WHAT ARE THE DIFFERENCE BETWEEN COMMUNAL LAND AND FAMILY LAND
Basically, communal land is land that is collectively own by member of a particular community, but family land is owe by member of a family. Customary Law, ownership of land is generally vested in the village, community or family with the head holding it for the use of the whole village, community or family respectively. Individual right is limited to use and enjoyment of a portion of the land allocated to them. Alienation without the consent of other members is invalid because absolute ownership is vested in the community, village or family as the case may be. The head-man is a caretaker in a representative capacity.
THE CONCEPT OF FAMILY PROPERTY.
Family property is land vested in the family as a corporate unit. Family here means the direct offshoot of the deceased (owner). As such, it does NOT include the deceased's siblings, grandchildren extended Family, slaves or wives unless the deceased declares otherwise.
The institution of communal property is dead but the institution of family property is dying-Speed AC in Lewis V Bankole. Though not fully dead, as various family properties still exist in practice
No single member can claim ownership of a part or the whole of the family property notwithstanding that he made improvements Owoo V Owoo, Lewis V Bankole, Lopez V Lopez. In the three cases, the court noted that the improvement made to the family property belonged to the family.
How is family property created?
Family property is created by:
• Declaration: of the founder/owner that he wants his land to be family property-Nelson V Nelson.
• Purchase: of land with family fund- In Nelson V Nelson, something similar to this happened; Family Land "A" was acquired and compensation was paid. The compensation money was used to purchase Blackacre. The court held that blackacre belonged to the family.
• Devise: where the family land in his will... where he states in his will that his land shall be family property. This was done in Jacobs V Oladunni.
• Conveyance: Where property is conferred on the family by deed.
• Intestacy: In Abeje V Ogundairo, the court noted that where a landowner, whose estate is governed by customary law dies intestate, his land devolves on his heirs as family property. It is immaterial that the person is survived by only one child. The property is still regarded as family.
MANAGEMENT OF FAMILY PROPERTY.
Is the responsibility of the family head in conjunction with the principal members of the family.
THE FAMILY HEAD: Is usually the eldest surviving male child of the founder of the family. Where the eldest dies, the next in seniority takes over-Lewis V Bankole. Most customs (like some Igbo customs) mandate male family heads to the exclusion of females... but in Ricardo V Abal, the court noted that the sex of the eldest child is irrelevant. Note also that the family. head may be appointed by the founder (owner).
The Family head maintains the family property, he allocates portions of the land to family members, he alienates and executes power of attorney with the consent of the members of the family, where the property has been let out, the family head collects rent on the property.
What is the Status of the Family Head?
In Amodu Tijani V Secretary of Southern Nigeria and the case of Kuma V Kuma the Courts saw him as a trustee who holds the property for the use of the family. This position is not totally correct. Accepted, just like the English trustee. However, unlike the English trustee, legal estate is not vested in the family head, he is liable to judgment creditors and should obtain the consent of the family members before spending on the property Aralawon V Aromire perhaps it is more convenient to follow the Supreme Court's position in Solomon V Mogaji, where it held that the family head is a Manager who must act in good faith in managing the property.
PRINCIPAL MEMBERS: they are the direct offshoots of the owner/deceased. Where it is a polygamous marriage, the principal members would be representatives of branches of a polygamous family (usually first born of each wife). They represent the interest of other members of the family and make decisions in conjunction with the family head.
It should be noted, that these land ownership are type of classification of land ownership under the customary land in Nigeria.
WRITTEN BY: CHAMAN LAW FIRM TEAM
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