Deed Of Assignment In Real Estate Business

A society without law is a society in chaos, as it is human nature to associate and during association disputes are bound to occur. There are different laws in force to regulate day-to-day activities as citizens of Nigeria such as The Constitution, Criminal Code Act, Judicial decisions, Land Use Act and so on. Some laws applicable to a deed of assignment are as follows: The Land Use Act, The Illiterate Protection Act, Land Instrument Registration Laws etc.

A deed is a legal instrument used in real property transactions in Nigeria to create a binding obligation and effectively transferring an interest or right.

A deed of assignment refers to a legal document which an assignor(transferor) states his willingness to assign the ownership of his property to the assignee(transferee). The deed of assignment is required for any transfer of the seller’s rights, title, interest and ownership in respect of a property to the buyer. It is a written proof of ownership which stipulates the kind of rights or interest being transferred to the buyer which is a legal interest.

 

 Contents of a deed of assignment

The contents of a deed of assignment can be divided into 4 parts namely; The introductory part, the operative part, the miscellaneous part and the concluding part.

 

  1. The introductory part: This part contains the nature of the transaction which is the commencement, the effective date, the parties and recitals.

The parties to the deed must be legal persons which can consists of natural persons and entities with corporate personality, the name, address and status of the parties must be included. The proper descriptions of the parties are assignor (seller) and assignee(buyer). In Nmbia v. AG Rivers state (1999)3NWLR part 593, page 82, it was held that only parties named and described in the deed can sue.

The Recitals gives the material facts constituting the background to the current transaction in chronological order. In Nigel v. Rockonoh properties limited (1995)2NWLR part 378, page473, it was held that a recital explains the reasons for the transaction. A recital can be introductory or narrative.

 

  1. The operative part: It is the part where the interest or title in the land is actually transferred from the assignor to the assignee. It is more like the engine room of the deed of assignment. It is divided into the following parts;
    a. The testatum: This is the statement commencing the operative part.

b. Consideration clause: This contains the total amount of consideration paid by the assignee to the assignor for the property. The consideration must be stated in order to know how much is to be paid for stamp duties. The absence of the consideration clause will not affect the validity of the deed because a deed derives its validity from the form. Consideration clause, when inserted in a deed of assignment, performs the following functions:

  1. It is proof that the conveyance is not a gift.
  2. It implies that there will be evidence of payment of consideration in the form of a receipt.
  3. It can be used for the assessment of stamp duties.

c. The receipt clause: This adds value to the statement of consideration and proves that the vendor acknowledges receipt of the consideration. This clause is usually in bracket.

d. Capacity clause: The capacity of the assignor is what determines the type of title to be assigned. The capacity of the assignor is however stated immediately after the receipt clause expressing the interest of the assignor either as a beneficial owner, personal representative, settlor, trustee or mortgagee. Where the assignor is conveying in his capacity as a beneficial owner of title, there are some covenants to be conveyed which are:

i. Right to convey: the assignor has the right to convey the unexpired residue of his interest in the property to the assignee.

ii. Quiet enjoyment: the assignor conveys the right of quiet possession and enjoyment to the assignee.

iii. Freedom from encumbrances: this is conveyed to ensure that the property is free from encumbrances other than those disclosed to the assignee in the contract or at the time of the contractual agreement.

The above mentioned can, upon consensus by the parties involved, be excluded by inserting an appropriate clause in the deed.

e. Word of grant: this assigns, conveys or transfers the interest in the property.

f. Parcel clause: this clause gives a well detailed description of the property which is the subject matter of the deed.

g. Habendum clause: this is a clause in a deed that defines the quantum of interest granted to the assignee. In Stephen Idugboe v.Anenih(2003) FWLR part 949, page 1418, it was held that the habendum clause in a deed defines the extent of ownership on what was granted to be held and enjoyed by the grantee.

3. Miscellaneous part:
a. Indemnity clause: this is an undertaking by the assignee to observe all covenants and conditions accruing from the property. An assignor can also undertake to indemnify the purchaser for any defect that may arise in respect of his title.

4. Concluding part: this contains the testimonium, execution and attestation clauses.
a. The testimonium: this shows that all the parties are involved in the execution of the deed.
b. Execution: this means signing. The capacity of the parties (either individual, corporate bodies, illiterates) is of great essence in the mode of execution. Format of execution is as follows;

1) Regular individual: SIGNED, SEALED AND DELIVERED (in the presence of the within named assignor/assignee).

2) For illiterates: illiterate jurat will be applied in line with the provision of the illiterate protection act i.e

SIGNED SEALED AND DELIVERED

By the within named assignor…..

The content of the document having been first read and interpreted to him from…… to………. by me…………. (Sworn testator) when he appeared perfectly to have understood it before affixing his thumb print thereto.

Before me
Commissioner for oath

3) For companies:

The common seal of……… Ltd was affixed to it following a resolution of the company dated the ………day of…….20…..

……………………..                     ……………………………

Director                                      Secretary

4) Attorney executing a conveyance

By the lawful attorney of the within named vendor by virtue of the power of attorney dated the ……….day of……….20…… registered as No……..page…….. in volume……… of the Land Registry at………..

 

c. Attestation: this refers to the witnessing of the execution of the deed by witnesses.

It is however pertinent to note that franking is an essential feature of a deed of assignment. This is the endorsement of the name, address, seal and stamp of the legal practitioner who prepared the deed of assignment. This is duly provided for in Rule10 of the Rules of Professional Conduct (2007) which provides thus “A lawyer acting in his capacity as a legal practitioner shall not sign or file a legal document unless there is affixed on any such document a seal and a stamp approved by the Nigerian Bar Association” .

 

It is important to note that If Mr. A purchases a property and does not proceed to the next stage which involves applying for Governor’s consent, stamping and registration of the Deed of Assignment, and the same land is sold to Mr. B who goes ahead to obtain Governor’s consent, stamp and register his Deed of Assignment, Mr. A’s Deed of Assignment is generally worthless and Mr. B. acquires a better title.

 

Application for Governor’s consent:

This is the process in which the solicitor for the purchaser obtains the Governor’s consent for the actual alienation or transfer of the interest in a property. Where the property is subject to a statutory right of occupancy, the owner of the right must obtain Governor’s consent while where the property is subject to customary right of occupancy, the consent of the local government where the land is located must be obtained.

Section 22(1) of the Land Use Act provides:

“……..it shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise however without the consent of the Governor first had and obtained”.

 

Stamping: this entails payment of stamp duties and taxes imposed on the transaction. The original document and copies are presented to the stamp duties office for assessment of the duty payable. Failure to pay stamp duties makes the Deed of Assignment in acceptable for registration.

 

A SAMPLE OF A DEED OF ASSIGNMENT

DEED OF ASSIGNMENT

BETWEEN

1. ABC(assignor)
AND
2. XYZ(assignee)

Prepared by:

RST (ESQ)
Solicitor.

THIS DEED OF ASSIGNMENT is made this……. day of …..20……. BETWEEN MR. ABC of ……….herein after referred to as assignor (which expression shall where the context so admits include his heirs, executors, successors in title and assigns) of one part

AND

Mr. XYZ of ………………….herein after referred to as assignee (which expression shall include where the context so admits include his heirs, executors, successors in title, and assigns) of the other part.

WHEREAS:

1. The vendor is the owner of a plot of land located at ……… covered by certificate of occupancy registered as number…… at page…..in volume…….. of the land Registry at……..with survey plan number……… dated………

2. The vendor got his root of title from MRS. DEF of…….

NOW THIS DEED WITNESSES AS FOLLOWS:

1. That in pursuance of the agreement and consideration of the sum of N……………paid by the assignee to the assignor (the receipt of which the vendor/assignor acknowledges) the assignor agrees to transfer his title to the assignee.

2.The assignor covenants to indemnify the assignee against all adverse claims, damages and losses incurred by the assignee from any person or body of persons claiming title paramount to the titled herein conveyed by the assignor.
3. The assignor conveys to the assignee to hold for the unexpired residue of his interest in the certificate of occupancy free of all encumbrances and subject to the provisions of the Land Use Act.

4. The assignor assigns all that property located at ……… covered by certificate of occupancy registered as number…… at page…..in volume…….. of the land Registry at……with survey plan number……… dated………to the assignee.

 

IN WITNESS WHEREOF the parties have set their respective hands and seal the day and year first above written

SIGNED SEALED AND DELIVERED

By the within named assignor                 …………………
Mr. ABC

In the presence of:

Name. ……….

Address. ..,…….

Occupation. ………..

Signature…………….

By the within named assignee              …………………..
Mr. XYZ

In the presence of:

Name. ……….

Address. ………

Occupation. ………..

Signature………….

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