The Conveyancing Transaction: Completion Stage

Introduction:

In a conveyancing transaction, the stage at which an interest in land is transferred from the vendor to the purchaser is known as the completion stage. The interest is transferred through a conveyance. This note will briefly define completion, a conveyance, persons qualified to prepare a conveyance, parties to a conveyance, subject matter of a conveyance, and mode of transfer of interest in land.

Meaning of Completion:

According to Da Rocha and Lodoh in “Ghana Land Law and Conveyancing,” at page 342,

The completion of the sale and purchase consists of the execution of the conveyance by both the vendor and the purchaser;

dating the conveyance;

payment of the balance of the purchase price by the purchaser; handover of title documents by the vendor to the purchaser or the giving of an undertaking by the vendor in lieu thereof;

giving of vacant possession of the property by the vendor to the purchaser unless it has been agreed to sell land which is already in occupation of a tenant, in which case, the purchaser will not obtain vacant possession until the tenancy has expired; and delivery of the conveyance to the purchaser.

Meaning of a Conveyance:

In Section 281 of the Land Act, 2020 (Act 1036), a conveyance is defined as follows:

"conveyance" includes a document in writing by which an interest in land is transferred, an oral grant under customary law that is duly recorded in accordance with this Act, a lease, disclaimer, release and any other assurance of property or of an interest in property by an instrument, except a will;

At the completion stage, the parties execute a conveyance prepared by the purchaser’s solicitor. However, the legal title does not pass unto the purchaser until various statutory requirements, such as registration, are fulfilled.

Person Qualified to Prepare Conveyance:

In Section 33 of Act 1036, it is provided that

A conveyance shall only be prepared by a legal practitioner in terms of the Legal Profession Act, 1960 (Act 32).

Parties to a Conveyance:

In Section 38(1) of Act 1036, it is provided that

In every conveyance of an interest in land, the expressions used to denote the parties to the conveyance shall be deemed to include their heirs, successors, personal representatives and assigns, except insofar as a contrary intention is expressed in the conveyance or appears by necessary implication.

For instance, the expression “Lessee” shall be deemed to include the heirs, successors, personal representatives, and assigns of a purchaser.

In Section 38(3), it is also provided that

In a conveyance for valuable consideration of an interest in land that is jointly acquired during the marriage, the spouses shall be deemed to be parties to the conveyance, unless a contrary intention is expressed in the conveyance.

That is, once spouses jointly acquiring property during the course of marriage, they shall be deemed to be parties to a conveyance.

In Subsection 4, it is provided that

Where contrary to subsection (3) a conveyance is made to only one spouse that spouse shall be presumed to be holding the land or interest in the land in trust for the spouses, unless a contrary intention is expressed in the conveyance.

That is, if property is jointly acquired, but the interest is only conveyed to say, the husband, the husband shall be presumed to be holding the interest in trust for his wife, unless a contrary intention is expressed in the conveyance.

Subject Matter of a Conveyance:

Under Section 39 of Act 1036, various provisions are made on the subject matter of a conveyance.

Per Section 39(1),

Any word used in a conveyance indicating the intention of the person making the transfer to create or dispose of an interest in land is sufficient for that purpose.

Here, the law is simply allowing the parties to use their own words out of which an inference of conveyance can be made (see Adolphonus Tawiah Welbeck (Deceased) Subtituted By: Seth Welbeck V Martin Brew and Joseph Abrah Bamfo [2018] DLHC16352). For instance, technical words such as “grant,” “demise,” “assign,” “convey” need not be used.

Per Section 39(2),

A conveyance passes all interests and rights in the land which the person making the conveyance has power to convey, unless a contrary intention is expressed in the conveyance, or appears by necessary implication.

In drafting a conveyance, it is, therefore important to specify the exact interest that is been conveyed, particularly if there is no intention to convey all the interest of the vendor.

Mode of Transfer of an Interest in Land—Requirement for a Conveyance to be Writing:

In Section 35 of Act 1036, it is provided that

(1) A transfer of an interest in land other than a transfer specified in section 36, shall be in writing and signed by

1. the person making the transfer or by the agent of that person duly authorised in writing; and
2. the person to whom the transfer is made or the agent of that person duly authorised in writing.

(2) A transfer of an interest in land made in a manner other than that provided in this section does not confer an interest on the person to whom the transfer is made.

Since it is by the conveyance instrument that an interest is transferred, this provision in Section 35 relates to the conveyance instrument itself.

However, under Section 36, it is provided that the requirement of writing does not apply to a transfer of an interest in land which takes effect by the following means:

(a) by operation of law;

(b) by operation of the rules of equity relating to the creation or operation of resulting, implied or constructive trusts;

(c) by order of the court;

(d) by will or upon intestacy;

(e) by prescription;

(f) by a lease for a term not exceeding three years, whether or not the lessee is given power to extend the term;

(g) by a licence or profit other than a concession required by an enactment to be in writing;

or

(h) by oral grant under customary law.

Conclusion:

This note discussed the meaning of a conveyance, the parties to a conveyance, the subject matter of a conveyance, and the mode of conveyance. In a subsequent note, we will discuss the steps that must be taken by purchaser in order to give effect to the transfer.