Pursuant to my previous article on this subject matter, i got a number of enquiries that centered around Title registration, most of them admitting a lack of a clear idea on some Real Estate documentations and Compliance/Due Diligence requirements i spoke about in my last article.
Some of these enquiries on further investigation turned out to be emanating from faulty Land transactions,some of them possible cases of imperfect Land title transfer or outright Land fraud.
What this article aims to do is to provide a basic understanding of the most necessary pieces of documentation and Compliance requirements without which a Land transaction will basically be void, along with giving potential property owners a clear idea of whether their Land transactions are valid, the right types of documentation to use for specific Land transactions, and what to do if you realize that you might be a victim of Land fraud.
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What type of documentation do i need to sign with a Land vendor to formally buy a piece of landed property?
The document you will need to have drafted, read to you, signed and attested to is a Deed of Assignment,a Deed of Sublease or Deed of Conveyance for a piece of landed property supported by a Written Resolution and signature of the Company Secretary and a Director or 2 Directors if the seller or buyer is a registered limited liability company.
If the property is a flat or terrace building, what you’ll have documented and signed is a Deed of Partition. If the property is land within an Estate, you’ll sign a Deed of Transfer. If you’re receiving a piece of landed property as an inheritance, you’ll be given what is called an Assent. If you’re giving or receiving a gift of property, you’ll sign what is called a Deed of Gift. If you want to collect a loan guaranteed by your landed property, you will sign what is called a Deed of Mortgage, when a mortgage is paid up, you sign a Deed of Release.
When do i need to sign a Deed?
A Deed is necessary in the following instances:-
– When you’re renting a piece of landed property for more than 3 years.
– When you’re giving or receiving a gift of landed property.
– When you’re inheriting a piece of landed property.
– When you’re buying a Land title from a Land owner.
– When you’re appointing a trustee over a piece of landed property.
How do i then buy landed property in Nigeria when i’m based overseas?
You can still buy property by appointing an agent through a document called a Notarized Power of Attorney. The agent will then be empowered to execute or sign a Deed of Assignment in your name and this fact will be reflected in the signature clause of the Deed of Assignment which will also be notarized.
Will this also be possible if i am a foreigner looking to invest in and own Real Estate in Nigeria?
No, you cannot own landed property in Nigeria as a foreigner except you register a company in Nigeria through which you can buy landed property.
When are Deeds not necessary?
You don’t need to sign a Deed in instances that include :-
– Leases of landed property for less than 3 years.
– Assents given to beneficiaries in the case of inherited landed property.
– A vesting order given by a Court of competent jurisdiction.
– Ending an equitable (unregistered) mortgage agreement.
What do i need to have documented and signed if i want to pay for land in instalments?
You need to have documented what is called a Contract of Sale which will bind the seller from being able to sell to any other subsequent buyer.
I just wrote a letter which i and the Land vendor signed showing that i have bought a piece of land. Will it suffice as a good substitute for a Deed of Assignment?
No it won’t because Deeds of Assignment are also statutory requirements and although the letter might qualify as a Land sale on equitable grounds, it won’t likely succeed especially against a competing buyer who signed a Deed of Assignment with the Land vendor.
I just bought a piece of land and i had a Survey plan prepared regarding the said property. Does this mean the land is now mine?
No it doesn’t. What you should have done is to carry out a search at the Surveyor-General’s office in the state where the property is located to confirm if the land is a Government acquisition and then if it is unregistered land you still need to have it charted by the Surveyor-General’s office.
What should i ask for when i see a Land sale advertisement I am interested in?
You should ask for:-
– The seller’s proof of title;
– The Survey plan of the property;
– Photographs of the property.
What should i look out for when carrying out a Land title search/investigation?
You should look out for the following-
a). The name of the last registered owner of the property;
b). The details of the registered Survey plan of the property recognized by the Surveyor-General’s office;
c). The existence of any encumbrance (obstacle) on the title e.g the existence of a Legal mortgage on the property, any pending court cases, if the land is actually a government acquisition.
What is a Proof of Title?
This is a document serving as evidence of a Land owner’s title to his property which is usually obtained after obtaining the Governor’s consent as required by the Land Use Act. A proof of title is usually a Certificate of Occupancy, but it can also be a Gazetted Excision (for unregistered land) or under the former Registration of Titles Law of Lagos, a Land Certificate.
I have heard of Excisions being mentioned by a Land Vendor as his Proof of Title. What’s an excision and how do i recognize one?
Excisions are land areas exempted from acquisition by a State Government which is usually in charge of State lands. These exemptions are given to communities to dispose of as they see fit and are usually registered by the state government as Gazette numbers.
Some unscrupulous companies try to play smart by telling unsuspecting buyers that the land is secured by “excision” as community land, but this is sometimes not the case and the community land might in fact be a government acquisition.
How do i know which piece of land is an excision or acquisition?
You do this by asking your lawyer to make an enquiry to the Land Registry in your state or in the case of Lagos State, the Lagos State Real Estate Regulatory Agency (LASRERA).
My property was recently demolished by the State government. Am i entitled to compensation?
It depends. If you have a valid Proof of Title such as a C of O then you can seek legal redress for compensation. But if the land is originally a government acquisition, you can make an appeal for Land regularization which involves paying for the land all over again. If it a Government commitment originally dedicated to a public interest purpose like a road, industrial park or farming project, i’m afraid to say that your money is gone, which is why a much cheaper Land title search is always the most important part of a Real Estate transaction.
How do i cut costs as a Land developer by avoiding Title registration expenses?
You can do this by buying land with a good root of title or an excision and then reselling after optional development, but you MUST tell the subsequent purchasers or off-takers that they’ll have to carry out a double registration of title to reflect your original purchase of the land and then their own purchase of their land from you. This alone will amount to at least 7% of the value of the property.
Who grants Titles to land statutorily?
The Governor of a state through the Registrar of Titles or Head of the Land Directoratee or the Minister of the Federal Capital Territory for land in Abuja has the statutory duty of consenting to a Land transaction.
Can a Power of Attorney work as a replacement for a Deed of Assignment & When can a Power of Attorney work?
No , a Power of Attorney cannot work as a means of transferring title to land even its usage is a very common practice in certain jurisdictions, especially the Southeastern part of Nigeria. A Deed of Assignment is required simply because it is a Statutory requirement.
An irreversible Power of Attorney for consideration is only useful in the discharge of a debt or as a means of joint venture documentation for Land developers.
Through this type of documentation, you can partner with a bare land owner, develop the land for the purpose of resale, and exit with your profit, with the title to the property still remaining with the landowner. In other words, a Power of Attorney can at best be used as a registrable charge or debt instrument backed by Real Estate as a security.
It can also be used as mentioned earlier to carry out land sales and acquisitions through delegated agents when you’re physically unable to execute a Land transaction agreement.
Conclusion:- It is hoped that this supplementary article will serve to clarify points discussed in my previous write-up and provide further guidance to intending land owners and investors seeking to make the right & well-informed decision before committing to a Real Estate transaction.