The Operative Parts of a Deed

The Operative Parts of a Deed

1. Testatum

This is the beginning of the operative part of a deed. There are two formats drafting Testatum, depending on whether there is a recital or not. They are drafted as:

• TESTATUM (WITHOUT RECITAL): “THIS DEED WITNESSES as follows”
• TESTATUM (WITH RECITAL): “NOW THIS DEED WITNESSES as follows”

Note: where there is a Recital in a deed the testatum must begin with “NOW”

2. Consideration Clause

This states the amount the property is being sold/assigned demised to a purchaser. It can be drafted thus:

“In consideration of the sum of N 1,000,000(One Million Naira) paid to the Assignor by the Assignee”

Note that where there is a balance to be paid by the parties (Assignee), it may be drafted as;

“In consideration of the sum of N 10,000,000(Ten Million Naira) out of which the Assignee has paid (Five million) to the Assignor the (Receipt of which the Assignor hereby Acknowledges) and the balance of (Five million) to be paid on…........ day of …...….  As agreed by the parties”

3. Receipt Clause

This indicates that the vendor acknowledges the receipt of the purchase price. Note the implication for inserting a receipt clause is that;

• It is a Prima facie evidence of payment
• There will be no need to issue a separate receipt.
• It is adequate authority for the purchaser to pay money to the solicitor who produces the deed of conveyance as acting for the vendor.

The receipt clause is usually enclosed in bracket:

 “(Receipt of which the assignor hereby acknowledges)”

4. Capacity Clause or Covenant of title

It determines the capacity the property is transferred. where the Assignor is a Beneficial Owner, the presumption are:

a) Right to convey

b) Freedom from encumbrances

c) Quiet enjoyment

d) Further assurance - I will do everything possible...

e) The lease is valid and subsisting 

f) That all covenants that are to be performed have been performed till date and the rent have been paid.

It is drafted as; “the Assignor as beneficial owner”

5. Words of Grant

No special words are needed to transfer the property: e.g. “Assigns”

• Assignment- ASSIGNS to the Assignee”
• Lease- the Lessor LEASE to the Lessee”
• Mortgage- the Mortgagor hereby mortgage”

 

6. Parcel Clause

This describes the property that is the subject of the transaction, and it is drafted as;

“ALL THAT PARCEL OF LAND Situate at….”

7. *Habendum

This describes the quantity of interest remaining in the property; it is drafted as

“TO HOLD UNTO THE UNEXPIRED”

Sample of the Operative Parts of a Deed

The Sentence format of the Operative part of a deed reads as follows:

“NOW THIS DEED witnesses as follows;

 

In consideration of the sum of …………. paid to the Assignor by the Assignee (In receipt of which the Assignor hereby acknowledges). The Assignor as beneficial owner ASSIGNS to the Assignee ALL THAT PARCEL OF LAND situated at No…… TO HOLD UNTO THE ASSIGNEE for the unexpired residue of the Assignor’s interest” 

If you missed our article explaining the introductory parts of a deed, kindly click here to read up.