Coveyancing

Carol Messy and Leo Messy will be advised as follows: 1. The open contract that was entered into is a bare agreement and the rights and obligations of them hereinafter referred to as “the Purchaser” and Diego Suarez hereinafter referred to as “the Vendor” is regulated by case law, statute and conventional conveyance practices. 2. The Vendor’s obligation is greater than the Purchaser. As such he must show: a. that he have good marketable title to Anfield b. He is capable of conveying , or he has the power to procure the conveyance of, the whole of the legal and equitable estate of Anfield free from encumbrances c. He is capable of preparing and delivering to us an abstract of title commencing with a good root of title d. He can produce a copy of the deed which is certified by the Registrar General by virtue of Section 19 Registration of Deeds Act Ch. 19:06. Our duty is to compare the abstract of title with the copy of the Deed and examine and identify the Lot being sold to that described under the open contract and in the abstract. 3. The merits of title will be dependent upon the Vendor’s ownership, the right to his property and evidence of that ownership. However, proof of ownership is limited to possession for a period long enough only to make better legal rights improbable, not impossible. Further possession is prima facie evidence of right which becomes conclusive when the rights of all other persons are conclusive. 4. The Vendor told us that he is hoping to settle the court matter soon which will assure that the land will be free from encumbrances. The undertaking to settle the court matter is an undertaking to free the property from such encumbrances. If title is conveyed with such encumbrances we should not be compelled to accept the purchase of the property because it is not that which contractually the Vendor has undertaken to give: Re Atkinson’s and Horsell’s Contract [1911] 5. The abstract of title is a written report on a title search which shows the history of every change of ownership and any claims against the property of Anfield. The abstract of title will be used as a starting point to search title to ascertain whether Anfield has good marketable title. Chaitlal and Others v Chanderlal Ramlal (2003) 62 WIR. 6. The Vendor is required to establish a good title for a minimum period of twenty years (20) since completion of the contract will be after 13th October 2000 as held under Section 5 Conveyancing and Law of Property Act Ch. 56:01. A good title is not a perfect title but one which the Vendor’s action for specific performance the court will enforce against us. The minimum period will apply unless the contract expresses no contrary intention. In an open contract the Vendor and Purchaser are free to stipulate for a shorter or longer period. However there is no evidence to support such contrary intention. The period of twenty years is a minimum period and title could be deduced so far back the statutory period to arrive at a proper root of title. Our responsibility as Purchasers is to investigate to ensure that the Vendor can convey the subject matter of the contract and to ensure that the Vendor have good marketable title. 7. A title that can be sold without the necessity of making special conditions of sale restrictive of the Purchaser’s rights is said to be a good marketable title. For a title to be marketable the Vendor’s estate ownership must be supported by the maximum evidence requireable by Conveyancing practice and the law must suffer no blot to which a prudent purchaser might properly object: Re Atkinson and Horsell’s Contract [1911] 8. The title must commence with a document at least 20 years old, known as the root of title, although it is not absolutely necessary that title should commence with any instrument at all. Further a good root of title must be an instrument of disposition dealing with or proving on the face of it, without the aid of extrinsic evidence, the ownership of the whole legal and equitable estate in the property sold, containing a description by which the property can be identified and showing nothing to cast any doubt on the title of the disposing parties: Williams on Vendor and Purchaser.