OVERVIEW OF PROPERTY LAW PRACTICE IN NIGERIA
PROPERTY LAW TRANSACTIONS IN NIGERIA
REAL ESTATE AND PROPERTY LAW PRACTICE IN NIGERIA
OVERVIEW OF PROPERTY LAW PRACTICE IN NIGERA
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
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
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
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- 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:
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.
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)
CHAMAN LAW FIRM TEAM