CONVEYANCING DECREE, 1973 (NRCD 175)

 

ARRANGEMENT OF SECTIONS

Section

1. Mode of transfer

2. Contracts for transfer

3. Transactions permitted without writing

4. Records of customary transfers

5. Effect of record of customary transfer

6. Administration of recording scheme

7. Failure to record, and unlawful recording

8. Evidence of original writing

9. Implication of intention from writing

10. Definition of transfer

11. Application of this Part

PART II—EFFECT OF CONVEYANCES

12. Parties to a conveyance

13. Subject-matter of conveyance

14. Interest taken by transferee

15. Persons taking who are not parties

16. Effect of extinguishment of reversion

17. Voidable conveyances

18. Unconscionability

19. Conveyance to persons jointly, or to the transferor

20. Agreement with persons jointly, etc.

21. Apportionment of conditions on severance

PART III—COVENANTS

22. Implied covenants by transferor

23. Implied covenants by transferee

24. Persons to take benefit of implied covenant

25. Benefit of covenants relating to land

26. Burden of covenants relating to land

27. Benefit of covenants to run with reversion

28. Burden of covenants to run with reversion

29. Restriction on re-entry and forfeiture

30. Relief against re-entry and forfeiture

31. Covenants to repair

32. Waiver of covenant in a lease

33. Effect of licence granted to lessee

34. No payment to be exacted for consent to assign

PART IV—MISCELLANEOUS

35. Production and safe custody of documents

36. Statutory commencement of title

37. Other statutory conditions of sale

38. Supplemental instruments

39. Giving of notices

40. Execution of conveyances

41. Receipt in conveyance sufficient

42. Rules for conveyancers

43. Model precedents

44. Damages and penalty for fraudulent concealment

45. Interpretation

46. Commencement.

SCHEDULES

First Schedule—Record of Customary Transfer

Second Schedule—Implied Covenants by Transferor

Third Schedule—Implied Covenants by Transferee

Fourth Schedule—Model Precedents.

IN pursuance of the National Redemption Council (Establishment) Proclamation, 1972, this Decree is hereby made:

PART I—MODES OF TRANSFER OF INTERESTS IN LAND

Section 1—Mode of Transfer.

(1) A transfer of an interest in land shall be by a writing signed by the person making the transfer or by his agent duly authorised in writing, unless relieved against the need for such a writing by the provisions of section 3.

(2) A transfer of an interest in land made in a manner other than as provided in this Part shall confer no interest on the transferee.

Section 2—Contracts for Transfer.

No contract for the transfer of an interest in land shall be enforceable unless—

(a) it is evidenced in a writing signed by the person against whom the contract is to be proved or by a person who was authorised to sign on behalf of such person; or

(b) it is relieved against the need for such a writing by the provisions of section 3.

Section 3—Transactions Permitted Without Writing.

(1) Sections 1 and 2 shall not apply to any transfer or contract for the transfer of an interest in land which takes effect—

(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 taking effect in possession 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 to be in writing by section 3 of the Concessions Ordinance (Cap. 136);

(h) by oral grant under customary law.

(2) Sections 1 and 2 shall be subject to the rules of equity including the rules relating to unconscionability, fraud, duress and part-performance.

Section 4—Records of Customary Transfers.

(1) An oral grant of an interest in land under customary law shall be recorded in the form contained in the First Schedule, or as near thereto as circumstances permit, incorporating the essential features of the transaction sought to be effected, signed by the person making the transfer or by his agent lawfully authorised for that purpose, and certified by a registrar having jurisdiction within any part of the area to which the transaction relates.

(2) An adequate plan of the land to which the transfer relates shall, if available, be incorporated in the record referred to in subsection (1).

(3) The registrar shall without delay and without charge prepare three copies of the record referred to in subsection (1).

(4) The registrar shall deliver to the transferor and the transferee copies of the record certified by him, and shall dispose of the third copy as may be provided in regulations made under section 6.

(5) The registrar shall refer to a magistrate for determination any doubt concerning issues arising under this section.

Section 5—Effect of Record of Customary Transfer.

A record of a transfer of an interest in land certified by a  registrar under section 4 shall as between the parties be prima facie evidence of the matters stated therein.

Section 6—Administration of Recording Scheme.

(1) The Chief Justice, after consultation with the Chief Lands Officer, may by legislative instrument make regulations providing generally for the administration of the scheme for recording customary transfers, prescribing the fee (if any) for the supply of copies, and permitting the public to inspect the records of such transfers at reasonable times.

(2) The Chief Justice may by notice published in the Gazette appoint any person to be a registrar of customary land transfers for the purposes of this Part, and shall in such notice specify the area within which such registrar shall exercise his functions:

Provided that until such notice is published the registrar of every District Court shall be deemed to be a registrar of customary land transfers for the purposes of this Part, and shall exercise his functions in relation to the magisterial district to which he is assigned.

(3) The Chief Justice shall appoint an official surveyor for each District Court and such other staff as the business of the District Court requires to provide for the administration of the scheme for recording customary transfers.

(4) Where any transfer relates to land falling within the area of jurisdiction of more than one registrar, the registrar for the area in which the transaction is recorded shall send a copy of the record to the registrars of each of the other areas to which the record relates.

Section 7—Failure to Record, and Unlawful Recording.

(1) An oral grant made under customary law shall be of no effect until it is recorded under section 4.

(2) The District Court shall authorise the registrar to execute a record of transfer where the transferor without lawful excuse refuses at the request of the transferee to execute a record of a transfer to which section 4 applies.

(3) Any transferor who executes a record of a transfer under section 4 without reasonable cause to believe that he has the right to do so shall be guilty of an offence and liable on summary conviction to a fine not exceeding five hundred cedis or to imprisonment not exceeding twelve months or to both.

Section 8—Evidence of Original Writing.

The rules of evidence which provide for the proof of the contents of an original writing by other evidence when the original writing is not available shall apply in the case of writings required by this Part.

Section 9—Implication of Intention from Writing.

The fact that a transfer of an interest in land was made in writing or evidenced in writing shall not by itself give rise to any implication concerning the intention of the parties as to the system of law which they intended to govern the transfer, but it shall be permissible to make any reasonable inference from the contents of any such writing.

Section 10—Definition of Transfer.

For the purposes of this Part, a transfer of an interest in land includes every sale, lease, gift or other creation or disposition of an interest in land.

Section 11—Application of this Part.

Nothing in this Part shall affect any transfer of an interest in land made before the commencement of this Decree.

PART II—EFFECT OF CONVEYANCES

Section 12—Parties to a Conveyance.

(1) 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.

(2) The persons expressed to be parties to a conveyance shall, until the contrary is proved, be presumed to be of full age and capacity at the date thereof.

Section 13—Subject-Matter of Conveyance.

(1) Any word used in a conveyance indicating the intention of the transferor to create or dispose of an interest in land shall be sufficient for that purpose.

(2) Every conveyance shall pass all interests and rights in the land which the transferor has power to convey, unless a contrary intention is expressed in the conveyance, or appears by necessary implication.

(3) A conveyance shall not be construed to convey any title or right which the transferor does not have the power to convey.

Section 14—Interest Taken by Transferee.

(1) A conveyance of an interest in land may operate to pass the possession or right to possession thereof, without actual entry, but subject to all prior rights thereto.

(2) A conveyance of an interest in land to a corporation sole by its corporate designation without words of limitation shall pass to the corporation the whole interest which the transferor had power to convey, unless a contrary intention appears in the conveyance.

(3) A conveyance of an interest in land to two or more persons, except a conveyance in trust, shall create an interest in common and not in joint tenancy, unless it is expressed in such conveyance that the transferees shall take jointly, or as joint tenants, or to them and the survivor of them, or unless it manifestly appears from the tenor of the instrument that it was intended to create an interest in joint tenancy.

Section 15—Persons Taking who are not Parties.

A person may take an interest in land, or the benefit of any condition, right of entry, covenant or agreement over or respecting land, although he may not be named as a party to the conveyance.

Section 16—Effect of Extinguishment of Reversion.

Where a reversion expectant on a lease of land is surrendered or merged, the immediately following reversion shall as against the lessee be deemed the reversion for the purpose of preserving the same incidents and obligations as would have affected the original reversion had there been no surrender or merger thereof.

Section 17—Voidable Conveyances.

(1) Subject to subsection (2), every conveyance of an interest in land made with intent to defraud creditors shall be voidable at the instance of any person thereby prejudiced.

(2) Subsection (1) shall not affect the law of insolvency for the time being in force, and shall not extend to any conveyance of an interest in land where the transferee took the interest in good faith and for valuable consideration.

(3) Every disposition for no consideration of an interest in land made with intent to defraud a subsequent purchaser shall be voidable at the instance of that purchaser:

Provided that no such disposition shall be deemed to have been made with intent to defraud by reason only that a subsequent conveyance for valuable consideration was made.

Section 18—Unconscionability.

The court shall have power to set aside or modify an agreement to convey or a conveyance of an interest in land on the ground of unconscionability where it is satisfied after considering all the circumstances, including the bargaining conduct of the parties, their relative bargaining positions, the value to each party of the agreement reached, and evidence as to the commercial setting, purpose and effect of their agreement, that the transaction is unconscionable.

Section 19—Conveyance to Persons Jointly, or to the Transferor.

(1) An interest in land may be conveyed by a person to himself jointly with another person in the same manner as it may be conveyed by him to another person.

(2) A person may conveyed such property to a third party.

(3) Notwithstanding subsection (3), the court shall have power to set aside a conveyance in order to prevent the commission or continuance of a breach of a fiduciary duty.

Section 20—Agreement with Persons Jointly, Etc.

(1) Any agreement made with two or more persons jointly to pay money or to make a conveyance, or to do any other act, to them, or for their benefit, shall imply an obligation to do the act to or for the benefit of the survivor or survivors of them, and to or for the benefit of any other person to whom the right or obligation devolves, and shall be construed as being also made with each of them.

(2) Subsection (1) applies only so far as contrary intention is not expressed in the agreement, and has effect subject to the provisions contained in the agreement.

(3) Any such agreement, whether express or implied, entered into by a person with himself together with one or more other persons, shall be construed and be capable of being enforced in the same manner as if it had been entered into with the other person or persons alone.

Section 21—Apportionment of Conditions on Severance.

(1) Where the reversionary interest in any land comprised in a lease is severed, or where the term granted by a lease is avoided or ceases in respect of part of the land comprised in the lease, every condition contained in the lease shall be apportioned and shall continue to apply to the severed parts of the reversionary interest as severed.

(2) Every such condition shall apply to the term whereon each severed part is reversionary, or the term in the part of the land as to which the term has not been surrendered, or has not been avoided or has not otherwise ceased, in the same manner as if the land comprised in each severed part, or the land as to which the term remains subsisting, as the case may be, had alone originally been comprised in the lease.

PART III—COVENANTS

Section 22—Implied Cov