repair if he is responsible for repairs

To pay rent: the Words “yielding and paying” in the reddendum imply a covenant on the
lessee's part to pay the rent (s). But even in their absence the law imposes an obligation on a
lessee holding at a fixed rent to pay the rent. Besides this, a lessee is under an obligation to pay
the rates and taxes (except landlord's rates and taxes). To pay the rent on time and mode of
payment. Rent becomes due on the first moment of the day appointed for payment, and if it is
not paid by midnight of the same day it becomes in arrears. The payment should be made in
cash, unless any other mode of payment, e.g., by cheque, is authorised by custom, or by the
previous course of dealing between the parties. If a bill of exchange, promissory note, or a bond
is given in payment, the debt arising out of the liability to pay the rent is not thereby necessarily
extinguished or merged, so as to supersede the lessors right to distrain but the taking of such a
bill by the landlord is some evidence of an agreement by him to suspend his right of distress
until the bill matures. Place of payment, the proper place to make the payment is upon the land
or premises demised, but if there is an express covenant to pay the rent, it is the duty of the
tenant to seek the landlord out, wherever he may be, and to make the payment to him. The
payment should be made to the lessor in person, or to his authorised agent, or at least to a
person to whom the tenant has previously paid it, with the approval of the lessor. Even though
the lessor mortgage the premises after the demise, the lessee can nevertheless go on paying the
rent to the lessor until he receives notice from the mortgagee requiring the payment to be made
to him.

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Remedies for rent: the lessor can enforce payment of rent by action or by distress; but he
cannot exercise both these rights concurrently. Arrears of rent only six years' arrears of rent are
recoverable.

To pay rates and taxes: except the landlord's property tax, which, save in exceptional cases,
is charged upon the occupier for the time being but the tenant has a right of deduction from his
rent of which he cannot be deprived, and the extent of which varies for a “short lease”
and a “long lease”. The tenant under a short lease who pays the property tax, may deduct it
from his next payment of rent, save where the rent is less than the net annual value, when he
may only deduct from his next payment an amount equal to tax on the rent. Upon production
of the receipt, the landlord is bound under penalty to allow the deduction, and any agreement
purporting to deprive the tenant of the right of deduction is void. Rent under a “long lease” tax
is deductible by the tenant on the full amount of the rent, irrespective of the amount.

To keep in repair: the obligation to keep in repair is a corollary to the rule that a tenant for
years must not commit waste. A tenant from year to year is liable for that kind of waste known
as voluntary waste, i.e., waste of a destructive kind; but he is only liable to a limited extent for
permissive waste, since he is not bound to keep the premises in repair any further than to keep
them wind and water tight, e.g., if a window is broken, to put in fresh glass or in some other
way prevent the rain from coming in, and he would not be bound to repair the premises if they
were burned down. But, apart from the law of waste, a tenant from year to year impliedly agrees
to use the premises in a tenant-like manner, and to yield them up so as at the end of the tenancy
and, in the case of a farm, to cultivate the land in a husband like manner according to the custom
of the country, whether the land is or is not in a good condition at the commencement of the
tenancy. The liability of tenants for fixed terms of years to repair, in the absence of any
stipulation, has seldom been raised in the Courts; for leases for terms of years nearly always
contain an express covenant on the subject. Tenants for years, however, would not, in the
absence of agreement, be liable to repair the premises if they were destroyed by storm or other
act of God, if the premises are destroyed by accidental fire the tenant seems not to be liable,
but he can make himself liable by contract, as agreements between landlord and tenant. Nor is
the tenant under any obligation to repair war damage.

To keep the premises in repair and in certain cases to permit the lessor to enter and view
the state of repair of the premises.

No implied obligation on lessor to repair: the lessor is under no implied obligation to repair,
or to rebuild if the premises are destroyed by fire, even though he has covenanted for quiet
enjoyment. Nor is there any implied covenant on his part that the premises are habitable, so
that he is not liable for any injury caused to the lessee or the lessee's servants, guests, or
customers, or to any other persons on the premises, by their not being habitable, even if he lets
them in a dangerous condition, though he may be liable as for nuisance to the occupiers.

Implied right to enter and view repairs: apart from statute, the tenant’s obligation to permit
the landlord to enter and view the state of repair exists only when the landlord has covenanted
to do repairs. It arises then because otherwise the landlord would have no right to go on the
premises to make repairs.

Implied covenants run with the land: Covenants which are implied by law run with the land;
but they bind a person only so long as he retains possession of the estate; if he parts with it, he
is not liable for subsequent breaches. It is for this reason, among others, that the implied
covenants are seldomly relied on in practice. It is desirable to consider how far covenants in a

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lease are affected by an assignment of the lease, or of the reversion. A covenant is said to run
with the land when it is enforceable by or against the person for the time being in possession
of the land by virtue of his possession; it is said to run with the reversion when it is enforceable
by or against the person for the time being entitled to the reversion.

Restrictive covenants: must also be remembered that they may in some cases be bound in
equity by covenants entered into by the lessor or some predecessor in title although the
covenants do not run with the land at common law, and that an assignee from him may be
similarly bound for a restrictive, as distinguished from an affirmative covenant having
reference to the land, although it may not run with the land at common law, because not entered
into between landlord and tenant, will nevertheless be binding on the lessee or his assignee if
they have notice of it, or if, in the case of a covenant entered into after 1925, it is registered.
Similarly, a restrictive covenant entered into by the lessee with regard to premises not included
in the lease may in equity bind his assignee, and under lessees also may be bound by restrictive
covenants contained in the lease. Formerly a lessee was deemed to have constructive notice of
the lessor's title, even though having taken his lease under an open contract he was precluded
from investigation of the lessor's title, so that he was bound by any restrictive covenants
appearing on the title which the lessor had entered into with owners of adjoining property so
far as they related to the enjoyment of the property demised. But a lessee who takes a lease
under an open contract made after 1925 is not affected with notice of matters of which he might
have become aware had he stipulated for investigation of the title.

Quiet enjoyment: it is now settled law that the use of the word demise in a lease means a
covenant for quiet enjoyment of the demised premises which the lessor undertakes in favour
of the lessee whether the agreement be by deed or by writing BAYNES V LLYOD 1895.
Hence a landlord and tenant relationship imply an undertaking by the lessor that the lessee shall
have the right to enjoy the premises free from interruption. The tenant is entitled to possess and
use the premises without interference from the landlord or anyone claiming through or under
him. Interference means any physical as in EICHOLZ 1916. The covenant protects the
purchaser from lawful disturbances not to derogate from his grant or diminish the estate that
has been covered by the agreement the lessor must not do anything that would make the
premises unfit for the purpose for which it was let. E.g., in the case of OWEN V GADD 1956
it was held that the landlord had no right to block the entrance of a premise he had let out for
business purposes. That was considered by the court as a derogation from his grant under the
deed constitute sufficient diminishing of the estate that has been carved. The law thus implies
that such deed after being executed for the term of years the landlord cannot do otherwise than
to allow the grant to continue for the number of years it was executed.

Not to repudiate the landlord title: there is an implied covenant in every lease that the lessee
shall not do anything to prejudice the title of the lessor. If this condition is breached the lessor
may re-enter and treat the interest of the lessee as determined. If the lessee deliberately in
writing assert a title in himself adverse to the landlord's title as was held in WARNER V
SIMPSON 1958 because in the recital of a lease the lessee is taking an equitable interest
subject to a valuable consideration.

To keep the demised premises in tenantable repair: the tenant is liable for voluntary waste
acts of positive destruction but liability to repair in the absence of express covenant or
agreement depends upon the nature of tenancy. A weekly tenant is under the obligation to repair
but he must however use the premises in a tenant like manner. E.g., he must amend electric

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lights when fussed unstopped sinks when block by waste. JOHNSON V ZAKARIAH 1957
that the tenant has the duty to keep the demise property.

The implied covenants run with the land, but they also bind a person only so long as he retains
possession of the estates. If he parts with it, he is not liable for subsequent breaches. It is for
this reason among others that the implied covenant is seldomly relied upon in practice. Thus,
the prudent conveyancer will ensure that the implied covenant is expressly provided for in the
lease.

Is beneficial ownership implied covenant on the part of the lessor and lessee in the deed or
transaction that goes to the root of the contract which will enable another party to sue for
damages and treat the contract as at end i.e., repudiate the contract. On a breach of a covenant,
you give notice to the tenant to remedy the breach if not the court can order forfeiture of the
lease. The breach must be capable of being remedied.

Obligations of the Parties in the absence of Express Covenants.

Consideration: is generally stated to consist of the rent reserved, and the covenants and
conditions to be observed and performed by the lessee.

Proviso for re-entry and forfeiture: stipulates that the landlord may re-enter into possession
of the premises and determine the tenancy, if the rate is in arrears for twenty-one days for the
period specified formerly demanded or not, or the tenant is in breach of any of his covenant.
Otherwise, the Landlord cannot refer for any breach of covenant or non-payment of rent for the
continuance of the lease. Where there is no such probation he can re-enter only on distress for
recovery of rent, and damages for breach of covenant or injunction. Forfeiture for non-payment
of rent, breach of any of the covenant, sub-lease, operation of law denies the landlord the title
to the land.

Express Covenant Landlord

• Premises must be fit for habitation
• To give tenant quite enjoyment
• Not to derogate the tenant's lease
• To pay rates and taxes
• To repair
• Rights of re-entry

Express Covenant Tennant

• To pay rent.
• To insure.
• To pay rates and taxes.
• To repair premises.
• To allow landlord to enter and view.
• Not to repudiate owners' title.
• Not to sublet.
• Not to alter premises.
• To give up possession at effluxion of time.
• To hold the premises in a tenantable manner.

Implied Covenant Lessor

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• Lessee must have quite enjoyment in that he must be able to enjoy the property without
interference from any beneficiary or third party
• Re-entry for arrears of rent if and when due or for breach of covenant whenever such
breach occurs.
• Premises must be fit for habitation in that, the drains, sanitary and water appurtenances,
all fixtures, and additions thereto in a good and tenantable manner.
• Not to derogate the tenant's lease.
• To pay rates and taxes and this may include insurance premiums, city rates and property
taxes as well.
• To undertake repairs to the property this could be done either by the lessor or his duly
authorized agent or workmen.
• Rights of re-entry and to take over possession of the demised property at the effluxion
of time.
• Before 1882, good right to convey and this denote a good root of title, one sufficient
enough as to create no doubt as to the preciseness of the estate
• To allow lessor or his duly authorized agent to enter and view the state and condition
of the property and of all repairs upon giving prior notice.
• To allow lessor or his duly authorized agent or workmen to enter and repair.
• To pay charges for utilities such as electricity, water and other bills for services supplied
to the demised property.
• Not to sublet or assign the lease or part with possession of the whole or of any part of
the property without the express written consent and approval of the lessor.
• To pay the reserved rent at the time when it is due and in the eras agreed upon by them.
• Not to repudiate owners' title
• Not to alter the premises or to take addition to it save for those mutually agreed upon.

The usual covenants consist only of re-entry for non-payment. Covenant and conditions are
not:
• covenant not to under let
• covenant not to carry on trade
• covenant to insure
• covenant to rebuild
• Proviso for re-entry for breach of covenant other than non- payment of rent

OPTIONS IN A LEASE
Option to determine the term of the lease: this is sometimes given to the lessor to enable
him to determine the lease before the term expires. It is always wise to make this option
conditional on the lessee observing and performing all the covenants of the lease. When it is
not stated in the lease, who is to have the option, it is the lessee alone who can exercise it for it
is a rule of construction that when words of a grant are doubtful, they must be construed most
strongly in favour of the grantee. The notice to determine the term can only be given by the
legal owner and not by the equitable owner of the term.

Option of renewal: is usually and frequently conferred upon the tenant. In GRIFFITHS &
DICGENS LTD. V GREAT UNIVERSAL STORES 1953 it was held that the rent payable
on renewal was to vary with any rise in the cost of living. An option to continue a Tenancy for
a further term of 3 years at the same rent and containing the like agreements and provisions as
are herein contained, including the present covenants for renewal creates a perpetually

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renewable lease. An option to renew runs with the reversion and with the leasehold interest so
that the successors in title of both Landlord and tenant are bound.

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