All details related to the sale must be expressly stated in the contract. This includes a description of the land intended to be sold, the physical boundaries of the land, references related to easements and covenants intended for the enjoyment of the land, etc. In instances, when the land can be identified by a distinct postal address and clear boundaries, it should be done so. In the case of registered land, the title number is enough, but in other cases, a complete description is required along with a plan of the land.
Plans
Plans should be used to indicate the land intended to be sold when a part of the land is being sold or when the boundaries are not self-evident. But in instances when the land being sold is the entire freehold registered title, the plan is not needed. Irrespective of the type of plan, it should be of sufficient size and scale so as to allow the boundaries and other features of the property to be indentified clearly.
The Land Registry Practice Guide 40 lays down the minimum requirements in a plan, so as to be included in the contract. In instances when the value of the property is too high, or if the transaction includes complex issues, an architect or a surveyor should be instructed to prepare a plan. When there is a doubt about the size and the extent of the property, an inspection should be carried out, and the seller should bear costs for such a survey.
Showing features on the Plan
The plan should have clear markings, with proper references made to all important and relevant features. The land intended to be sold is often marked in red, and land retained by the seller is marked by blue. Other land such as those showing a driveway or those where the owner shall have a right of way is also marked with a distinct colour, or in any other pattern that is distinct. In the case of land where ownership of boundary is agreed upon, it is common for conveyancers to indicate this with a T. The stem of the T should rest on the relevant boundary, while the sides of the T should end sides of the boundary which is responsible for maintenance.
Other features such as routes of services should be marked with dotted or broken lines and every end of the route should be identified with a separate upper case letter. The plans should also include a key that explains all the colours and lines.
Referring to the contract plan
When a plan is referred to in the contract, there should not be any discrepancy between the plan and the verbal description of the property. When such a discrepancy exists, it will be a question of construction whether the verbal description or the plan prevails. The contract may refer to the plan as being ‘for identification purposes only’ or being ‘more particularly delineated on the plan’. Only one of the two phrases is used and using both does not serve any purpose.
‘Identification purposes only’
This phrase indicates that the plan is included for identification purposes only and in the case of a discrepancy, the verbal description of the property would prevail. Needless to say, such a plan cannot be accepted especially in connection with a registered land and shall be rejected by the Land Registry.
‘More particularly delineated’
This phrase should not be used unless the plan is to scale. In the event of a discrepancy between the plan and the verbal description, the plan shall prevail.
However, in common practice, there is hardly a verbal description. The contract is usually worded as ‘all land etched in red on the plan…and forming part of the property’. Thus, the property can be identified by referring to the property, and hence there is no question of discrepancy between verbal description and plan.
Easements and rights benefiting a property
Ideally an investigation of the title should clearly identify the easements and rights attached to the property. This may be included in the particulars of the contract, even though it is not essential. The rights and other easements shall pass to the buyer, on the event of a transfer, irrespective of the fact that it is mentioned in the contract or not. This is in fact the gist of Section 62 of the LPA 1925. But new rights that are granted to the buyer, for instance, right to lay new water pipe, etc. should be clearly mentioned.
Errors in the particulars
Errors in the details of the sale can lead to litigation citing misrepresentation or misdescription. For instance, when a land is mentioned as leasehold instead of freehold, or when the extent of land is wrongly entered, there lies a case for litigation.
Photo courtesy: Elsie esq.
