Indenture, Title Registry, Title Certificate – What do they mean? PDF  | Print |  E-mail


(Article by Korsi Jeff Gbodjor)

READERS of my article on “real property” raised many questions on Indenture, Land Title Registry and Title Certificate. In this article, I shall attempt to provide answers to those questions.

Indenture is a deed. Normally, real property transaction involves the sale of real property under contract and is usually consummated by the delivery of an indenture or deed. An indenture is a written instrument used to convey an interest in real property; thus an indenture or deed conveys legal title.

Acquiring Legal Title:  Alienation is the act of transferring ownership, title or interest in real property from one person to another. The alienation may be voluntary (with the owner’s control and consent of the owner). Voluntary alienation is done by an indenture/deed and by last will and testament. Involuntary alienation is done by descent, escheat, adverse possession and eminent domain.

Descent:  When a person dies without a will, he is said to die intestate, and all the property owned by the deceased pass to the legal descendants known as heirs.

Escheat to the state:  Escheat provides for the government, normally a state government, to take property of an owner who dies intestate and without any known heirs to receive the property. With our extended family system, there is always someone to claim the deceased’s property.

Adverse possession:  When a true owner of a property “sleeps on his rights” and fails to maintain possession and property is seized by another.

Eminent domain:  The power given by the government to take land from an owner through legal process is known as condemnations, as long as the taking is for a public purpose. A fair market price must be paid for any land taken under eminent domain. This power may be excised by the government (or delegate to railroad and utility companies) regardless of whether the owner wants to part with the property, therefore it is a form of involuntary alienation.

In early English history, conveyances of freehold interests in real property did not depend on written instruments. Instead, the parties conducted their business on the land, and the townspeople assembled around them to witness the event, the seller orally announced to the townspeople that he was transferring land to the buyer.

Today, there are two types of notices:

1. Actual notice:  Refers to information a person has actually learned by reading, seeing or hearing.
2. Constructive notice:  Refers to information that has been made public, such as recording or registering the information in public records.

Recording a properly executed and “acknowledged” instrument of conveyance puts the world on notice regarding an owner’s interest in real property. This is done at the lands registry records in the region or the district the real property is located. Record of conveyance should protect both the holder of title and the public from fraud because the true ownership of real property is open to verification by the public. Whether this actually happens in our society is open to debate.

A title search is an examination of all public records in the region or district to determine whether any defects exist in the chain of title records of ownership of the property. Records of conveyances of ownership are examined beginning with the present owner. Then the title is traced backwards to its origin. Other public records are examined to identify wills, judicial proceedings, and other encumbrances that may affect title such as variety of taxes, special assessments and other recorded liens.

Although the grantor in a general warranty indenture/deed warrants that he or she is the owner of the property and that all encumbrances have been disclosed; a deed is not considered satisfactory evidence of title. It contains no proof of the kind of condition of the grantor’s title at the time of conveyance.

The grantee needs some assurance that he or she is actually acquiring ownership and that the title is good and indefeasible. Therefore, obtaining a “title certificate” issued by the proper authority after going through all the steps outlined above should be the right safeguard. The writer of this article is not an attorney. It is advised that a good real estate attorney is consulted when dealing in real property.

 

Credit: Daily Graphic on 17th September, 2010