When I first agreed to review that document, I thought I was merely extending a minor courtesy—perhaps no more than a cursory look. Little did I know that those ten minutes would spiral into a full-scale review of a conveyance so poorly drafted that it could have led to protracted and costly litigation.
In that moment, I was struck by a troubling truth: many Ghanaians disregard the importance of a well-drafted legal document in securing what may be their most valuable asset. When it comes to land, there is no substitute for professional drafting and review.
What the law requires
A conveyance is a document in writing by which an interest in land is transferred. It also refers to an oral grant under customary law that is duly recorded in accordance with the Land Act, 2020 (Act 1036). Other forms of conveyance include a lease, disclaimer, release, and any other assurance of property or of an interest in property by an instrument, except a will[1]. Sections 33 and 75 of Act 1036 require that a conveyance, whether in a written or electronic form, be drafted by a lawyer.
The requirement for all legal documents (including conveyances) to be drafted by lawyers is not novel. This rule has long existed under the Legal Profession Act, 1960 (Act 32). However, this requirement may not have been widely known, as it is primarily members of the legal profession and law students who are acquainted with it.
Act 32 prohibits non-lawyers from preparing conveyances for payment either directly or indirectly. Persons who contravene this provision commit an offence and are liable to a fine if convicted[2]. Additionally, a person can recover any fees paid to a non-lawyer for drafting a conveyance; and any agreement for payment to a non-lawyer for drafting a conveyance is void and unenforeeable[3].
Purpose behind the law
The inclusion of the requirement for all conveyances to be drafted by lawyers in Act 1036 is commendable. Conveyances drafted by non-lawyers often contain inconsistencies, ambiguities, misrepresentations, and omissions that could precipitate unnecessary litigation. Consequently, the requirement for lawyer-drafted conveyances is likely to significantly reduce the number of land litigation stemming from poor drafting.
Why conveyancing remains a lawyer’s work — not AI or lay drafting
It is not unusual for a non-lawyer to be familiar with aspects of the law related to conveyancing or to use templates and Artificial Intelligence (AI) tools to generate a draft conveyance. However, having some knowledge of the law does not guarantee a well-drafted conveyance. What truly matters is full compliance with all legal, ethical, and procedural requirements.
A conveyance is more than just a document; it is an instrument that transfers rights in land. When drafting a conveyance, it is essential to consider potential litigation risks, capacity issues, and compliance with all relevant legislation.
Only lawyers are accountable under professional rules and negligence principles for errors in such instruments. A non-lawyer or AI may draft a conveyance, but is not liable for any loss suffered as a result of relying on that template
A lawyer-drafted conveyance ensures professional accountability and compliance with legal standards, enhancing the reliability and enforceability of land transactions. Therefore, engaging a lawyer is an essential safeguard to protect land interests and reduce potential fraud.
Why skipping a lawyer costs more
Many potential transferees or purchasers, in an attempt to avoid the cost of legal fees, end up trading that small saving for huge risks. Poorly drafted conveyances may contain ambiguous clauses, undisclosed encumbrances, or an omitted root of title. In certain cases, they may impose conflicting obligations on the transferor or transferee that require interpretation by the courts.
Another setback that underlies poorly drafted conveyances is the likelihood of including unascertainable boundary descriptions and unsuitable site plans. One may argue that this defect can be cured by engaging the services of a land surveyor. What such a person may overlook, however, is that while a surveyor measures boundaries and prepares a site plan, it is the lawyer who converts those measurements into a legally valid description that is ascertainable and enforceable by the courts.
There is also the potential for the execution of the conveyances to be rendered invalid or unenforceable against a party due to omitted signatures or improper witnessing.
Conversely, a competent lawyer conducts due diligence through title searches, encumbrance checks, site verification, drafting express terms and covenants, including anticipatory provisions and risk allocation. Particularly, as part of the due diligence process, a lawyer would assess the nature of the existing interest in the land as well as the residual interest intended to be transferred. This process protects a potential purchaser from acquiring a defective or litigated interest in land.
Although not every lawyer performs due diligence with the same level of competence, I believe the purpose of Sections 33 and 75 of Act 1036 is not to guarantee perfect drafting in all cases but to ensure accountability. This is because a lawyer who drafts a defective conveyance is subject to professional liability and regulatory oversight.
Furthermore, a conveyance not conforming to the requirements of Act 1036 may be refused registration entirely by the Lands Commission[4]. More importantly, a conveyance drafted in contravention of Act 1036 may be rendered unenforceable for non-compliance with the statutory requirements prescribed under the Act.
Recommendations to strengthen implementation
Lands Commission Gatekeeping
The Lands Commission should ensure that conveyances submitted for registration are endorsed by a lawyer or law firm before accepting them for registration. This would add a regulatory check to deter non-lawyer drafting.
Public Awareness and Enforcement
Although Act 1036 has been in force for almost five years, some Ghanaians remain unaware of its provisions. Therefore, there is a need to educate individuals, corporate entities, customary authorities, and local authorities about the legal requirements for conveyancing in Ghana. Additionally, officers of customary land secretariats should be sensitized to reject or flag conveyances that are not drafted by lawyers.
A Call for Amendment and Sanctions
It is recommended that Act 32 be amended to impose stricter sanctions on nonlawyers who draft conveyances. Act 1036 vests the Minister responsible for Lands with the authority to enact Regulations by Legislative Instrument.
It is therefore recommended that such Regulations, when passed, expressly define the conduct where non-lawyers draft conveyances as an offence and prescribe corresponding penalties. Ultimately, compliance with the statutory prohibition on non-lawyers drafting conveyances depends largely on the imposition and enforcement of strict sanctions.
Conclusion: Safeguarding your title for your peace of mind
A conveyance is the principal document in a land transaction. Act 1036 mandates that only a qualified lawyer can prepare a conveyance, ensuring that the conveyance so prepared is valid and enforceable.
The lawyer not only drafts the conveyance but also conducts due diligence, ensuring that the land interest is unencumbered and the transferred title is valid. So, whenever you consider buying, selling, or conveying your interest in land, insist that the conveyance is drafted by a lawyer.
Avoid quick fixes that could come at a greater cost. Protect your investment, your title, and your peace of mind because the cost of professional drafting is a fraction of the cost of decades of litigation.
Dame is an Associate at Landmark Legal. She has experience in the areas of litigation, alternative dispute resolution, corporate and commercial practice. Contact: https://www.linkedin.com/in/dame-awoonor-williams-4b4002a6/
[1] Section 281 of Act 1036
[2] Section 44 of Act 32
[3] Section 45 of Act 32
[4] Section 207 of Act 1036
