Sale of Land

• Pages: 233-244

DOI: 10.4324/9781003186946-12

In Caribbean jurisdictions, as in England, the transfer of land by sale is essentially a

two-stage process: (i) a binding contract of sale is drawn up and signed by both vendor

and purchaser; (ii) ‘completion’ takes place by means of a conveyance of the legal title

by the vendor to the purchaser (in the case of unregistered land), or a transfer of the

title by the appropriate form (in the case of registered land). In unregistered land,

the conveyance of the legal estate has the eect of immediately vesting the legal title

in the purchaser; in registered land, the transfer of title is not final and complete

until it is recorded in the Land Register.1

DEALINGS BEFORE THE CONTRACT IS SIGNED

During the period before the contract of sale is signed, the parties will negotiate

(usually through their attorneys)2 the terms of the agreement, such as the purchase

price, and the precise extent of the property to be sold. The boundaries of the prop-

erty should be established by a qualified surveyor and, if the property comprises a

substantial building, the prospective purchaser may be well advised to employ a civil

engineer to carry out an inspection. If the purchaser requires mortgage financing to

make the purchase, he/she will need to secure a mortgage oer from a bank or other

institutional lender. Also, the purchaser’s attorney will need to peruse the title deeds

and inspect the land itself in order to be satisfied that there are no patent problems

or defects associated with the property, such as lack of access or drainage rights.

However, more intensive and detailed investigation of the title normally occurs after

the signing of the contract, since the parties will normally desire to reach a con-

cluded contract as early as possible, subject to the purchaser’s right to rescind in the

event that the vendor cannot show a ‘good unencumbered title’.

Any correspondence between the parties’ attorneys in the course of negotiating

the terms of the contract will normally be headed with the words ‘Subject to Con-

tract’. These words may be described as a ‘magic formula’ to postpone contractual

liability until a formal document has been drafted by the parties’ attorneys and

signed by both parties.3 Similarly, in a Trinidadian case, Seechan v First Citizens

1 See, eg, s63 of the Registration of Titles Act ( Jamaica); s44 of the Real Property Ordinance,

Ch 56:02 (Trinidad and Tobago); Jaikaran v Binda (1991) 2 TTLR 105, at 120, per Gopeesingh

J; Molyneau v Alphan (1955) 15 Trin LR 71.

2 It is customary for vendor and purchaser to have their own attorneys. It is possible for one

attorney to be instructed by both parties (which may save some expense), but this is highly inad-

visable because of the obvious conflict of interest, and indeed the Jamaican Court of Appeal

has emphasised that it is ‘practically impossible for [an attorney] to do his duty to each client

properly when he tries to act for both vendor and purchaser’, and ‘it may be that [an attorney]

who tries to act for both parties puts himself in such a position that he must be liable to one or

the other, whatever he does’: Palmer v Golding (2000) Court of Appeal, Jamaica, Civ App No 46

of 1998 (unreported), per Downer JA, quoting Dankwerts J in Goody v Baring [1956] 2 All ER

11, at 12, and Scrutton LJ in Moody v Cox [1917] 2 Ch 71, at 91. Asimilar view was expressed

by Douglas CJ in the Barbados High Court in Straker v Maraj (1984) 39 WIR 22, at 25, and by

Richards J in Moore v Callender (2013) High Court, Barbados, No 1774 of 2005.

3 Sherbrooke v Dipple (1980) 41 P& CR 173, CA.

CHAPTER 12

SALE OF LAND