A deed is defined as a writing on paper, parchment or vellum, signed, sealed and delivered. Sealing is not necessary for a valid deed so long as one of the other requirements in the subsection are present. It is a solemn and formal contract for which no external consideration is normally required.
Whether a Deed is Really a Deed
A deed must do one of the following:
- Effects the transfer of an interest, right or property;
- Creates an obligation binding on some person or persons; or
- Confirms an act whereby an interest, right or property has already passed.
Instruments which on their face appear to be deeds but which on analysis do not perform one of the functions set out above are not, in fact, deeds.
In R v Morton [1873] LR 2 CCR 22, the accused was charged with forging a deed. He had forged a letter of orders under episcopal seal. He was convicted. On appeal, the conviction was quashed because the letter of orders only certified that a ceremony had taken place and was not a deed.
Delivery
The term ‘delivery’ means an intention of the maker to be bound by the instrument as his or her deed. Despite some or all of the formalities being present, before an instrument becomes a deed the maker must intend that the instrument operate as a deed.
Case Law Describing Deeds
In Re Wilson’s Settlements; Gibbs v Anderson [1972] NZLR 13 at 22-4, Quilliam J considered the indicia aspects of a deed:
- Whether it was signed and attested as a deed;
- Whether it refers to itself as a deed;
- Whether it was drawn up formally by Solicitors;
- Whether the words were merely of agreement or words as used in a deed;
- Essentially, whether it complied with the requirement of assuring an interest, right or property or creating an obligation.
In Rose v Commissioner of Stamps (1979) 22 SASR 84, the court held as follows. An instrument describing itself as a deed was held to be, rather, an agreement. The instrument was simply an agreement for the lending of money, and it did not need to be under seal for enforceability. The only benefit was to extend the limitation time.
Some Other Types of Deed
An indenture is a deed made between two or more parties representing different interests. Example: Sale of a ship.
A deed poll is a deed made by one person or, if made by two or more persons, made by them all with the same intention and representing the same interest. Example: Power of Attorney.
Transactions Which Require a Deed
The following are transactions for which a Deed is required.
- Assurances of land under the general law.
- Leases of general law land.
- Surrenders of leases.
- Legal assignment of a short-term oral lease.
- An express release of a right in land.
- Power of attorney.
Parts of a Deed
The following are the parts of a Deed.
- Commencement: description of the deed.
- Date: note the concept of escrow.
- Parties.
- Recitals: either narrative or introductory.
- Testatum: “Now this deed witnesses”.
- Operative part.
- Testamonium: “Executed by the parties on the above date”.
- Execution & attestation.
Sources:
R. Macdonald, & D. McGill, Drafting Butterworths, Sydney, 1997.
R v Morton [1873] LR 2 CCR 22.
Re Wilson’s Settlements; Gibbs v Anderson [1972] NZLR 13.
Rose v Commissioner of Stamps (1979) 22 SASR 84.
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