One of the
most important ways of laying claim to ownership of land as well as in any
land/landed properties’ transactions is by having title documents that are
relevant and recognized by various government statues and laws on such land and
landed properties.
This post
is dedicated to identifying and explaining the various title documents that are
relevant in any land and landed property ownership and/or transaction in
Nigeria.
The
presentation of any of these title documents will help make such ownership
claim or transaction become legitimate after proper verification from the
appropriate government agencies in charge of all land and landed properties’
matters in Nigeria.
The need
for a relevant title document to support land and landed property
transaction/ownership became very important because of the complex nature of
land alienation and ownership disputes in the country.
Hence, the
need for a legal document recognized by government statute and law which
confers title ownership status to the holder of such land and landed property.
CERTIFICATE OF
OCCUPANCY: This is the most important land title
document used to certify the legal and ownership status of any land in Nigeria
irrespective of its usage. It is a legal document indicating that an owner of
any land has been granted a statutory right of occupancy by the executive
governor of the state where the land situates or a customary right of occupancy
by the local government chairman if the land is in a rural (non-urban) area.
This stautory right of occupancy is different
from a Customary Right of Occupancy, which is usually granted by Local
Government Council.
A Certificate of Occupancy is the land title
document that is delivered to the owner of a piece or larger parcel of land by
the government attesting to the owner’s title to the land whose ownership is in
accordance with the applicable law. Over time, users of land and financial
institutions have elevated this type of land document to be conclusive evidence
of the ownership of the land described in it, to the exclusion of any other
party claiming title to the same piece of land.
The
Land Use Act introduced the right of occupancy system in Nigeria. Right of
occupancy is a right to use and occupy land in accordance with the provisions of
the Land Use Act. Right of occupancy is completely different from ownership of
land known under both customary and common laws which exists before the
promulgation of the Land Use Act.
It is the right granted to an individual or
corporate organization over a plot or parcel of land in an approved government
layout. The right is for a period normally, a maximum of 99 years lease is
granted for residential purpose, while other uses range from 35 to 70 years
depending on the value of improvements.
It is the grant to an individual or corporate
organization over a plot or parcel of land in an approved government layout.
The right is normally granted by the Governor of the state where the land is
located and the Minister, in case of land under the control and management of
the Federal Capital Territory.
A certificate of
occupancy is therefore the evidence of the right of occupancy. A certificate of
occupancy is a document that shows that the person disclosed there in is
entitled to the right of occupancy. It must be noted that certificate of
occupancy is the only method devised by the Land Use Act which links a person
to a right of occupancy.
DEED OF
ASSIGNMENT/CONVEYANCE:
This
is a very important document that must
be demanded for and given to a
purchaser after the conclusion of any land/property transaction between such
purchaser/buyer and the owner/seller of the land/landed property in question.
Section
2(v) of the Conveyancing Act 1881 provides the definition of conveyance as
follows:
“A conveyance includes any
assignment, appointment, lease, settlement and other assurnces and covenants to
surrender made by deed on sale, mortgage, demise or settlement of any property
or on any other dealing with or for any property; and convey, unless a contrary
intention appears, has a meaning corresponding with that of conveyance”e.
Also
section 2(1) of the Property and Conveyancing Law, 1959 states that: “A
Conveyance is a mortgage, charge, lease, assent, vesting declaration and every
other instrument except a will”.
Conveyances are described as including “assignment,
appointment, lease, settlement and other assurance and convenant to surrender,
made by deed, on a sale, mortgage, demise, or settlement of any property, or
any other dealing with of for any property”.
Conveyancing
is the process by which ownership of land is transferred between a seller and a
buyer. This can include both residential and commercial land transactions.
It refers to the mutual agreement
between an owner or seller of a land/landed property and the purchaser/buyer of
such land/landed property showing evidence that the owner/seller of the
land/landed property has transferred all his/her ownership, interest, rights
and title on the land/landed property to the purchaser/buyer who has bought the
land/landed property from him/her.
A
Deed of Assignment therefore is an agreement where an assignor states his
promise that from the date of the assignment or any date stipulated therein,
the assignor assigns his ownership in that Land to the assignee.
The deed
contains very pertinent information for a real estate transaction. It spells
out the date when the ownership of the property transfers from one owner to the
other. The deed also gives a specific description of the property that is
included in the transfer of ownership.
It is very compulsory and mandatory for a Deed of Assignment
document to be recorded at the appropriate land registry to show legal evidence
as to the exchange of ownership in any land/landed property transaction in
order to make the general public and government aware of such exchange and/or
transaction.
Any recorded Deed of Assignment at the appropriate land
registry will be authenticated in form of either a Governor’s consent or Registered
Conveyance after it has been stamped at the Stamp Duties office.
Under the Land
Use Act of 1978, when parties exchange documents of sale (A Deed of
Assignment), what is being sold is the amount of time unexpired from the 99
year right of occupancy called “the unexpired residue of the term”.
Most
importantly, apart from the Certificate of Occupancy, a deed of assignment or
conveyance is the most recognized document of title on matters relating to land
and landed properties’ ownership/transaction in Nigeria as it helps to trace
the history of how such land and landed property that is been transferred gets
to its present owner as well as any disputes that may have occurred as to the
rightful owner of such land and landed property.
These documents
(especially the Sale Agreement and the Deed of Assignment/Conveyance) must
contain the names and descriptions of the parties, proper description of the
property, the agreed purchase price, the acknowledgement of receipt of that
amount, the capacity in which Vendor is selling, a Warranty that he has a right
to sell in that capacity, condition that the contract shall be conditional on
the obtaining of any requisite consents to the transaction, etc.
DEED OF LEASE: The use of Deed
of Lease was quite common from the passage of the Land Use Act in 1978 to
transfer property especially government properties in Ikoyi, Surulere, Victoria
Island axis of Lagos state during the mid 70s and 80s after the promulgation of
the Land Use Act. These lands were mostly federal government lands and high
profile lands and it was the first foray into the issuance of the certificate
of occupancies for the first time to people.
DEED OF SUB-LEASE: This
is another relevant tile document in any land and landed property
ownership/transactions. It is the legal document duly signed and stamped
indicating land and landed property transaction between a leaseholder of land
sub-leasing his/her unexpired lease term to a third party.
LAND CERTIFICATE: This is a document of title as to the
ownership of a piece or large parcel of land issued by a government’s land
registry for registered freehold or leasehold lands in Nigeria prior to the
promulgation of the Land Use Act of 1978.
Land Certificate was usually issued to owners of
land and landed properties when the Property Conveyancing Law of 1959 was still
in effect.
It refers to the Prima facie evidence of land
ownership prior to the promulgation of the Land Use Act which vests on lands in
the governor of each state of the federation.
DEED OF
MORTGAGE: Mortgage
is defined as the transfer of interest in land as security for the discharge of
a debt or the performance of an obligation subject to redemption.
It
refers to a security for loan with an undertaken for repayment and cesser upon
redemption.
The
common types of mortgage transactions are; Legal Mortgage and Equitable
Mortgage
Legal mortgage is
a type of mortgage which transfers the legal interest one has/owns in land,
whether leasehold or freehold in consideration for loan advancement. It is
usually created by a deed in accordance with the covenants of the mortgage
contract or by use of a statutory form resulting in perfecting of instrument by
which it is created.
Equitable mortgage on
the other hand is a type of mortgage that transfers merely an equitable
interest in land or some other properties to the mortgagee. It refers to an
agreement to enter into a mortgage transaction but which is created on the
rules of equity. Hence, a mere deposit of title deeds in exchange of a mortgage
loan without a written agreement is an equitable mortgage.
SURVEY PLAN: This is another
important title document that helps to reveal the true ownership status in any
land and landed properties’ transactions. It also helps to reveal if such land
is not under any government acquired or committed lands/area.
In a situation where
the land to be purchased by the prospective buyer is just a bare land without
any improvement or building on it, it is compulsory for the buyer to carry out
a proper scrutiny on the authentication of the land survey plan at the
appropriate survey ministry or agency so as to establish the rightful owner of
the land and if the land to be purchased does not fall under any known
government acquired or committed land.
Whatever title document
that is presented during any land and landed property transaction by the
owner/seller to the purchaser/buyer, it is compulsory for the parties involved
in the transaction to obtain the governor’s consent as well as have the
document duly registered with the appropriate government agency after
completion of the transaction to make it legally binding on all parties
involved in the transaction.
The land use act of
1978 makes it mandatory for a holder of right of occupancy (both actual grant
or deemed grant) when carrying out subsequent transactions on the land, to
obtain Governor's consent, either by way of assignment, mortgage, transfer of
possession, sublease or as otherwise applicable.
Always carry out a
thorough search at the appropriate government lands registry to determine the
true ownership status of any land and landed property prior to final completion
of the real estate transaction.
ABOUT
THE AUTHOR
Adeniyi Akinjiyan is a
Higher National Diploma (HND) holder of Estate Management from the prestigious
Yaba College of Technology, Yaba, Lagos state, Nigeria. He possesses a
Professional Practice Certificate in Estate Surveying and Valuation from the
Nigerian Institution of Estate Surveyors and Valuers (NIESV).
He is the principal
consultant of Aakient Consultants Ltd, a highly progressive and consolidated
property and construction project management company, which is committed to
providing the highest level of professional services in meeting clients’ real
estate needs.
Feel free to contact
him at: aakientconsultants@gmail.com
