LAW OF IMMOVABLE PROPERTY

LECTURE 9: DUE DILIGENCE IN CONVEYANCING TRANSACTION

F A C U L T Y O F L AW , P E N T E C O S T
U N I V E R S I T Y, A C C R A
L AW Y E R B A R I M A K O F I K O R A N T E N G

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APPROACHES TO LAND TRANSACTIONS

There are two main approaches to land purchase in Ghana. These are
(a) Informal Approach

(b) Formal Approach

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THE INFORMAL APPROACH
This is where there is no prior written agreement between
the vendor and the purchaser and a conveyance is made
transferring the vendor’s interest in the land to the
purchaser immediately the parties orally agree on the
land to be sold, the purchase price to be paid and such
other terms as, date of full payment of the purchase price,
date of delivery of vacant possession of the land etc.
This approach is not always safe especially if the vendor
has not got an unimpeachable title.

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THE INFORMAL APPROACH
The problem with the approach is that if for any reason, the vendor refuses to
convey the property to the purchaser, the purchaser may find it extremely
difficult to get the Court to compel the vendor to convey the land to him
unless he can prove sufficient acts of part-performance pursuant to the oral
agreement to sell and purchase the land. It is prudent to have evidence of
payment, even if the vendor does not provide any.

Even though the informal approach is an unsafe approach to land purchase,

especially the purchase of unregistered land in Ghana, it is the most popular
approach, either out of ignorance of the consequences or because the parties are
in a haste or want to avoid paying legal fees.

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THE FORMAL APPROACH

This is where the purchaser first enters into a written contract for the sale of the
land with the vendor. The advantage of this approach is that it ties the hand of
the vendor and enables the purchaser to perfect title before the completion of
the sale.
The contract envisaged in this approach may be either an open contract or a
formal contract. A contract for the sale of land is an open contract if it contains
only the names of the parties, the designation of the land to be sold and the price to
be paid and leaves all other terms of the agreement to be implied by law.

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THE FORMAL APPROACH

On the other hand, a formal contract for the sale of land contains, in addition to
the contents of an open contract for the sale of land all the terms the parties
want to govern their transaction. A conveyancing transaction can be divided
into the following parts or stages:
a) Pre-contract – Enquiries and Searches
b) Exchange of contracts
c) Pre-completion
d) Completion
e) Post-completion

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DOCTRINE OF CAVEAT EMPTOR AND CAVEAT
VENDITOR IN LAND TRANSACTIONS
Caveat emptor is a Latin expression which signifies ‘‘let the buyer be aware’’
It is a deep rooted rule which is applied to determine questions identified with products, administrations and
property. It is doctrine that the buyer of goods or property must utilise his insight and make an
educated and cautious buy.
The court in Egbeyemi v. G.B. Ollivant & Co., Ltd. (1939) 5 W.A.C.A. 147 painstakingly advised
purchasers of property to do all the necessary checks before purchasing a property. The court held:
‘‘While sympathising with the respondent who has lost his money and got nothing for it, I think it
cannot be too often pointed out that a purchaser of real property, without a covenant for
title, has, in the absence of fraud, no remedy once he has paid the money over. It is
otherwise if he has not actually parted with the money. It is up to a purchaser whether
by private treaty or at auction to satisfy himself as to the right, title and interest" he is
buying, and if he buys without doing so he cannot complain if he is ousted by a third
party proving a better title. This is the doctrine of Caveat Emptor which was applied in
Owo v. Kasumu 11 N.L.R. p.116 and in my opinion it is equally applicable to the
present case.

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DOCTRINE OF CAVEAT EMPTOR

Again, IN DAVIES v. RANDALL AND ANOTHER [1964] GLR 671-681, KORANTENG-

ADDOW J IN THE HIGH COURT, SEKONDI stated ‘‘Rather it is the principle of caveat
emptor that is applicable. The purchaser had to investigate the genuineness of the title he
intended to purchase.’’

The two cases can be said to be for the proposition

that, a purchaser ought to be ultra careful in
buying a property or anything. He must examine
the documents and other requisite information
before parting his hard-earned investment.

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CAVEAT VENDITOR
The caveat emptor doctrine does not however mean that sellers have no responsibility to
engage in the right conduct. Indeed, there are damages to vendors who engage in
criminality, relative to land sale.
Section 72 of the Lands Act, 2020 is on Damages and penalty for fraudulent concealment.
(READ THE ENTIRE PROVISION)
………………………………………………………..
I will however hasten to add that, in spite of the caveat venditor doctrine which may
eventually come in aid to the purchaser who has been defrauded, it is prudent for the
purchaser to stick to the caveat emptor doctrine, for we know how difficult or
impossible it is for monies paid in land transactions to be retrieved after fraud has
been uncovered.

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PRE-CONTRACT STAGE - ENQUIRIES AND SEARCHES

DUE DILIGENCE IN LAND TRANSACTIONS

Due diligence is the investigation or reasonable care or search
needed before entering into a business or buying thing of value.
It is usually undertaken by a party as part of the preliminary
steps in most significant commercial transactions.
Due diligence is required in land transaction because land fraud is
prevalent in conveyancing in Ghana. You must be diligent so that
you are not duped of your money. You must cautiously investigate
the title of the vendor and ascertain their identity.

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FRAUD IN LAND TRANSACTIONS

‘‘One of the banes of our current society is the frequency with which vendors
of land, motivated by greed and venality, purport to sell the same property
over and over again to multiple purchasers. Frequently, it is only the vendor
who comes out smiling, having collected his moneys from his victims.
Sometimes, as in this case, such a vendor, with his loot in hand, vanishes
from the scene leaving his victims to spend vast amounts of valuable time
and money fighting over the property. This menace has reached such
proportions that there are numerous locations in our metropolitan areas
where purchasers feel compelled to resort to self-help in various forms,
including the unlawful employment of armed personnel, to guard their land
developments against competing purchasers.’’( JUDGMENT AKUFFO
JSC, Amuzu v Oklikah [1998-99] SCGLR 141)

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FRAUDULENT SALES
IN RICHARD KWABENA ASIAMAH V. REPUBLIC (2020) JELR
92044 (SC) the issue of conveyancing fraud came to the fore. In this
case, the facts as borne out by the charge sheet and the undisputed
evidence from the trial are that, one Leticia Acquah, the first accused
person who was a senior officer at the Lands Commission informed
the complainant, Mr. Ernest Ofori Sarpong, that there was a parcel of
land for sale at Airport Residential Area and she had a power of
attorney to sell the land on behalf of the owner. It however turned out
that she had no such power of attorney. In this case, the records of the
Lands Commission were momentarily changed by the Land
Commission officials to support the fake vendor.

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FRAUDULENT SALES
IN AMUZU v OKLIKAH [1997-98] 1 GLR 89, where the vendor sold the same piece
of land to two purchasers, with the second purchaser knowing the existence of the
first purchase but going ahead to register his interest first, the Supreme Court
invalidated the registration, calling it fraudulent. The apex court maintained that the
Land Registry Act, 1962 (Act 122) did not abolish the equitable doctrines of notice
and fraud and neither had it conferred on a registered instrument a state-guaranteed
title. Besides, since equity would not permit a statute to be used as an instrument of
fraud or inequitable conduct, section 24(12) of Act 122 should not be interpreted in a
way that would facilitate fraud in the acquisition and sale of lands. Accordingly, a
later executed instrument could only obtain priority over an earlier one by registration
under section 24(1) of Act 122 if the later instrument was obtained without fraud and
without notice of the earlier unregistered instrument. Thus registration did not create
an absolute title.

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FRAUDULENT SALES
Accordingly, in the instant case, the respondent’s later instrument,
exhibit B, could not take priority over the appellant’s earlier
instrument, exhibit A, by its registration under section 24(1) of Act
122 because since the respondent had actual notice of the
appellant’s purchase of the disputed property, he would be held to
have had constructive notice of and to have been bound by the
contract of sale between the appellant and the vendor, and the terms
of the contract including equities which under the contract the
appellant had against the vendor. Accordingly, the judgments of the
High Court and the Court of Appeal would be set aside. (AMUZU v
OKLIKAH, supra)

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The decisions in Amuzu v Oklikah and Brown v Quarshigah have been affirmed in
section 124( Priority of registered interest) of the Lands Act which stipulates:

Rights derived from instruments recorded in the land

register shall have priority according to the order in
which the instruments were presented to the Registry
irrespective of the dates of the instruments and
although the entry in the land register may have been
delayed.
(2) Subsection (1) does not apply where there is fraud,
notice or mistake.

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PRE-CONTRACT STAGE

Before the formation of the conveyancing

contract, a prospective buyer should be
able to conduct the following enquiries
and searches in order to be sure that he is
buying a litigation free land, free of any
encumbrance.

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1. VERIFY THE IDENTITY OF VENDOR

There are plethora of cases where fraudsters pose as owners of land or as

having the power of attorney to sell a land. Some of them succeed in getting
the better of the unsuspecting public. (Richard Kwabena Asiamah V.
Republic, supra). It is therefore imperative for a prospective buyer to verify
the true identity of the vendor. You do this to be sure that the seller is who
he claims to be. In verifying the identity of the vendor, any state issued
identification card should be requested to ascertain the identity of the
vendor.
These ID cards could be passport, driving licence or the Ecowas Card
(commonly called the Ghana Card).
It is also to be pointed out that ID cards can also be forged so the prospective
buyer must be very certain that he is dealing with an authentic ID card. You
then juxtapose the name on the authentic ID card with the name on the land
document.

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THE VENDOR’S DUTY TO PROVE TITLE

The vendor must show good title to the

property. The vendor is under
obligation to prove his ownership in
the property. If he has power of
attorney too, he should be able to
prove that he has been duly
authorised to sell the property.

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THE VENDOR’S DUTY TO PROVE TITLE

If the land is a registered one, a prospective vendor

can show his title by simply producing the land
certificate, a search report from Lands
Commission with an attached site plan
indicating the record of previous registration of
deeds and judgments.
If it is an unregistered land, an abstract of title is
produced.

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DUE DILIGENCE IN BUYING FAMILY PROPERTY
BEFORE BUYING A SPOUSAL PROPERTY PAY HEED TO SECTION 47 of ACT
1036 which stipulates thus;
1. In the absence of a written agreement to the contrary by the spouses in a marriage, a
spouse shall not, in respect of land, right or interest in land acquired for valuable
consideration during marriage,
(a) sell, exchange, transfer, mortgage or lease the land, right or interest in the land,
(b) enter into a contract for the sale, exchange, transfer, mortgage or lease of the land,
right or interest in the land,
(c) give away the land, right or interest in the land inter vivos, or
(d) enter into any other transaction in relation to the land, right or interest in the land
without the written consent of the other spouse, which consent shall not be unreasonably
withheld.

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DUE DILIGENCE IN BUYING SPOUSAL PROPERTY

In JUDGE AKUA KUENYEHIA VRS NDK FINANCIAL SERVICES

LTD 2014, SUIT NO. BDC 43/12, the court invalidated a transaction
between the plaintiff’s husband and the financial company because the wife
argued that as a wife who had a share in the spousal property, she knew
nothing about the transaction between her husband and the company and
therefore the house cannot be sold. The court upheld her relief.
A contrary decision was arrived at in the case of ERIC ANSONG
PLAINTIFF/RESPONDENT VRS MR. ALBERT GORMAN
- DEFENDANTS/APPELLANTS MRS. GORMAN
(2011) CIVIL APPEAL J4/37/201130TH by the Supreme Court. In this
case, having entered into a valid contract with the plaintiff/respondent for
the sale of the spousal property, the wife then wanted to rescind the
transaction, contending that she had no idea about he sale. The court would
have none of that.

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DUE DILIGENCE IN BUYING SPOUSAL PROPERTY
The court rejected her contention, maintaining that
‘‘In my humble opinion, since the 2nd Defendant knew all along about the
transaction that went on at the 18th February 2007 meeting and did not object to
the transactions, she cannot now be heard to say that she did not agree to the
contract of sale. As the trial judge rightly established in his judgment, the wife
was privy to the transaction that took place in the home of the plaintiff, and did
not object to the transaction. She had an obligation to object to the sale at the
time that Nana Owusu, DW2, asked all the people present if anyone had views
to express on the proposed contract of sale. 2nd Defendant who remained quiet
and raised no objection and thus induced plaintiff to go through the sale cannot
now be heard to say that she objected to the contract of sale.’’ (ERIC ANSONG
PLAINTIFF/RESPONDENT VRS MR. ALBERT GORMAN
- DEFENDANTS/APPELLANTS MRS. GORMAN (2011)

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DUE DILIGENCE IN BUYING SPOUSAL PROPERTY
The learned trial Judge captured this part of the matter in the following words in the judgment as
follows:-
“So clearly the 2nd defendant, wife of 1st defendant, saw and understood all that went on at that
meeting of the 18th of February, 2007. It was that she kept quiet and when they got home
before she decided to object. I think I have sufficient evidence to find that the 2nd defendant
knew all along about the property put on sale and the sale to the plaintiff. I do not see the
evidence concluding anything else that that she agree, consented to the husband selling their
property and that is exactly what the husband sought out to do. I will say that she authorised
the husband to transact the sale of their property and that is what the husband did. Indeed
there is evidence on record that the Defendants put up a notice on their house offering it for
sale to the general public. Secondly, the 1st Defendant himself testified that because they
were in hard times, they told a few friends that they wanted to sell their house. All these
meant that both couple, 1st and 2nd Defendants were aware of the sale of the house.” ERIC
ANSONG PLAINTIFF/RESPONDENT VRS MR. ALBERT GORMAN
- DEFENDANTS/APPELLANTS MRS. GORMAN (2011)

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DUE DILIGENCE IN BUYING SPOUSAL PROPERTY

The aforementioned therefore means if indeed MRS GORMAN had no

idea about the transaction, the husband could not have sold the
spousal property and Ansong would have lost the transaction.
Thankfully, now there is a statutory blessing to these two judicial
decisions making it imperative for a prospective purchaser to
investigate, find out if the couple have both consented to sell the
property. If this due diligence is not done, the seemingly harsh but
fair outcome in Kuenyehia may result again.
Your must religiously ask ‘DOES THE WIFE/HUSBAND CONSENT
TO THIS SPOUSAL PROPERTY I AM BUYING?’

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ABSTRACT OF TITLE

An abstract of title is a summary of all the instruments, document, facts and events which,
together, show that the vendor has title. An abstract of title is said to be perfect when
it consists of a connected summary of a series of instruments, wills and other
documents, births, marriages and deaths and other material events, within the
statutory period of commencement of title, which show that the vendor is able to
convey the property to be sold. An abstract of title must begin with a good title
known as the root of title.
Abstracts of all instruments, wills and other documents, facts and events after the root of
title must be given in chronological sequence, so as to show how the title has
devolved from the root of title to the vendor.
The vendor’s solicitor must check the abstract of title that the title has been deduced from
the correct root of title, that all relevant deeds have been correctly stamped and there
are no broken links in the chain of ownership.

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ABSTRACT OF TITLE
In JOSEPH v. BOAKYE [1977] 2 GLR 392-402, the COURT OF
APPEAL held that it seemed clear that though in ordinary
conveyancing practice a separate document specifically designated
abstract of title was usually delivered by the vendor or on his behalf
to the purchaser, the law did not lay down that it should take any
particular form. What was of importance was that what was
proffered as an abstract must be a statement of the instruments and
events by which the vendor claimed to be entitled to the property.
In the present case, notwithstanding its form, the draft deed of
assignment was an abstract of title.

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THE LEGAL IMPLICATION OF ABSTRACT OF TITLE
The question which naturally suggests itself is, what is an abstract of title as used in this
branch of the law? It is, "A chronological statement of the instruments and events
under which a person is entitled to property. Every contract for the sale of land
implies the right to an abstract unless such right is expressly excluded." (See Earl
Jowitt, The Dictionary of English Law at p. 16.) In Gibson's Conveyancing (20th ed.)
at p. 162 the author conceives the vendor's duty and what is comprehended by the
term "abstract of title" in these words:
"On a sale of land the vendor is bound, unless otherwise agreed, to prove his title. For this
purpose, he must deliver to the purchaser an abstract of his title; i.e. an epitome of the
documents and facts which constitute his title. Unless the contract otherwise
provides, the abstract must show a perfect title, i.e., it must show that the vendor can
either himself convey, or compel some other person or persons to convey, to the
purchaser the legal estate and the equitable interest in the property sold, free from
encumbrances. (JOSEPH v. BOAKYE, supra)

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EXAMPLE OF ABSTRACT OF TITLE
1. By a Deed of Conveyance dated the 15th day of June 1944 and made between ABIGAIL
MENSAH, as vendor of the one part and KWADJO BOAKYE as Purchaser of the other part,
ALL THAT PIECE AND PARCEL OF LAND with building thereon known as House No. K44/2
Dadeban Avenue, Haatso-Accra and described in the schedule hereto (hereafter referred to as
“the Property”) was conveyed to the said KWADJO BOAKYE forever.

2. The said KWADJO BOAKYE died on the 15th day of April , 1961 seised absolutely in possession
of the Property which was devised to his children FRANK ABOAGYE subject to a life interest to
NANA ABOAGYE.

3. The said FRANK ABOAGYE died on the 11th day of February, 1985 intestate as to the Property
and Letters of Administration to his estate were granted to NANA ABOAGYE on the 22nd day
of JUNE, 1992 by the High Court of Justice-Accra.

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EXAMPLE OF ABSTRACT OF TITLE
4. By a Deed of Conveyance dated 26th day of January, 1994 stamped
AR/ GB/988/94 and or LVB 8957/94 and registered as Land
Registry No. 2502/1994 and made between NANA ABOAGYE (as
beneficial owner of a life interest in the property herein and as the
legal personal representative of the said FRANK ABOAGYE) as
Vendor of the one part and KWAME ADINKRA ADDO as
Purchaser of the Property was conveyed to the said KWAME
ADINKRA forever.
5. The Vendor herein has agreed to convey and to grant to the
Purchaser herein the Property absolutely and or forever.

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EVALUATE DOCUMENTS OF OWNERSHIP

The instrument is the document granting title to the vendor.

It could be a conveyance, lease, assignment or sublease.

As land is immovable, a major way to determine ownership

is evaluating the title documents. The site plan describes
the land and provides the measurements and locality,
among other things. A site plan is enclosed in most
instruments. This site plan should be consistent with the
description of the land in the instrument.

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EVALUATE DOCUMENTS OF OWNERSHIP

Where the property to be sold was inherited,

the vendor must show the will, probates,
letters of administration and
vesting assents. (What is vesting assent?)
The purchaser can then inspect these at the
appropriate for the next action.

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EVALUATE DOCUMENTS OF OWNERSHIP

IT WOULD BE erroneous to assume that every land acquisition is 99

years. In most assignments, the residue is not indicated so one has
to call for the headlease. Some assignments
have 10-20 years as the residue and the naive prospective buyer happily
acquires it believing it’s a long term lease.

A non citizen should also know that he can only get 50 years lease.
Pithily put, the buyer must know whether it is a lease, sublease or
assignment that he is contracting to buy.

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SEARCH AT THE LANDS COMMISSION, TOWN AND COUNTRY
PLANNING, COLLATERAL REGISTRY ETC

These government agencies have

records in relation to land transactions
and ownership. It is prudent for the
purchaser to conduct searches at these
places as they can show whether or
not the land is encumbered.

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CONDUCT SEARCH AT THE LANDS COMMISSION, TOWN AND COUNTRY
PLANNING, COLLATERAL REGISTRY ETC

Town and Country Planning offices have records to show

areas that have been marked for roads, a markets,
cemetery or for electrification purposes. If such places are
sold to you, as residential area, then you cannot register
that property.
The Collateral Registry of the Bank of Ghana and the Land
Registration Division have proper records of mortgages
and discharges of same. It is a mark of practical wisdom
to find if the property has not been mortgaged. If the
property has been mortgaged, then it is encumbered.

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FIELD VISIT - LOCUS IN QUO

The purchaser must visit the site to see what is or who is on the land. This inspection is
key so you can know if the vendor is really the owner of the place.
You want to determine at this stage that there is no overriding interests in the said
property.
Your visit will show if the land is water-locked, hilly, or a valley. It could be an arid
land although it is intended for a farm. As there is no uniform measurement for a
plot of land, one could be surprised at what a vendor considers as a plot of land.
Aside the physical observation of the land and area, it will be prudent to talk to occupants
of the land or persons occupying neighbouring lands. In most situations, these people
have information on the ownership and problems affecting that land, e.g. litigation.

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FIELD VISIT - LOCUS IN QUO

In BOATENG v. DWINFUOR [1979] 360-371, the COURT OF

APPEAL, held that the general principle of equity was that a
purchaser was deemed to have notice of all that a reasonably
prudent purchaser would have discovered. Thus, where the
purchaser had actual notice that the property was in some way
encumbered, she would be held to have had constructive notice of
all that she would have discovered if she had investigated the
encumbrance. In the instant case D admitted in evidence
knowledge that B was living in the disputed house as tenant at the
time she bought it; she would therefore be deemed to have had
constructive notice of and to have been bound by B's tenancy and its
terms, including equities which as a tenant, he had against A.

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FIELD VISIT - LOCUS IN QUO

In ADU-SARKODIE v. KARAM & SONS LTD. [1975] 1

GLR 411-414, the court held that the purchaser of a
house had from the fact of the tenant's occupation notice
of the tenant's interest and he took the premises subject
to the rights of the tenants. In the present case, as the
plaintiff was aware of the defendants' occupation of the
house but failed to inquire of the nature of the
defendants' interest, he was deemed to have had notice
of the defendants' rights.

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FIELD VISIT - LOCUS IN QUO

INDICIAL OF POSSESSION
1. Building a wall
2. Planting trees –coconut, mango
3. Fencing the land
4. Placing blocks/sand on the land
When you visit the land and you see the above, you must
interrogate further to ascertain if the vendor owns the
above too,

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FIELD VISIT - LOCUS IN QUO

In TWIFO OIL PLANTATION PROJECT LIMITED v AYISI

AND OTHERS [1982-83] the court held that Possession in law
meant two things: (a) effective physical control or occupation
evidenced by some outward act sometimes called de facto
possession or detention and was always a question of fact, and (b)
legal possession, i.e. possession recognised and protected by law
and which was characterised by animus possidendi together with
that amount of occupation or control of the entire subject-matter of
which it was practically capable and which was ordinarily
sufficient for practical purposes to exclude strangers from
interference. (SAME HOLDING IN BROWN V
QUARSHIGAH, 2004)

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GOING INTO OCCUPATION

Building a wall, constructing a structure and

putting heaps of sand or gravels on the land are
acts of occupation and a sure way of provoking
attention on the land. In most cases, where there
are adverse claimants, acts of occupation can
result in land guard intimidation, harassment and
litigation.

40
BACKGROUND CHECKS OF PROSPECTIVE TENANTS

Although most of the checks and enquiries are performed

on the vendor, in some rare cases, background checks of
prospective tenants are done. This is to ensure that the
property is not wasted or the tenant does not create a
nuisance to the landlord and neighbours. Furthermore, in
some situations, background checks are conducted on
the tenants for security reasons. (ADU-SARKODIE v.
KARAM & SONS LTD. And BOATENG v.
DWINFUOR supra)

41
NEGOTIATIONS

Based on the search results and answers

to the requisitions raised, the
purchaser can negotiate for an
abatement of the purchase price due
to some defects discovered at this
stage.

42
GOOD TITLE

Section 64. (1) Good title is derived from

(a) an enactment;
(b) a grant, vesting order or conveyance from the State;
(c) a final judgment of a court of competent jurisdiction; or
(d) a grant, acquisition under customary law, conveyance,
assignment or mortgage which is at least thirty years old and
establishes that a person is entitled to convey an interest in the land.

43
REQUISITIONS ON TITLE

After the purchaser’s solicitor has examined the

title, any doubt or objection to the title should be
raised with the vendor’s solicitor by means of a
written enquiry. This will be more than just a
question about an alleged defect; it will also
require the vendor to remove or clarify the
alleged defect from the title.

44
TIME FOR RAISING REQUISITIONS

(a) A defect going to the root of title, as if the vendor has broken or has
no means of performing the contract there will be fundamental
objection. In Want v Stallibrass (1873) LR Ex 175, the purchaser, out
of time objected that the seller/trustees had no power of sale. The Court
upheld this as a requisition going to the root of the title.
(b) A defect not revealed in the abstract, e.g. a defect which the
purchaser discovers through land charge searches.
(c) Defects which the vendor can remove independently of the
concurrence of another.

45
VENDOR’S REPLIES

The vendor must reply written requisitions within a

reasonable time. The purchaser may make time
of the essence for an unanswered requisition by
serving a notice on the vendor requiring an
answer by a specified date. In a formal contract
the general conditions will specify the time limit
for the vendor to reply to the requisitions.

46
EXCHANGE OF CONTRACTS

The vendor’s solicitor’s duty is to prepare a draft contract after being satisfied of
the results of the searches and enquiries. Before he can do this he will need to
obtain the title deeds from the vendor. The contract should contain:
a) a description of the property
b) a statement whether the title is freehold or leasehold
c) details of anything affecting or benefiting the property e.g. easements or
covenants
d) the condition on which the property is to be sold
If the title is registered, the vendor’s solicitor will apply to the Land Registration
Division of Lands Commission for copies of the entries on the registration. The
copies of the draft contract are forwarded to the purchaser’s solicitor for approval
together with evidence of the vendor’s legal title. Once the purchaser’s solicitor
has approved the draft contract he will return a copy to the vendor. Each party
then signs the respective part in readiness for exchange.

47
EXCHANGE OF CONTRACTS

Once contracts have been executed and exchanged a

binding contract is created between the parties and
neither of them can withdraw without being liable to the
other for breach of contract.
The usual method of exchange is to physically exchange
two identical signed
contracts.

48
EXCHANGE OF CONTRACTS

At the time of exchange, the purchaser

usually pays a deposit of a percentage of
the purchase price. If he fails to complete
the purchase, the vendor may be able to
keep this deposit. The parties, when
exchanging contracts will also agree on a
date for completion of the transaction.

49
COMPLETION

Completion traditionally takes place at the vendor’s

solicitor’s office where the balance of the purchase price
is paid by the purchaser/purchaser’s solicitor to the
vendor and the conveyance instrument (conveyance,
lease, sublease, assignment etc.) is executed and
witnessed by at least one person. Each party takes a copy
of the executed instrument and the contract instrument
expires on the date of completion.

50
POST COMPLETION

The purchaser’s solicitor must ensure that the Oath of Proof

and Certificate of Proof attached to the conveyance
instrument are executed and stamped at the High Court
by the Registrar of Lands.
Afterwards, the conveyance instrument is sent to Land
Valuation Division of the Lands Commission where the
stamp duty will be assessed for payment. This is a
requirement for registration. Upon payment for stamp
duty, the instrument will be stamped.

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POST COMPLETION

After that, the stamped instrument is submitted to the Land

Registration Division of Lands Commission together
with forms purchased for first or subsequent
registration for the whole or part of the land when dealing
with registered lands under the Land Title Registration
Act. In dealing with unregistered land, the
conveyance instrument is submitted for registration under
the Land Registry Act.

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END

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