Conveyancing and

Legal Drafting Head 3 ZIALE

ZIALE Lesson 2 November 2022 Barnaby Bwalya Mulenga Taking Instructions – Matters prior to Contract A lawyer has an obligation to act in the best interests of the client. The following steps are key*. 1. Disclose to the Purchaser/Vendor that there are professional obligations which apply to the sale

ZIALE Lesson 2 and/or purchase. Obtain agreement and instructions to enable you to act in accordance with the terms and spirit of the LAZ Conditions of Sale 2018. 2. Where acting for a Mortgagee as well as for a Purchaser/Vendor, the duties owed to the Mortgagee are no less important than they are for any Purchaser/Vendor, subject to the nature of the instructions. * Law Society Conveyancing Protocol of Wales Taking Instructions – Matters prior to Contract 3. There is potential for a conflict of interest to arise when acting for more than one party: Vendors,

ZIALE Lesson 2 Purchasers and Mortgagees. Careful consideration must be given to this. (Legal Practitioners Rules 2002) Legal Practitioners Practice Rules, 2002 5. (1) Subject to rule-rule (2), a practitioner may act for both a seller and buyer.   (2) Notwithstanding sub-rule (1), a practitioner shall not act for both seller and a buyer-

ZIALE Lesson 2  (a) without the written consent of both parties;   (b) if a conflict of interest exists or arises or is likely to arise; or (c) if the seller is selling or leasing as a builder or developer.   (3) When a practitioner’s firm acts in the sale of property for the seller and also acts for the buyer, the practitioner shall explain to the buyer, before the buyer consents to the arrangement, the implications of a conflict of interest arising.   Legal Practitioners Practice Rules, 2002 (4) A practitioner shall not act for both lender and borrower on the grant of a mortgage of land, if a conflict of interest exists or arises or is likely to arise.   (5) A practitioner who proposes to act for both lender and

ZIALE Lesson 2 borrower on the grant of a mortgage of land, shall inform the lender in writing of the circumstances if:   (a) the practitioner or a member of the practitioner’s immediate family is a borrower; or   (b) the practitioner proposes to act for seller, and lender in the same transaction. Legal Practitioners Practice Rules, 2002 (6) A practitioner who acts for a lender shall inform the borrower in writing of the right to retain an independent practitioner to act on the lender’s behalf in the lender’s transaction and the importance of doing so.  

ZIALE Lesson 2 6. (1) Where a seller instructs a practitioner to deal with more than one prospective buyer, the practitioner with the client’s consent shall immediately disclose the seller’s decision, to the practitioner or other conveyancer acting for each prospective buyer if acting in person.   (2) If the seller refuses to authorize disclosure, in accordance with sub-rule (1), the practitioner shall immediately cease to act.   (3) A practitioner shall notify each prospective buyer each time a decision is taken to deal with any further prospective buyer. Legal Practitioners Practice Rules, 2002    (4) The obligations in this rule apply where to the practitioner’s knowledge a client who is a seller deals, (whether directly or through another practitioner) with another prospective buyer or with that buyer’s practitioner, whether directly or indirectly.

ZIALE Lesson 2   (5) A practitioner shall not act for more than one of the prospective buyers.   (6) A practitioner shall not act for both the seller and one of the prospective buyers, even in a case, which would fall within sub rule (1) of rule 6. Taking Instructions – Matters prior to Contract 4. Endeavour to maintain vigilance to protect and guard against

ZIALE Lesson 2 fraudulent or other illegal behaviour encountered in the conveyancing process. Taking Instructions – Matters prior to Contract 5. Maintain high standards of courtesy and deal with others (including fellow counsel) in a fair and honest manner. 6. Co-operate with others and treat them with respect. 7. Share information with others to assist in the efficient management of each transaction or chain of transactions.

ZIALE Lesson 2 Requirements to provide and share information in each stage of the Process are subject to client confidentiality obligations. If the Purchaser/Vendor consents to the disclosure of information about the transaction, other transactions in the chain or any change in circumstances, this information should be disclosed. The Purchaser/Vendor should not be encouraged to withhold authority to disclose information unless there are exceptional circumstances. Taking Instructions – Matters prior to Contract 8. Respond to all communications promptly or in accordance with agreed timeframes. Where something is to be addressed in a different order or by different means, this should be notified to those who are affected as soon as reasonably possible. Steps required by the LAZ General conditions of Sale

ZIALE Lesson 2 should be carried out as soon as reasonably possible. 9. Deal with transaction materials including correspondence, electronic or otherwise, efficiently and with care and consideration. Where parties agree to deal online, agree arrangements, for example, to acknowledge receipt. Where documents are submitted by post, submit draft documents in duplicate. Taking Instructions – Matters prior to Contract 10. Ensure all incoming data is loaded onto the system and made available to the person dealing within a day of receipt, where any automated data handling or scanning of documents is used.

ZIALE Lesson 2 11. Use the most up-to-date version of forms, formulae as shall be availed to you in this course. 12. Ensure proper arrangements are made for file management (including cover for absent colleagues) during any period of planned or unplanned absence. Contract Defined Before Looking at a conveyancing contract, we first define a contract in general? What effect does it have? Put

ZIALE LESSON 2: CONTRACTS

simply, a contract is an agreement between two or more parties which creates legal rights and obligations that bind those parties. Ingredients of a Contract 1. offer 2. acceptance 3. consideration (takes various Forms) 4. and an intention to create legal relations.

ZIALE LESSON 2: CONTRACTS

These apply even to Conveyancing Transactions. There are various contracts entered into in conveyancing including Licences, Leases, Easements, Mortgages Etc. Ingredients further clarified

• If any one of the ingredients, is missing then

no contract exists (though with the exception

ZIALE LESSON 2: CONTRACTS

of implied consideration in some cases). • Clarity on what exactly is offered? • Who is offering? What is the status of an Agent? Effect of the Statute of Frauds 1677 on conveyancing  The sale of land is governed by the laws and practices of the jurisdiction in which the land is located.  It is a legal requirement in most jurisdictions

ZIALE LESSON 2: CONTRACTS

that contracts for the sale of land be in writing.  An unwritten contract is valid but not enforceable  Validity required: Signed by the Party likely to dispute, written on a paper, Valuable Consideration Investigation of Title The object of investigations of title is to ascertain the ownership and title of a property. The attributes of ownership are , (1)right to have and to get possession ; (2) right to prevent interference by others ; (3) Power of alienation

ZIALE LESSON 2: CONTRACTS

(4) liberty of using the object according to owner's will ; (5)liberty of enjoying the fruits and to avail of the object owned ; (6) liberty of changing its form and even destroying it.

The origin of ownership is in possession: Actual possession implies a right

to retain it until the contrary is proved and to that extent possessor is presumed to be the owner .The concept of ownership gave birth to "title” Possession is still an issue in Zambia: Supreme Court Possession, Civil servant and Zambian Citizen Investigation of Title  Title can be created by act of parties or by operation of law.  Title is a legal term; it means the ownership right to property. Title of property is the prime concern of

ZIALE LESSON 2: CONTRACTS

everyone at the time of purchasing of a property. Every property has a title. Title is the evidence of the right of ownership or the ground of right of ownership. In Zambia Lands and Deeds Registry Act recognises Title as Conclusive Evidence of ownership.  How can you acquire title? Either by transfer or by operation of law Title Investigation Contd…  The reasons for investigating a title may vary from a buyer and seller, but the method remains more or less the same.  Once the seller provides all documents related to the title of the land, it is the job of the Purchaser to ensure that the seller is capable of transferring what he has contracted to sell, and that are no defects that are likely to affect the interest of the buyer. Issues that are not to the satisfaction of the buyer should be raised as queries to the seller.

ZIALE LESSON 2: CONTRACTS

 Modern day conveyancing makes it mandatory for the title to be investigated before the exchange of contract.  Most contracts contain a provision that prevents a Purchaser from putting forth any demand on some or all aspects relating to the title, once the contract is exchanged (Principle of Buyer Beware). But if the title is to be deduced after the exchange (which is a rarity but Common amongst Non- Lawyers), a timetable is included in the contract that provides a schedule for the raising of queries and the time before which they should be responded. Investigating title Contd… Practical tools of how to investigate title. eg 1. Land Register 2. Encumbrances on the property (Eg. A

ZIALE LESSON 2: CONTRACTS

Caveat, Mortgage, Court Order etc) 3. Encumbrances by implication of Law 4. What type of land? State land, Council land, traditional Land, Forest, Communal land Searches as part of the Investigation of Title • There are two types of searches provided for under the lands and deeds Registry Act • 1 - Normal Search where a print out is

ZIALE Lesson 2 given (K41.70) • 2 – Official Certificate of Search which is used as evidence in a court process and acts as a ‘Certificate’ which is conclusive evidence (K166.8 per entry) • Read and understand Section 22 and 23 of the Lands and Deeds Registry Act Investigating Title: Land Land, including benefits derived therefrom, and things attached to the earth, or permanently fastened

ZIALE LESSON 2: CONTRACTS

to anything attached to the earth (Fixtures and Fittings) Need to be clear and confirm what is the subject of the contract Title Investigation Contd… Council title (Plus land record/Occupancy Licence) ,

ZIALE LESSON 2: CONTRACTS

Ministry of Lands Title and Customary title How Investigation fits into bigger picture The investigation of title is a step as towards a Contract of sale. A Contract of sale has three main step preceding the completion of a transaction namely: -

ZIALE LESSON 2: CONTRACTS

(1) Settlement of the terms of the deal between the parties particularly relating to the consideration & the property to be transferred,

(2) Preparation and execution of the agreement &

(3) Investigation of title & the transfer of property.

How Far behind should Investigation Go? 12 years from issuance of title meaning?

ZIALE LESSON 2: CONTRACTS

(Statute of Limitation – Limitation Act 1939) Nemo Dat Rule vs Investigation of Title? • Nemo dat quod non habet, literally meaning "no one gives what he doesn't have" is a legal rule, sometimes called the nemo dat rule, that states that the

ZIALE LESSON 2: CONTRACTS

purchase of a possession from someone who has no ownership right to it also denies the purchaser any ownership title. Any Questions ????? ??

ZIALE Lesson 1