Boundaries And Titles: The Legal Angle (2) -By Ebun-Olu Adegboruwa, SAN
Last week, I shared the contents of the paper delivered at the 1st Surveyor-General’s Stakeholders Summit put together by the Office of the Surveyor-General of Lagos State. This is a continuation of the said paper. Permit me to state that lots of questions were asked after the presentation of the paper, one of which was about the delay being experienced by litigants and lawyers in the adjudication of cases in the courts, especially land matters. My response was that we cannot possibly isolate the judiciary from a system that seems to be wobbling from the top. If we succeed in fixing the leadership issues plaguing Nigeria, that solution will trigger down to the judiciary and indeed all other sectors of our national life. Now back to the paper.
Deed of Assignment
A Deed of Assignment is a legal document that transfers the ownership of a property from one party (assignor) to another (assignee). In addition, it transfers interest and title in the real estate property from one party to another, starting from the commencement date stated in the document. It is a very essential document that should be demanded by a purchaser after buying any land. The Deed will usually contain a specific description of the parties, property to be transferred and the amount that the property is being sold. It will also contain a narration of the radical title, which is the foundation of the claim to ownership by the assignor.
Through the Land Use Act, both the State and the Federal Governments have the right to acquire land for overriding public interest/purpose. However, by the provisions of section 44 of the 1999 Constitution (as amended), issuance of notice and payment of compensation are mandatory requirements for valid acquisition of land in Nigeria. Be that as it may, where the government acquires land, the process by which the government excises a portion of the land and releases it to the original owners of the land as a form of compensation for the acquired land is known as Excision. Excision is usually properly spelled out in an official gazette of the government and this will no doubt form a good document for one to transfer land to a third party. By accepting the excised portion of the land, the previous owner acknowledges the acquisition as valid and ceases to assert his claim of ownership.
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Valid and subsisting judgments of Court
Unknown to many, a valid and registered judgment of court in respect to land (particularly where the government is a party) is a valid means of land title. In fact, I consider it as one of the best forms of title in that unlike a Certificate of Occupancy or a Letter of Allocation, it cannot be revoked by the government but only through the order of a superior court by way of appeal. A valid and subsisting judgment is registerable and as such, a valid means of transferring title to a person.
Governor’s consent is another title document in respect to land. Where a holder of a certificate of occupancy decides to transfer his unexpired lease of 99 years to another person, the consent of the government which issued the Certificate of Occupancy must be sought and obtained before that transaction can be valid. The approval given by the Governor to transfer the land to another is called Governor’s consent. This process continues every time the property is being transferred to a new assignee. It must be noted that the consent of the Governor is not a mandatory requirement for the valid transfer of land and some consider this as a way of generating revenue for the government.
Grant of Probate and Letters of Administration
Where the original owner of a property has died, a fresh title must be obtained from the probate section of the High Court, which can either be a grant of probate or letter of administration. Such a document is one of the important land documents in Nigeria as it gives the executors or administrators of the deceased person the power to legally transfer his or her property to a third party. The problem with this kind of title is the usual acrimony between the beneficiaries of the estate.
Letter of Allocation
The Government may and can decide to allocate a portion of land to an individual or company via Letter of Allocation subject to payment of necessary fees by the individual or company. It is sometimes construed as purchase of land from the State or Federal Government.
STAGES OF ACQUIRING AND PERFECTING TITLE TO LAND
Pre-contract Inquire stage entails:
· The prospective buyer interfacing with agents of the property.
· Visiting the property for the purpose of inspecting the property.
· Engaging in preliminary discussions with the owner/vendor of the said property.
· Exchange of offer letter to the prospective purchaser of the land.
· Disclosure of latent defects by the vendor/owner of the property.
Investigation of Title
The investigation of title stage is the stage where:
· The prospective purchaser collects copies of the title documents or their details from the vendor in order to investigate the title at the Lands Registry or within the community/family circles. This process is termed as due diligence by a prospective buyer of land.
· The prospective purchaser makes enquiries as to whether the land is a subject matter of a pending litigation or public acquisition or government owned properties or whether it has been excised to the vendor. This process has however been simplified since 2015 in Lagos State with the introduction of the ‘Land Information Management System’ (LIMS).
Contract of Sale stage
This is the stage where:
· Parties specifically spell out their agreed terms for the purpose of documenting the same. This stage also includes sharing relevant background information such as parties and their descriptions, the description of the property, the vendor’s root of title and nature of vendor’s title, price and mode of payment including any deposit (if applicable), etc.
· A draft contract of sale agreement may sometimes be sent to the Purchaser while the Purchaser is verifying the vendor’s title to ascertain his ownership of the land.
· Payment of deposit to the vendor by the purchaser.
· Signing of the contract of sale agreement or purchase receipts by both parties. At that point where the Contract of Sale is signed and exchanged between parties, the vendor effectively holds the land in trust for the prospective Purchaser till he fully pays and fulfills all conditions agreed by both parties.
The completion stage is the stage where:
· The purchaser (now assignee) pays any balance of the sale of land consideration.
· The purchaser receives original title Deeds and other relevant documents from the vendor.
· The purchaser is now put in actual or deemed physical possession of the property.
· A formal Deed of Assignment is executed in readiness to perfect the purchaser’s title towards his obtaining legal interest from either the State or Federal Government.
Perfection stage is a post-completion stage which entails:
· The Land Use Act prohibits alienation of statutory right of occupancy or dealings in respect thereof, without the prior consent of the State Governor hence, the consent of a state Governor must be sought and obtained before alienating land to another person.
· Stamping of the Deed of Assignment entails payments for Stamp duties and taxes imposed on the transactions, one of which is transfers of interest in land.
· Registration of the Deed of Assignment at the Lands Registry. By Section 18 of the Lagos State Lands Registration Law every land instrument must be registered to have the backing of law and also to have priority over any other competing interest in respect to the said land.