OVERVIEW OF PROPERTY LAW PRACTICE IN NIGERIA

OVERVIEW OF PROPERTY LAW PRACTICE IN NIGERA

LAW JURISDICTION

There are three practice law jurisdictions as it relate to property law in Nigeria. These are

1)      THE CONVEYANCING ACT 1881 States: the states include all states in the former old eastern region which would include River state, Bayelsa state, Cross-River, Akwa-Ibom, Ebonyi, Abia, Imo, Enugu, Anambra, and all states in northern Nigeria

2)      THE PROPERTY AND CONVEYANCING LAW 1959: the states include all old western states, Delta, Edo, Ogun, Ondo, Osun, Oyo and Ekiti state.

3)      The Land Registration Law of Lagos state 2015

3 JURISDICTIONS RELATING TO PROPERTY LAW PRACTICE TRANSACTIONS ARE:

CONVEYANCING ACT JURISDICTION( COVERING STATES IN FORMER OLD EASTERN REGION AND STATES IN THE NORTHERN NIGERIA

PROPERTY AND CONVEYANCING LAW JURISDICTION(COVERING STATES IN THE OLD WESTERN AND MID-WESTERN REGION)

LAGOS STATE LAND REGISTRATION LAW AND MORTGAGE AND PROPERTY LAW

In the CA and PCL states when a contract is required to be by deed, it usually state thus: THIS DEED OF ASSIGNMENT OR DEED OF LEASE.

APPLICABLE LAWS IN PROPERTY LAW PRACTICE IN NIGERIA

The Land Use Act 1978

Companies and Allied Matters Act 1990/LFN 2004

Mortgage and property Law of Lagos state

Land Registration law of Lagos state 2015

Conveyancing Act

Property and Conveyancing Law  1959

GENERAL APPLICABLE LAWS

Stamp Duties Act, sections 19 and 22

Illiterate Protection Law

The Constitution of the Federal Republic of Nigeria,  1999, as amended; sections 43 and 44

Land Instrument Registration Law of various states

Customary Law

Interpretation Act

Evidence Act 2011

Law Reform Contract Law

Statute of Fraud 1664

Wills Act/Laws 1837, 1852(Amendment) Act

Administration of Estate Law of the various states

High Court (Civil Procedure) Rules of the various state

Rules of Professional Conduct 2007

Legal Practitioners Act

Legal Practitioners (Remuneration for Legal Documentation and other Land Matters) Order 1991

Capital Gains Tax Act

Personal Income Tax Act

Companies Income Tax Act

Value Added Tax Act

Tenancy Law of Lagos state 2011

Case Law

Principles of Equity

Land instrument preparation laws of the various states

Meaning of Property

Immovable or Real property: Land or interest in land

Personalty: wills, money, shares, copyright, etc

Meaning of Conveyance:

Generic word for the creation and transfer of interest or rights in land or property.- section 2(1) PCL. Note: a will is not a conveyance because of its testamentary nature. However it is a document AFFECTING interest in land

Essence of PLP

S- Shelter

S- Status symbol

A- Asset/Investment benefit

ROLE OF A LAWYER IN PROPERTY LAW TRANSACTIONS IN NIGERIA

Advise on legal requirements for various property transactions.

Preparation of legal documents and instruments of transfer; section 22 LPA

Documentation and perfection of title

Professional responsibility to client in conducting his property transactions.

TYPES OF PROPERTY TRANSACTION UNDER PROPERTY LAW PRACTICE IN NIGERIA

1)      sale of Land.- transfer of the entire unexpired residue

2)      LEASE- transfer of some of the unexpired residue. In lease reversionary right exist as it is a term granted from the right of occupancy.

3)      MORTGAGE - legal and equitable mortgage

4)      GIFT OF LAND - no consideration; thus it must be by deed. It is a voluntary and gratuitous transfer or conveyance of an interest in land to another person called a donee, without the donee paying any consideration for it.  A gift is always made INTER VIVOS and it lacks the element of bargain. The following conditions must exist for there to be a valid gift of land:

·         Intention of the donor to make the gift

·         Completed act of delivery to the donee

·         Acceptance of the gift by the donee.

·         There is no consideration

·         There must be witnesses

See ACHODO v. AKAGHA

A gift of land must be absolute. Once it is conditional, it amounts to a tenancy, not a gift.

In ANYAEGBUNAM v. OSAKA, in 1978, the appellant made a gift of land in Onitsha to the defendants for the land to be used to worship God. That appellant later ceased to be a member of the church, took the OZO title and sought to revoke the gift. His action failed as the gift was absolute upon acceptance

5)      CONTRACT OF SALE of land

6)      ASSENT: issued by the personal representative to the beneficiary before the property can be vested in the beneficiary. A will must be in existence before an assent can be issued.

7)      A WILL AND CODICIL: there is a difference between a will and a codicil in spite of the fact that they are both testamentary documents. For there to be a codicil, there must have been a will in existence. A codicil amends, revoke and add to the provision of a will. Also it revives and republishes a will. In respect of a will where executors have been appointed, probate will be granted. In respect of an intestate estate, letters of administration without will(simple administration)will be granted to the deceased next of kin. In respect of a testate estate where there is no executor or the executors appointed have died or not available or have renounced probate or legally incapable to act, letters of administration with will annexed will be granted.

8)      DONATION OF POWER:.

9)      ADMINISTRATION OF ESTATE:

10)   PLEDGE

PARTIES TO PROPERTY TRANSACTION IN NIGERIA

Before the Land Use Act, the parties to a sale transaction were VENDOR and PURCHASER. Under the Land Use Act, the term is ASSIGNOR and ASSIGNEE. This is so even when the transaction is conveyance; it is still assignor and assignee.

Mortgagor/Mortgagee

Chargor/Chargee

Donor/Donee

Lessor/Lessee, Sub-lessor/Sub-lessee

Landlord/Tenant

Testator/Executors

Testatrix/Executor/Beneficiaries

Intestate - Administrator/Administratix

Documents to be prepared in property law transactions in nigeria

Usually the solicitor of the party who will lose or suffer should something go wrong will prepare the document.

Deed of Assignment - Assignee's solicitor

Power of Attorney - Donor's solicitor

Deed of Legal Mortgage - Mortgagee's solicitor

Deed of Lease - Lessor's solicitor

Will/ Codicil - Testator's solicitor

Assent - Personal representatives solicitor

Letters of Administration- Administrators solicitor

Contract of Sale - Vendor's solicitor.

Letter - Solicitors

Search Report - Solicitor (Purchaser or Mortgagee's solicitor.

Tenancy- landlord’s solicitor

Please note the following

ü  A lease and a tenancy are collectively referred to as a grant of term of years

ü  Difference between an assignment and a term of years is reversionary interest

ü  A lease is a term of years above three years. A lease confers legal interest and the consent of the Governor must be sought.

ü  A term of three years or below three years is a tenancy and it confers equitable interest. Thus, the consent of the Governor need not be obtained pursuant to section 22 LUA. NO PAYMENT OF CONSENT FEES FOR TENANCY AGREEMENT

ü  When a property is covered by a certificate of occupancy, a term of years created will be a sub-lease. This is because a C OF O is a term of years granted by the Governor usually for 99 years. Thus, the holder of the C of O would execute a DEED OF SUB-LEASE to transfer some part of his unexpired residue.

ü  Should a sub-lessee want to lease out, it would be UNDER lease.

TAXES AND FEES to be paid in property law transactions in nigeria

1  CONSENT FEES(Governor)

2  Personal Income Tax

3  Registration fees

4  Stamp Duties

5  Capital Gains Tax(Does not apply to Mortgages)

6  Value Added Tax

6  Companies Income Tax

7  Land use charge in Lagos state(property owners) may not apply in sale of land

8  Solicitors fee(   Bill of charges)

WRITTEN BY:

CHAMAN LAW FIRM TEAM

Email: info@chamanlawfirm.com/ chamanlawfirm@gmail.com

Tel: 08065553671, 08024200080