Acquisition Of Jointly Owned Properties: Part 1

There are different ways of acquiring land in Nigeria which has been discussed in our previous article on acquisition of land in Nigeria. There are also issues acquisition/purchase of houses or other properties that are jointly owned. This article is aimed at the principles guiding acquisition of jointly owned properties or purchases of properties that have different interests

FAMILY LAND

A family is defined as a group of persons related by blood or by adoption who are entitled to succeed the property of a deceased founder of the family. A family land is a land vested in a family as a corporate entity. To this end, there is no separate individual claim to the title of land hence it is only the family that can transfer its title to any person. A purported transfer of family land by a member of the family is therefore void and of no effect. See ( Solomon & Ors V. Mogaji .(1982) 11 SC 7) where the Supreme Court held that a purported sale of family land by the family head was void abinitio because he had no separate individual interest to transfer to the third party. Furthermore, a member of the family cannot dispose of family land by will. In Ogunmefun V Ogunmefun .(1931) 10 NLR P.82, a textatrix made a gift of family land allocated to her under her will to her relation, it was held that the purported devise was ineffective and void.

It is pertinent to note that the purpose of family land is to provide for the needs of members of the family and as such members have certain rights . This right includes the portion to reside, to have reasonable ingress and egress, right to surplus income and to have a right in the management of the family property.

A transfer of family land without the consent of the family head and the principal members of the family is void. This means that where a member of the family sells a family land without the consent of the family head, such sale is void. See Ekpendu V. Erica 1959) NSCC 64, in this case, a member of the family granted a long lease to a third party without the consent of the family head. The head of family sued the leases for trespass and was granted an injunction by the court.

It is also important to state that a member of the family may be issued a power of attorney to act on behalf of the family head and the principal members. Such adoption must be made at a general meeting and the power of attorney should be by deed and should be registered.

Having stated the above, it is trite to point out that caution must be taken while purchasing family lands. This means that before any purchase is made, the purchaser has to be certain that both the family head and the principal members give their consent. To achieve this, the purchaser must request for a copy of the resolution passed by the family head and the principal members as regards the sale of family land. Also, oral interrogation as the root of the title is integral and whether there are partitions on the said land. In cases where the power of attorney authorizing the sale is available, a copy of same should be requested for perusal and handed over to the purchaser.

It is also advisable that an investor goes extra mile to investigate and ensure that the persons presented as family heads are the real family heads and representatives. Property Advisory Network has experienced circumstances where the family head presents persons who are not real family representatives to sign the deed of assignment and the real family representatives challenged the assignment much latter.

PARTITIONED LAND

A partition is a term used in real estate property to describe an act by a court order or by mutual agreement to divide up a concurrent estate into separate portions representing the proportionate interest of the owners of the property.. Partition may be voluntary resulting from mutual agreement between family members and such voluntary partition is usually effected by a deed of partition. . Furthermore, partition may be ordered by the court where interest of justice or peace demands. Where family property is partitioned among the members of the family, each member becomes an absolute owner of his or her share.

There are two kinds of court ordered partition viz: partition in kind and partition by sale. Partition in kind is an actual division of the property while partition by sale is accomplished by selling the entire property and splitting the proceeds equitably amongst the owner.

It is pertinent to note that where a family land has been partitioned voluntarily and a portion given to two or more members of the family, each member has equal rights to such portion. To this end, any purchase made without the consent if each member is null and void.  To this end, it is important to know all the joint owners before any purchase is made. This would reduce future complications which may arise when a joint owner claims ignorance of such sale. Furthermore, where land have not been partitioned, the consent of the family head and principal members are required. Property Advisory Network advises  investors who are interested in buying non partitioned land to ensure that there should be thorough investigations as to the owners of the land (the family head and the principal members) and their consent must be obtained before any purchase is made.

MORTGAGED LAND

A mortgage is a debt instrument, secured by the collateral of a specified real estate property that the borrower is obliged to pay back with a predetermined set of payment. Mortgages are also known as “Liens against property” or “claims on property”. If the borrower stops paying the mortgage the lender can foreclose. It is important to state that a mortgagor is a person who lends, the mortgagee is the borrower while the debt for which security is given is called the mortgaged debt.

The general rule is that a property used as collateral for a mortgage cannot be sold by the mortgagee until the mortgage debt is paid and the collateral is released by a deed of release which is to be registered. However, the mortgagor can exercise his right to sale after there is a default by the mortgagee to pay the mortgaged sum.

The power of a legal mortgagor to sell the mortgaged property upon the mortgagees default is statutory and need not be express. See the Conveyancing Act 1881 and the Property and Conveyance Law. cap 100, Laws of western Nigeria. It is important to state that the power of sale is restricted to legal mortgages only, an equitable mortgagor can only apply to court for judicial sale. The right to sell a mortgaged property depends on two conditions namely:

  1. The power of sale must have arisen in the sense that the mortgaged debt must have become due.
  2. The power of sale must have been exercisable and for this to happen, notice requiring payment of the mortgaged sum must have been issued and default has been made for payment of the money despite such notice.

A purchaser who purchases a mortgaged property after the power of sale has arisen shall acquire an impeachable title. See S.38 of the Conveyance Act.  However statute protects only purchasers for whom the mortgagor has executed a conveyance. This means that the mortgagee may disrupt the sale of the land where no conveyance had been executed.

PAN advises investors willing to purchase mortgaged land is to ensure that a deed of conveyance be made in his favor. Investors should engage the services of a legal practitioner before any purchase is made of land in the above stated categories. This would reduce the risks of future disaster as a legal practitioner knows how to carry out due diligence and give his legal opinion on any issue arising.

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