Generally, all transfers of land or of any interest in land are void for purposes of transferring or creating a legal interest unless made by deed – section 77(1) PCL.
Deeds are
required in the following transactions:
11)
Transactions lacking in consideration e.g. deed
of gift.
22)
Conveyance of interest in land, except where
personal representatives of a testator by an assent vest title in land to a beneficiary
e.g. Deed of Lease, Deed of Mortgage. By section
77(1) PCL, conveyances of legal
interest in land are void except where they are made by deed.
33)
Where an attorney is appointed to execute a
deed, the power appointing him must be by deed – Chime v. Chime (2001) 3 NWLR (Pt.
701) 527. In Powell v. London & Provincial bank
(1893) 2 Ch. 555, a company law provides that to transfer a share, a
deed of transfer was required. A holder of shares executed a blank deed in
favour of the Bank which then inserted its name in the blank space. The court
held that the transaction to be invalid
since the Bank itself was not appointed by deed.
44)
Vesting declaration is to confer or bestow on
someone the legal right to power, property, etc made in place of an oath.
55)
Voluntary surrenders is to give up a deed by
free will.
66)
A lease for a term exceeding three years. Such a
lease is required to be under seal. Those not exceeding three years could be
created orally, or simply in writing.
77)
Where a deed is required to be rectified, even
though proceedings for rectification can be commenced.
WHERE IT IS NOT MANDATORY
Section 77(2) of PCL provides for most instances when property
transactions are not required to be by deed. These are:
11)
Assents also described as vesting assent is the
instrument by which personal representative of a deceased person conveys land
to the beneficiary who is entitled to the property upon the grant of a probate
to the personal representatives.
22)
Surrenders by operation of law takes effect by
implication, for example, where a lessee accepts a new lease that is
incompatible with an existing lease. Implied surrenders need not be in writing
to take effect.
33)
A lease or tenancy for a term less than three
years – Okoye v. Nwulu (2001) 11 NWLR (Pt. 724) 362 at 367. In Re Knight
(1882) 21 Ch. D. P. 442 at 458, it
was held that a lease for a period less than three years with a right to
maintain for a further three years was only a demise of years with an option to
renew and as such, it was not required to be under seal. – Hand v. Hall (1877) 2 Ex. D 355.
44)
Receipts not required by law to be under seal
e.g. a receipt endorsed on a mortgage serves as sufficient discharge of the
mortgage.
55)
Vesting orders made by a court to create or
transfer a legal estate in land to a person e.g. where an equitable mortgagee
exercises his power of sale, the court may make an order vesting the land in
the purchaser. Such order is not required to be under seal.
66)
Conveyances taking effect by operation of law.
Under this, transaction need not be under seal; and properties vested in
personal representatives or trustees does not belong to them but is held by
them in trust for the beneficiary.
77)
Disclaimers who refuses or renounces anything.
88)
Transactions covered by the rule in Walsh v. Lonsdale (1882) 21 Ch. D 9. The
rule is that an instrument which is void as a conveyance because it is not a
deed may still operate in equity as an agreement for conveyance. In Opara
v. Dowel Sclumberger (Nig.) Ltd. (2006) All FWLR (Pt. 36) 240 at 253 where the principles of Walsh v. Lonsdale
were affirmed, the Supreme Court held that an agreement for a lease is as good
as a legal lease though the agreement confers only an equitable interest in the
property.
1 comment:
wonderful... thanks a lot
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