Good Title V Possession Of Land

INTRODUCTION

It is common that most stakeholders in real estate management do not understand the fact that there exist differences between real ownership of land (landed properties) and mere possession of land.Research has shown us in Business Advisory Network that there is a serious problem in the society in the area of ignorance concerning acquisition of real estate in Nigeria. It may surprise you to know that 50% of houses you see in our urban cities of Nigeria today have no valid documents of title. People just buy land and start building and this a very big issue that requires serious attention. In some cases they just have family receipt and a deed of assignment and nothing more.

There is also this very erroneous impression amongst real estate investors and people seeking to have their own living houses that once you fence a plot of land it surfaces for ownership and possession.  This has caused a lot of problems as evidenced in the number of land disputes in Nigeria today .Our courts and police stations have been inundated with numerous cases concerning possession  and ownership of land.

This article is aimed at making real estate investors and persons intending to acquire land for whatever purpose in Nigeria to know that titles to land and the need to go for these titles first as against going for possession first is the wise way to go . The reason for this is that when you go for titles first ,it will reveal to you the real issues in the land and that may inform your decision to take possession or not because there is no valid ownership of land without valid title . It is also important to note that a valid title is that title which has gone through the legal procedure required for the acquisition of the title. For instance, a Certificate of Ownership which did not follow due process could be set aside when challenged.

 

TYPES OF LAND TITLES

Survey Plan: Survey plan is the beginning of title to land . According to Obumneme A Ezeonu in his book Survey Plan and Land Cases “A survey plan is a specialized map of a parcel of land created by thoroughly examining and measuring the property.It determines and delineates boundary locations, building locations and physical features and other items of special importance. More than just a map of a property, a land survey plan is an important legal document that displays the exact legal boundaries of a property and applicable aspects of the registered title.” The survey  plan spells out the name of the owner of the land which has been surveyed, the address of the land, the description of the land, the size of the land, the numbers of the beacon, the surveyor’s name, the date it was carried out and a stamp from the registered surveyor who did the work. The survey plan also helps in defining the status of the land.

The purpose of land survey plan is to identify the land and delimit the land with sufficient particularity and also to show graphically the morphology (form,structure,topography ) of the area and it’s extent and size as stated in Nnadozie v Omesu (1996)3NWLR (pt446) p126, Oyefoso v Coker (1999)1NWLR (pt558)p661. Similarly, it has been decided in  plethora of cases in Nigeria that for a claimant to get a declaration of title to land he must give oral evidence describing with such degree of accuracy the said parcel of land in a manner that will guide a surveyor to produce a survey plan of the land ( Baruwa v Ogunsola 1938 4 WACA 159) or more precisely by filing a survey plan reflecting all the features of the land showing clearly the boundaries (Awote v Owodunni ( No 2 1978 2 NWLR (pt 57) 367, Ogedengbe v Balogun (2014) 10NWLR pt 1415 )

It is therefore necessary to note the importance of survey plan to a parcel of land. Prospective investors can always investigate the authenticity of the land they want to acquire by taking the survey plan of the land to the ministries of land and land commissions of the various states of Nigeria and Federal Capital Territory Abuja to ascertain the rightful owner to the land. When you did not see the registered survey lodged in the Surveyor General‘s office in the ministry, The Property Advisory Network advises that you take further step to investigate the ownership of the land. In some states of Nigeria, a registered survey suffices as a good title for land.

 

Receipt of Purchase of land.  This is a very important document in title to land. It is another important document you need to have over a property when it is acquired by purchase. An important component of this receipt which purchasers need to know is that you must insist that the basic information contained in the survey plan of the land like the name of the surveyor, survey number, beacon numbers, coordinates must be stated in the receipt. Also other notable landmarks to the land should be stated on the receipt because experience has shown us in PAN that when you have a mere receipt of purchase (especially when you are dealing with family land) which does not have those details, it may be difficult for you to link the receipt to the land in case of any dispute.

 

Deed of Assignment or Conveyance: Conveyance is the process of transferring ownership of land from the seller or owner of the property to the buyer. It provides the mutual agreement that exists between the seller of the property and the buyer which certifies the proof that the seller has transferred all his or her ownership, interest, rights and title on the property to the buyer.

A Deed of Assignment on the other hand is an agreement where an assignor spells his promise that from the date of the assignment, the assignor assigns his ownership in the property to the assignee. This deed has vital pieces of information for a real estate transaction as it specifies 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 states how the assignee got the land, all agreed covenants etc. It is important to note here that the deed of assignment alone and nothing more do not suffice as a good title, there are other processes to go with your deed of assignment to have a valid title. This will be discussed in our subsequent article on validity of deed of assignment. Under the land use Act section 21, any assignment of land must be with the consent of the Governor, however the reverse is the case unfortunately in practice in Nigeria where sellers assign their rights to land by issuing the deed of assignment and moves on .It is usually the assignee that goes through the rigors of obtaining Governor’s consent.

 

Certificate Of Occupancy (C of O): This is a legal document showing that the Governor of the state has granted to the holder a statutory right of occupancy over a parcel of land sequel to the rights of the governor of the state as the owner of every land (intrust) in the state as provided by section 5 of the land Use Act 1976. It can be also seen as a customary right of occupancy by the local government chairman if the land is in that location as provided by section 6 of the same Act There are several procedures to get a C of O / R of O depending on how you acquire your land. It has also been stated that C of O without due process may not be valid .This will be discussed subsequently in our article on C of O. However it is important to note here that (C of O) is one of the best titles to land in Nigeria as most financial institutions may not deal with you on transactions like mortgages if you do not have it.

 

Excision: Excision means taking a part of the whole. It is a term used in Lagos to get a potion of land from the state government, sometimes from a large portion of land belonging to a community before the advent of Land Use Act 1976. In other states of the federation it may be called other names like government allocation, acquisition etc. It is a process whereby in exercising the powers granted to the state governor by section 5 of the land Use Act, the Governor excises a potion of land to a people, community or group for their use upon application in a particular name. It is a process whereby a community now applies to the governor of the state to give a portion of land (in most cases their communal land before 1976) to the people for their use. When this excision is granted to the people and gazette by the state, it now becomes the title to the land. It means that the Governor has granted to the people stated in the document the use of the said land. Information reaching us in PAN is that there are efforts by the Lagos State Government to change the excision documentation to the issuance of Certificate of Occupancy but we will give more information as we obtain it. It is also important to note that the grant of excision alone is not enough, there are other processes the grantees of excision must complete to validate their title but unfortunately, most purchasers of land from family members do not ask for all these details before buying and the family members in most cases do not complete these processes. They sell of their land once excision is granted and now leave the completion of the process to the purchasers. PAN is warning prospective buyers of land having excision documents as title to confirm that these processes are duly completed. This is why we are here for you.

 

Governor’s Consent

Section 21 of the land Use Act provides as follows : It shall not be lawful for any customary right of occupancy or any part thereof to be alienated by assignment, mortgage, transfer of possession, sublease or otherwise howsoever –

(a)        Without the consent of the Governor in cases where the property is to be sold by or under the order of any court under the provisions of the applicable Sheriffs and Civil Process Law; or

(b)        In other cases without the approval of the appropriate Local Government.

What this means is that any process you take in assigning your rights/interest to any potion of real estate property to another, you must obtain the consent of the governor. This is the law but in most cases in practice, it works the other way. People sell their properties without governor’s consent but they go for the consent after concluding the deal. Most times it is the assignee that goes for the consent while it is the assignor that should obtain the consent. Therefore any assignment, mortgage, or any transfer of interest in real estate to another without this consent is null and void. (Ayodare v Union Bank (2007) LPELR – SC 375/2001). Therefore, consent is not a title as so many people presume but it must be obtained whenever there is a transfer of rights.

Having looked at various titles to land, we now look at possession as it relates to the same parcel of land. For you to possess a piece of land, it is either you are the owner of the land or you are and adverse possessor. Who is the owner of the land?

In the celebrated case of Abraham V. Olorunfemi ((1999)1 NWLR (Pt. 163) Nicki Tobi JCA referring to the concept of ownership said as follows: “Ownership connotes the totality or bundles of rights of the owner over and above every other person. The owner of the property is not subject to the right of another person because he is the owner, he has full and final right of alienation or disposition of the property and he exercises this rights without seeking the consent of another party because as a matter of law and fact, there is no other party’s right over the property that is higher than that of the owner. He has an alienation right to sell the property at any price even at a give-away price. He can give it out gratis i.e. for no consideration.

 

The owner of a property can use it for any purpose, material, immaterial, substantial, valuable, invaluable, beneficial or even for a purpose which is detrimental to his personal or proprietary interest. In so far as the property is his and inheres in him, nobody can say anything. He is the Alpha and Omega of the property. The property begins and ends with him and unless he transfers his ownership to a third party, he remains the absolute owner”.

And when you are not the owner of the property and you are not in possession as a result of the permission or consent of the owner, then you are an adverse possessor. The fact you are ignorant of the status of the land does not suffice.

Adverse possession is a principle of real estate law whereby someone who possesses the land of another for an extended period of time may be able to claim legal ownership to that land. This often happens when a squatter exercises possessory rights over another property over a long period of time without interference or action taken by the true owner.  A squatter is a person who settles unlawfully upon land without title. A squatter takes possession of land in an unauthorized manner. A squatter may be referred to as a trespasser who transverse and occupies another’s land with the aim of asserting ownership in the long run, therefore when you have not taken time to investigate the title of a land and you go on and acquire a land and take possession,if at the end you don’t have the documents of the land, then you are treated as an adverse possessor.

 

This is the case when you take up possession of a piece of land without having any of the titles stated above. The Property Advisory Network is therefore advising persons intending to acquire properties to first seek the title of the land before taking possession .This is because when you take possession first before seeking for the title, you will be subject to the following

  1. You are likely to lose all you have invested in the land.
  2. You may be hoping to go for your title much latter in the day and it may be late because someone else may have obtained a valid title to the land and the law is that whoever owns a piece of land owns whatever that is on it.
  3. The cost of obtaining valid titles from the Ministry of Land or land commission of all the states of the federation are subject to upward review, The conditions keep changing as often as possible .You may find out that the cost would be enormous as against what you would have paid if you had sort to get your title before taking possession
  4. You may find yourself in a lot of problems which may cost your life as so many people have lost their lives fighting for properties.
  5. You may also find out that you have bought and built on a piece of land that is under government acquisition and when this is the case the government always would demolish the house. There are so many disadvantages of taking possession of land without good title.

 

We in Property  Advisory Network  advises that you try as much as possible to investigate the title to a piece of land to ensure that you will get a valid title before taking possession as thousands of people have lost their money in the process. Most times the sellers of the land especially when it is family land will give you all manners of assurances that there is no problem. Do not believe them. Our advice is that you do proper investigation before purchasing and when you purchase, commence the production of your title before you commence construction .It will surprise you to know how many people who go buying land without approaching the land commission for any kind of investigation of the title. A lot too have commenced building only with a copy of family receipt. You will never go wrong in trying to seek the title first.

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