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CONVEYANCING LAW AND PRACTICE

Conveyancing is the area of an Advocate’s business that deals with the alienation of an interest in land from one person to another. 

Convey is the act of alienation of an interest by means of an appropriate instrument or document.

Conveyance is an instrument transferring an interest in land from one person to another.  Examples of conveyances are:

  • Mortgage or Charge
  • Transfer
  • Lease

Relationship between conveyancing and other branches of law

Land Law it is right to say that conveyancing overlaps with land law.  land law gives us the principles that define rights and interests in land and has been referred to as “Law at Rest”.  Conveyancing on the other hand deals with procedure or the practical legal mechanisms by which those rights and interests are transferred from one person to another.  It is “Law in Motion”

Conveyancing law and the law of contract:  interests in land give rise to contractual obligations e.g. a lease, mortgage or charge. 

The law of equity is also relevant to Conveyancing law and practice in so far as equitable rights and remedies are concerned.  The remedies include specific performance, injunctions, rectification and rescission.  If one has made an error in an instrument and that instrument has been registered, in order to rectify the error, rectification is needed to remedy the error. It becomes necessary to have the instrument of rectification.  Specific performance applies where there is a seller who has entered in agreement with a person to sell land to one person and then goes and signs another agreement with another purchaser for more money.  If the first purchaser discovers, he can go to court to seek an order for specific performance, asking the court to compel the seller to transfer the land to the first purchaser under the agreement for sale.

Some understanding of the law of succession is also necessary in dealing with transactions involving personal representatives.  The law operates to make it possible to transfer land (transmission) to the beneficiaries.  Conveyancing tells us what documents we need to draft in order to vest the interests of the deceased to the beneficiaries.

Knowledge of company law is equally important in dealing with companies involved in conveyancing transactions.
SCOPE OF CONVEYANCING:

The scope of conveyancing covers the various procedures for certain land transactions.  It deals with practical issues such as how one negotiates and concludes a lease, mortgage, charge, transfer or other transaction and how the relationship between the parties to the transaction is determined.

Conveyancing therefore deals with the various stages of a transaction.  These include:

  • Preliminaries
  • Investigation of title e.g. searches and examination of documents of title
  • Documentation- this is the legal framing of documents.  It is the art of drafting.
  • Contractual stage – this stage involves negotiation of terms
  • Completion stage  - this is the stage where documentation is complete and what remains is to take the documents for registration.  If it is a transfer for example the seller’s advocate should now give all the documents signed to enable the buyer’s advocates to go and register the documents, the buyer’s advocate should now pay the buyer’s purchase price.

Execution, attestation, stamping and registration of documents.

Conveyancing also involves the construction or interpretation of documents.  For example in a lease keeping the premises in good state of repair may mean painting the house, replace locks and so on.  This is part of the covenant to repair. It is about construing the covenant to repair.

Conveyancing may also involve litigation, e.g. where a transaction fails and parties resort to the court process for determination and enforcement of their rights.

 
 
 

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