Conveyancing and its essentials

CONVEYANCING & ITS ESSENTIALS

CONVEYANCING: It means drafting an instrument whereby intention is expressed to transfer some right or property/land.

Conveyancing

PARTS OF INDENTURE (DEED, DOCUMENT, INSTRUMENT):

Following are the parts of indenture: 

1. Title of the deed: It is the subject matter of deed from where the intention of the scribe(r) is shown. It is the main heading under which all terms and conditions are scribe.

2. Commencement and date: Different deeds are differently scribes according to the nature of the transaction which they affect, for example, “this conveyance”, “this gift deed”, “this agreement”, “this gift deed”, “this mortgage”, “this gift” etc. The date is not part of the deed. A deed takes effect from the date on which it’s delivered. If the date is stated is impossible or unavailable on any calendar, for example, Feb 30, 2001, this does not affect the legitimacy of the deed.

3. Parties: Next comes, the parties to the deed. The parties should in general comprise besides the transferor and the transferee, every person whose consents or concurrence is necessary to make perfect conveyance of the estate (land) or interest contracted to be sold. The most convenient order of the arrangement of parties is to place first the party or parties by whom the property is transferred. Next, any person whose concurrence is requisite or who enters into any covenants is conveyed. The name and description such as caste and complete residential address of all the parties should be set out in full so as to be preventing any difficulty in this subsequent identification.

4. Recitals: Recitals means narration of the facts usually beginning with the word “WHEREAS”. Recitals are of two kinds, namely narrative recitals, which began the facts and instruments necessary to point out the title and relations of the parties to the topic matter of the deed, and introductory recital, which explains the motive and buys of the deed containing them.

5. The operative part or testatum: The next division of the deed consisting of the operative part, i.e., the testatum “now this conveyance/deed witnesses that” and it is hereby agreed and declared as follows or followed by the consideration, the receipt clause, the operative word and also the vendor’s covenants for title.

6. The parcels: It is the operative part that is followed by the description of property/land. This description is technically the parcels and will when practicable be an equivalent as within the earlier title deeds so on prevent any question on the identity of the property as conveyed thereupon described in such earlier deed if, however, due to change within the matter of the property like rebuilding or surrounding the old description proves insufficient to spot the property sold with certainty and new description should be framed while making to the description contained in earlier documents.

7. General word: After mentioning parcels, the general word comes, which profess conveys to the transferor all rights and easements, and other rights appended and appurtenant to the property or at any time enjoyed with it or reputed to make apart thereto. Rights, which are, appended (Easement rights) or appurtenant travel by the conveyances of land to which they are annexed. It might happen that the seller or the transferor was retaining other land belonging to him and adjoining the land sold. Any rights which the seller had been exercising over the land retained for the advantage of the land conveyed could not pass to the transferee as easements because a one could not have an easement over his own land. The General Words in England have been omitted as it is provided by statute that a conveyance of land shall be deemed to incorporate and shall operate to convey with the land/property all the easements.

8. Reservations and Exceptions: Subsequently the next part of deed consists of exceptions & reservations if there is any. Exception means where the seller transfers who are already alive at the time of the grant, as an example, the exception of the mines and minerals. To such an exception there is no illustration an exception of the mines and mineral. To such an exception there is no objection as long as it is not repugnant to the grant. For instance, during a grant of a house and grounds as exception of the grounds would be repugnant to the grant and consequently void. 

    A Reservation is where the transferor reserves to himself something entirely new as an example, an easement over the land/property conveyed. Such reservation shall be expressed for, it will not be implied unless and until there are particular facts to justify it.

9. Habendum: After that next part of the deed is habendum. It implies and signifies the rights within the property/land transferred to the transferee by the transferor, extremely often expressed within the deed/indenture as “To encompass and hold the same” as whatever is narrated on the topic matter of the demised land/property. These words establish the fact that the rights now have hovered in favor of the transferee against the one that for and consideration transfers, sells, or alienate the property with a consideration.

10. Testimonium: It is the last part of the deed which is called testimonium, that implies the attestation of the deed/indenture by witnesses who establishes that the transaction deed takes place in their presence and their evidence/testimony is extremely much relevant in case of any dispute between the parties during the Court of law. Very often the scribe(r) also adopts the role of the witness having attested the deed.