The transfer of land ownership in Nigeria involves the process where the legal rights to land are transferred from one person to another.
There are several methods by which land can be transferred in Nigeria. Some of these methods include the followings:
4. By probate
Sale of land involves the outright transfer of interest in a land from one person to another. It involves selling the house or land for an actual fee.
There are some legal restrictions involved in a sale of land transaction. They include:
Consent must be obtained when required i.e Governor’s consent. Any land that is under a statutory right of occupancy can only be properly transferred when Governor’s consent is obtained.
If the land is a family or community owned land, the land cannot be properly transferred unless the consent of the principal members and head(s) of the community and family is sought and obtained.
Some covenants under a lease might restrict the sale of land.
Town planning laws and regulations.
Where there is an ongoing court case in respect of a property, one cannot properly transfer such a land to another person (the doctrine of lis pendens).
There are two main stages involved in the sale of land transaction, which are the contract stage and the conveyance stage.
When a landed property is sold, the appropriate document transferring the title of the land and contract of sale stipulating some terms of the transactions may be drafted by purchaser’s lawyer.
There are two types of mortgage transactions under the Nigerian law namely; equitable and legal mortgage.
Mortgage involves the use of a landed property as a collateral for a loan. Most of the times the mortgagee is usually a bank, and depending on the type of mortgage, the mortgagee either obtains a legal or equitable interest in the land.
There is a saying that goes once a mortgage always a mortgage, but it is possible for a person to out rightly lose his property if he fails to pay his mortgage within the required period of mortgage.
At initial, a transfer of property under a mortgage transaction is inchoate, it becomes permanent when the mortgagor defaults in payment.
A Mortgage Deed is usually used to document a mortgage transaction. Such a deed is a registrable instrument under the law.
Another method of transfer of ownership to be discussed is that of gift. Unlike sales, a gift of a land requires no fee. It is free. All that is required is that there is an intention by the donor to make the gift, completed act of delivery to the recipient and acceptance of the gift by the beneficiary. An example is when a person donates a plot of land to a church for the purpose of worshipping God. When a person receives a gift, he should ensure that he has some sort of prove that the land was gifted to him in case the donor dies or regrets giving out the gift and wish to resile. An appropriate document to be used for a gift is known as a Deed of Gift. It is a registrable instrument.
Probate is a process by which the assets of a deceased devolves into other persons through will or otherwise.
When a person dies with a valid will, the executors listed in the will may seek to prove the will and obtain probate, which grants all assets of the deceased to them.
Also, when a person dies interstate, that is without a will, then the property of the deceased will be distributed according to the relevant provisions of the law. The personal representatives of the deceased will be able to apply as administrators and obtain a letter of administration in respect of the assets of transfer through probate.
DOCUMENTS INVOLVED IN LAND TRANSFER IN NIGERIA
CONTRACT OF SALE OF LAND: This document is used by parties to agree on certain terms before the finalization of the transaction and before the final deed of assignment is prepared under sale of land transactions.
DEED OF CONVEYANCE OR ASSIGNMENT: This is used in sales transactions to permanently transfer or convey land from one buyer to another. It is a registrable instrument
CERTIFICATE OF OCCUPANCY: This is a document issued by the Government of a state, indicating that a person now owns a parcel of land. The Certificate of Occupancy is issued to any person who has been in possession of a piece of land before 1979. It is also issued by the state’s government to allottees of government’s landed properties. People who subsequently take over the land by way of sales, mortgage etc do not need a fresh certificate of occupancy but a Governor’s consent.
DEED OF MORTGAGE: This deed is used in mortgage transactions to show that a land has been transferred from the mortgagor (borrower) to the mortgagee. It is a temporary transfer in sense that the mortgagor shall be entitled to retrieve this land back if the loan amount is paid with interest.
SURVEY PLAN: A survey plan is used to show the extent and size of one’s land. It also enables one to find out whether the land is under any government acquisition.
POWER OF ATTORNEY: This document might be required in some instances where a person in a property transaction is far away from Nigeria or is indisposed for one reason or the other. This is a document that gives another person the authority to act on behalf of a party to the transaction. A person who lives outside Nigeria but intends to buy a land probably manage it can donate a power of attorney to an agent to help him perform certain functions in respect of the property.
LAND PURCHASE RECEIPT: After the purchase of land, it is appropriate to ask for a receipt. However, the need for a receipt may be obviated where the receipt is already contained in the document transferring the land.
DEED OF GIFT: This is a document that proves that real estate has been gifted from a Donor to a Donee. Such a document can also be used to transfer interest in a land.
PROBATE: A grant of probate is a document derived as a result of the will of a demised person through inheritance. The document vests all the assets contained in it into the executors of the estate
LETTER OF ADMINISTRATION: The letter of administration also vests the assets contained in it in the administrators of a particular estate. It is granted to the personal representatives of a deceased person where the deceased died intestate.
ASSENT: Assent is issued to vest an interest in a particular estate into the beneficiaries of an estate or third-party buyer by the executors or administrators of an estate.
JUDGEMENT OF COURT: The judgement of a court is also another important document that may transfer an interest in a particular property from one person to another. It is useful where the title of a particular property is derived through a lawsuit.
In conclusion, when someone wishes to purchase a landed property or carry out any transaction on a landed property, it is important to carry out due diligence in order to avoid purchasing a property with defected title. It is of utmost importance to conduct search and investigation into every piece of land or house to be purchased.