Many
people do not know that there are some statutory laws that have been enacted
and established by both the state and federal government to regulate, guide and
govern all forms of land and landed properties’ transactions in Nigeria which
could make such transaction illegal or even lead to forfeiture whenever the
parties to the transaction do not adhere to the provisions of such statutory
laws as been laid down or stipulated.
Land
and landed properties are static in nature and because they are immovable,
hence the Latin maxim “Quicquid plantatur solo solo cedit”
(meaning; whatever is affixed on the land belongs to the land).
Land
and landed properties’ transactions (ownership, sales, acquisition, lease,
mortgage, alienation, assignment/conveyance, sublease) are a contractual
relationship between two or more persons for exchange and release of interest
they have on land and landed property in consideration for a compensation which
is usually of monetary value in nature.
For
the protection of all parties involved in any or all of the above mentioned
transactions as well as making such transactions legal and tenable in any court
of law, the government (state and federal) of the federation has enacted some
statutory laws to guide, govern and protect all persons who find themselves
embarking on any of these land and landed properties’ transactions in Nigeria.
There
are so many reasons why government enacts statutory laws to govern and guide
land and landed property transactions in Nigeria. Some of which are:
·
To help generate
additional revenue for government
·
To add up to the
Gross Domestic Product (GDP) of the economy
·
To endeavour
government carry out one its constitutional statutory function of protecting
lives and properties
·
To protect
land/property investors and owners against fraud
·
To have a
detailed record of all land and property transactions in the country
·
To assist
government in planning towards adequate provision of infrastructural facilities
in the country
The first part of the statutory laws governing
land/property transactions in Nigeria which I will write on are:
1.
Land Use Act
2.
Land Instruments Registration Laws
3.
Registration of Titles Acts
4.
Rent Control and Recovery of Premises
Acts
5.
Tenancy Law of Lagos state
6.
Tenement Rate Laws
7.
Land Use Charge Law of Lagos state
1.
LAND
USE (1978) ACT CAP L5 LFN 2004
This is the foremost
and most widely recognized statutory law guiding, regulating and governing all
matters relating to land/property ownership and transactions in Nigeria.
It was promulgated on
March 29th, 1978 by the then Military head of state; Gen. Olusegun
Obasanjo.
The Act
vested all land compromised in the territory of each state (except land vested
in the Federal government or its agencies) solely in the Governor of the State,
who would hold such land in trust for the people and would henceforth be
responsible for allocation of land in all urban areas to individuals resident
in the state and to organisations for residential, agriculture, commercial and
other purposes while similar powers will with respect to non urban areas
are conferred on Local Governments.
The major
objectives of the Act among other things are:
·
To create a uniform land management
and administration system by absorbing the various land tenure laws in each
state of the federation by promulgating a single land law
·
To make everybody have equal rights
and access to land throughout the federation
·
To curb land speculation activities
in the country
·
To break up the traditional land
holding system by making land readily available for everybody irrespective of
their ethnic background or religious beliefs
The Act made the
governor of each state of the federation to be the chief custodian of land
within the territory of that state for the common benefit of all Nigerians.
The major sections that
relate to matters regarding land/property ownership and transactions in Nigeria
are: Sections 1, 2, 3, 5, 6, 8, 9, 10, 15, 21, 22, 23, 24, 25 and 26.
Section 1 of Act states
that “Subject to
the provisions of this Act, all land comprised in the territory of each State
in the Federation are hereby vested in the Governor of that State and such land
shall be held in trust and administered for the use and common benefit of all
Nigerians in accordance with the provisions of this Act”
What this implies is the
vesting of land management and administration on the governor of each state of
the federation who is seen as the only statutorily recognized person to
allocate land to whosoever requires it for different purposes.
In so doing, a form of
landlord-tenant relationship was created by the promulgation of the Act as the
governor is seen in law as the landlord and every other persons that needs/wants
land for varying uses as tenants.
Section
5 (1) (a) (b) of the Act states that “It shall be lawful for the Governor in
respect of land, whether or not in an urban areas-
(a)
to grant statutory rights of
occupancy to any person for all purposes
(b)
to grant easements appurtenant to
statutory rights occupancy”
What the Act grants an
holder of land be it an urban or non-urban land in Nigeria is just a mere right
to use the land for a predetermined period/term (99years) after which such land
will automatically revert back to the governor at its effluxion except such
holder of land renews his/her right of occupancy at its expiration.
Section 8 of the Act states
that “Statutory
right of occupancy granted under the provisions of section 5 (1) (a) of
this Act shall be for a definite term and may be granted subject to
the terms of any contract which may be made by the Governor and the holder not
being inconsistent with the provisions of this Act”
Evidence of the
governor granting a statutory or customary (depending on the scenario as spelt
out in Section 2 (2) (a) and Section 3) right of occupancy is the issuance of a
Certificate of Occupancy to the holder of such right of occupancy.
Section 9 (1) of the
Act states that “It shall be lawful for the governor-
(a)
when granting a statutory right of
occupancy to any person or
(b)
when any person is in occupation of
land under customary right of occupancy and applied in the prescribed manner;
or
(c)
when any person is entitled to a
statutory right of occupancy, to issue a certificate under his hand in evidence
of such right of occupancy”
Section 9 (2) states that “Such certificate shall be
termed a certificate of occupancy and there shall be paid therefore by the person in whose name it is issued,
such fee (if any) as may be prescribed”
The Act also grants a
holder of a statutory right of occupancy the exclusive right and possession of
all the improvements on such land as well as the right to alienate, mortgage,
sub-lease, transfer, and assign any improvements he/she enjoys on the land
subject to the consent of the governor to make such transaction legitimate.
Section 15 (a) (b)
states that “During the term of a statutory right of occupancy, the holder-
(a)
shall have the sole right to and
absolute possession of all the improvements on the land
(b)
may, subject to the prior consent
of the Governor, transfer, assign or mortgage any improvements on the land which have been effected pursuant
to the terms and conditions of the certificate of occupancy relating to the
land”
The Act does not permit
or give any holder of a statutory right of occupancy the exclusive power to
embark on any form of transaction on the land he/she has been granted a right
of occupancy without the consent of the governor, but where such transaction is
undergone and completed, it will be regarded as null and void except as otherwise
stated in Sections 21, 22, 23, 24 and 25 of the same Act.
Section 26 of the Act states that “Any transaction or any instrument which
purports to confer on or vest in any person any interest or right over
land other than in accordance with the provisions of this Act shall be null and
void”
2.
LAND
INSTRUMENT REGISTRATION LAWS
The law
was enacted to regulate registration of instruments that are executed prior to
and after the establishment of the Act in Nigeria. Registrable
instrument includes an estate contract, a deed of appointment or discharge of
trustee containing expressly or impliedly a vesting declaration affecting any
land.
The law seeks to guarantee genuine land title
documents that have been investigated and registered by the Registrar of Titles
in each state of the federation.
Land registration Act 1924 of Nigeria defined “registrable
instrument as a document affecting land whereby one party called the grantor
confers, transfers, limits, charges or extinguishes in favor of another party
called the grantee any right or title to the interest in land and includes a
certificate of purchase, a power of Attorney under which any instrument may be
excluded but does not include a will”
Therefore, it is
generally agreed that a registrable instrument is a document, which transfers
or creates a right, title or interest in land to or in favour of the grantee.
But a will is expressly excluded from the ambit of registrable instruments.
Consequently, a sales receipt, purchase receipt is not a registrable instrument
if it is a mere acknowledgment of sales or payment and does not confer or
transfer interest in land.
What this simply means it that it is compulsory
and mandatory for any holder of an interest in land who wishes to transfer same
to another person to have registered such document at the appropriate land
registry office been established by government as it will greatly help
purchasers of such land in determining if the owner/seller has the genuine land
title document to sell the property and all encumbrances that are attached to
the land.
To authenticate the transfer of title in any land
transaction, the law requires the holder of such title to apply for the
governor’s consent to the Deed of Assignment which is been executed by both the
seller and buyer in such scenario.
After approval of the governor’s consent, the
Deed of Assignment document will then be stamped at the Stamp Duties office and
thereafter registered at the Lands Registry office.
To hasten the
registration of instruments in Nigeria, the law established in each state of
the federation a Land Registry with the appointment of a Land Registrar charged
with the responsibilities of registering documents affecting land transactions
and keeping same in the book of instruments register.
This law has
been re-enacted in most states of the federation.
3.
REGISTRATION
OF TITLES ACT
Registration of Titles Act of 1935
now referred to Registration of Titles Law of Lagos State Cap R.4 of 2003 was
introduced to correct the inadequacies in the registration of instrument Act of
1924 now known as the Registration of Instrument Laws in various states.
The basic principle of the
Registration of Titles law is that ownership of title to land is based on the
fact of registration, that is, it operates to register dealings and
transactions over titles in land when such titles have been registered.
The
object of the law is to substitute a single established title guaranteed by the
state for the traditional title which must be separately investigated before
purchase. And, must be proved by several documents of title each time the title
is in issue. Transactions in respect of registered land such as leases,
creation of charges, and transfer of interest in land are also required to be
registered.
The law further
encouraged all those involved in any land transaction to investigate the
genuniety of the title documents of the land at the appropriate land registry
where there exists a copy of the registered title document of the land before
embarking on concluding the deal.
4.
RENT
CONTROL AND RECOVERY OF PREMISES ACTS
The Rent Control and
Recovery of Premises Act is enacted in each states of the federation to guide
and regulate all matters relating Landlord-Tenant relationship in any
residential property lease transactions.
The
main purpose for the enactment of this law was to restrict the common law
rights of a landlord with the intent of regulating the recovery and restraining
unlawful eviction of the tenant from the landlord’s premises.
The law spells out the
proper procedure which a landlord can/should take in recovering possession of
his residential property from the tenant after expiration of the rent period.
These procedures are primarily spelt out so as to protect the tenant against
that of the landlord.
The procedures for the
recovery of residential leased premises by the landlord as spelt out in Rent
Control and Recovery of Premises Acts in Nigeria are:
·
The landlord must give a Notice to quit
to the tenant
·
The landlord must give Notice of Owner’s
intention to recover possession of the rented premises to the tenant
·
The landlord must apply for a Writ of
Possession at the appropriate court of law
·
The landlord must obtain an Order of
Possession from the appropriate court of law
The grounds for which
the landlord can rely on in obtaining an order of possession from the court of
law to recover possession of his/her rented premises from the tenant are:
·
Arrears of rent
·
Breach of any covenant or agreement by
the tenant
·
Where the property is required for
personal use by the landlord
·
The premises is been used for illegal or
immoral purposes by the tenant
·
The premises has been abandoned by the
tenant
·
The premises is unsafe and unsound as to
constitute a danger to human life or property
·
The tenant or any person residing or
lodging with him being his sub-tenant constitutes by conduct, an act of
nuisance or induces a breach of the tenancy agreement
5. TENANCY LAW 2011 OF LAGOS STATE
As the name implies,
the Tenancy Law 2011 is a Law of the Lagos state House of Assembly enacted to “regulate rights and obligations under tenancy
agreements and their relationship between the Landlord and the Tenant including
the procedure for the recovery of premises and for connected purposes”
This
law is basically enacted by the Lagos state government in other to regulate and
guide all matters relating to residential properties’ lease transactions
between the landlord and tenant in some parts of the state excluding Apapa,
Ikeja GRA, Ikoyi and Victoria Island.
The
law automatically fixed all residential properties’ lease transactions to that
of yearly tenancy for new tenants as well as regards it as unlawful for any
existing yearly tenant occupying a residential apartment in the state to pay
more than a year rent to the landlord.
Section
4 (1) of the Law states that “It shall be unlawful for a landlord or his
agent to demand or receive from a sitting tenant rent in excess of six (6)
months from a monthly tenant and one (1) year from a yearly tenant in respect
of any premises without prejudice to the nature of tenancy held at the
commencement of the tenancy
(2)
It shall be unlawful for a sitting tenant to offer or pay rent in excess of one
(1) year for a yearly tenant and six (6) months for a monthly tenant in respect
of any premises
(3)
It shall be unlawful for a landlord or his agent to demand or receive from a
new or would be tenant rent in excess of one (1) year in respect any premises”
Some
of the reasons for the enactment of the law are as follows:
·
To regulate the
tenancy period which the landlord or his/her agent should demand rental money
from a new tenant (i.e 1 year rent as against the popular demand of 2years
rent)
·
To stipulate how
much rent money a new tenant should pay the landlord
·
Mandate
landlords to issue a rent payment receipt to a tenant in respect of such payment
made by the tenant. The receipt to be issued by the landlord to the tenant must
include the names of both the landlord and tenant, full description of the
rented property, amount of rent paid and period for which the rent relates.
Mandates
landlord and tenant to always prepare a tenancy agreement which will spell out
the rights and obligations of both parties on the rented property by employing
the services of a professional and paying same in the preparation of the
tenancy agreement
·
Spell out ways and
conditions by which a landlord can evict a tenant from his/her property as well
as recover full possession of same
·
Encourage all
parties involved any form of tenancy disputes to seek redress in a competent
court of law or Alternative Dispute Resolution centre
6.
TENEMENT
RATE LAWS OF NIGERIA
Tenement or property
rating is a form of tax levied on landed properties by local government
authorities in Nigeria to raise additional revenues required for specific
developmental projects within such local government area.
The law is enacted to
impose tax on built up landed properties in Nigeria which is collected at the
local government level on owners of such built-up properties.
The premise for
enacting of the law is to levy property owners towards contributing to raising
additional funds for infrastructural development projects been embarked upon by
the local government authority where such built-up property is situated.
Every state in Nigeria
has their own tenement rate laws at the local government level applicable to
built-up hereditaments.
7. LAND USE CHARGE LAW 2001 OF LAGOS
STATE
The Land Use Charge law
of Lagos state is synonymous to the tenement rate laws that are exists in every
state in Nigeria, but just that it abolished all other taxes such as tenement
rates, ground rents and neighbourhood improvement charges levied on land and
landed properties in Lagos state to create a single property tax law.
The main purpose for
the enactment of the Land Use Charge law by the Lagos state government on all land
and landed properties in the state is to enable the government generate
additional revenues needed to carry out continuous infrastructural development
projects as well as improve the existing ones to cater for the growing
population of people in the state.
Through the enactment
of the Land Use Charge Law (LUCL) of Lagos state, all rates and charges which
were initially imposed on land and landed properties seized to be effective as
there now exists a single property tax law called Land Use Charge imposed on
all land and landed properties in Lagos state.
“The
responsibility for payment of the Land Use Charge resides primarily with the
property owner; however, there is provision in the law establishing the charge,
for payment to be made by the occupier who is then empowered to look to
reimbursement of the charge from the property owner.”
………..to be continued
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
