The issue of defective title comes to play when you are buying land or house from individuals. If you are buying property from the government, you don’t have any cause to worry about the title to the property, because under the Land Use Act, 1978, all lands in the country are vested in the Governors of the 36 states of the federation. In Abuja, the Federal Capital Territory (FCT), the land is vested in the Minister of the Federal Capital Territory. So, in respect of this, you cannot buy a defective title from the government. The certificate of occupancy issued to you is uncontroversial. It is secure.
Recently, a man came to see my colleague. After exchanging pleasantry with us, he informed his friend (my colleague) that he has bought a plot of land somewhere in the South-West for #200, 000. After describing the location of the plot of land he bought, my colleague quickly raised an alarm: “You have been duped”, she said. “I also have plots of land there; virtually, all the lands in the area have been bought; moreover, you cannot buy a plot of land in that area for #200, 000,” my colleague concluded.
Cases like this are rampant. Often, fraudsters sell lands that do not belong to them. When they are paid, they disappear. When buying a land or house, you must do your due diligence to ensure that the vendor has good title to it, because in the eye of the law, you cannot give or sell what you don’t have.
You don’t buy land or house as though you are buying yam in the market. You must do your due diligence. Note that at times, when a person has thought he has done his due diligence, the title to the land may eventually be discovered to be defective, which means the vendor is not the owner of the property.
It is against this background that this article is written. There are procedures to followed when you want to buy property from individuals
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Below are some of the things you should do to avoid being duped by fraudsters:
• If the property is family property, you must first seek the consent of the principal members of the family. One member of the family cannot on his own dispose of family property because the property is not his.
• If the land is communal land, ensure you buy the land direct from the village head, district head, or traditional ruler of the village or hamlet.
• Whether the property you wish to buy is communal land, family land or individual-owned land, after you have been assured of the authenticity of the title to the property, you should still move round secretly to inquire of the actual owner. Inquire from neighbouring landlords, of the title to the land. Ask them whether there is dispute on the land. Ask the village head; ask the principal members of the family about title to the land you wish to buy. You can also go and physically inspect the property to see if it is free of encumbrance. If it is not, you can ask the vendor to explain why the property is under occupation by people or things.
• At the time of buying entering into agreement to buy communal land, family land, or individual-owned land, ensure you call two or three witnesses to the attest to the transaction. Although the agreement need not be formal, it is still advisable that you reduce the agreement to writing.
• If you are buying property from an individual, you must employ a lawyer. You have no option. All property transactions are handled by lawyers for the following reasons:
a) The law provides that only lawyers can draft such documents of property transactions as contract of sale agreement, deed of lease, power of attorney, etc. it is an offense for a layman to draft these and other documents of transactions;
b) Only lawyers can help you conduct a search of title to the property at the land registry and the probate registry of the high court;
c) Only lawyers can help vendors to pay for stamp duties, help prospective buyers of properties to seek Governor’s consent before acquiring the property;
d) Lawyers also take the trouble to investigate the title, tracing the title back to the first owner of the property; and
e) When you buy a property, it is the lawyer that is responsible for having the property registered at the land registry. Failure to register a title to property renders the transaction inadmissible. Under the Lagos state law, it renders the transaction void.
NOTE: In any property transaction, the applicable rule is: “Nemo dat quo non habet. This means a person cannot give sell or transfer what he does not have. Therefore, where a fraudster sells to you a property that does not belong to him, you cannot lay claim to the property. For this reason, the principle of caveat emptor applies. This means “let the buyer beware.”
Monday, 25 July 2011
Know Your Rights and Obligations as a Tenant
Over the years, our courts of law have been confronted with avalanche of cases brought before them. Greater proportion of these cases is on landlord/tenant matter. It is either the landlord is instituting action against the tenant or vice versa.
Now, litigation can be reduced to the barest minimum or even averted, if both landlord and tenant are aware of their rights and obligations and strive to keep them.
In this article, we shall be focusing on the rights and obligations of a tenant.
Rights of the Tenant
In consideration of the rents he pays, the tenant enjoys certain rights. Among these rights are:
1 Right to Quiet Enjoyment
The tenancy agreement confers on the tenant the right to quiet enjoyment of the premises he occupies. He is protected by law from any distraction or disturbance emanating from the landlord, landlord’s agent, co-tenants, or any person. The tenant can sue for injunction and for recovery of damages whenever his right to quiet enjoyment is infringed upon.
2 Right to Possession
Where tenancy agreement is executed between the landlord and the tenant, the tenant takes possession of the premises. He has possession of the premises to the exclusion of the landlord and any person.
3 Right to Statutory Protection
The basis of statutory protection enjoyed by the tenant is the fact that the law frowns at ejection of tenants, leaving them on the streets homeless. For this reason, the law provides for procedure for removal of tenants. Thus, where the tenancy has expired and the tenant still remains in occupation, and fails to pay his rent, the landlord cannot eject him anyhow. He must follow the due process to recover his premises. In default of so doing, the tenant may institute action for wrongful ejection and damages.
4 Right to Assign or Sublet
Generally, the law presumes that the tenant has right to assign, transfer, or sublet his interest in the premises. But if it is stated in the agreement that the tenant should not assign, transfer, or sublet, then the tenant cannot do so without the express consent of the landlord.
5 Right to Institute Action
Where any of his rights is infringed upon, the tenant can seek redress in the court of law.
Obligations of Tenant
In order to enjoy all the rights mentioned above, the tenant is required to carry out these obligations:
1 Obligation to Keep the Property in a State of Repair
The tenant is obliged to keep the premises in a good condition. As part of the maintenance, the tenant is required to repair the interior part comprising the doors, windows, floor, key, painting, etc.
2 Obligation to Permit Repair
Although the tenant has exclusive possession of the premises, the law implies that he should permit the landlord to enter the premises to view the premises in order to repair the structural part of the premises, for instance, the roof, pillar, foundation, drains, staircase, lift, etc.
3 Obligation to Pay Rent
In consideration of the premises he occupies, the tenant is under obligation to pay his rent regularly.
4 Obligation to Pay Rates and Taxes
It is the tenant’s obligation to pay rates and taxes in respect of the premises. Examples of such rates are electricity bill, water bill, waste disposal bill, etc.
5 Obligation Not to Alter Premises
The tenant is under obligation not to alter the premises or make improvements on it, unless the landlord’s consent is sought and heard.
Now, litigation can be reduced to the barest minimum or even averted, if both landlord and tenant are aware of their rights and obligations and strive to keep them.
In this article, we shall be focusing on the rights and obligations of a tenant.
Rights of the Tenant
In consideration of the rents he pays, the tenant enjoys certain rights. Among these rights are:
1 Right to Quiet Enjoyment
The tenancy agreement confers on the tenant the right to quiet enjoyment of the premises he occupies. He is protected by law from any distraction or disturbance emanating from the landlord, landlord’s agent, co-tenants, or any person. The tenant can sue for injunction and for recovery of damages whenever his right to quiet enjoyment is infringed upon.
2 Right to Possession
Where tenancy agreement is executed between the landlord and the tenant, the tenant takes possession of the premises. He has possession of the premises to the exclusion of the landlord and any person.
3 Right to Statutory Protection
The basis of statutory protection enjoyed by the tenant is the fact that the law frowns at ejection of tenants, leaving them on the streets homeless. For this reason, the law provides for procedure for removal of tenants. Thus, where the tenancy has expired and the tenant still remains in occupation, and fails to pay his rent, the landlord cannot eject him anyhow. He must follow the due process to recover his premises. In default of so doing, the tenant may institute action for wrongful ejection and damages.
4 Right to Assign or Sublet
Generally, the law presumes that the tenant has right to assign, transfer, or sublet his interest in the premises. But if it is stated in the agreement that the tenant should not assign, transfer, or sublet, then the tenant cannot do so without the express consent of the landlord.
5 Right to Institute Action
Where any of his rights is infringed upon, the tenant can seek redress in the court of law.
Obligations of Tenant
In order to enjoy all the rights mentioned above, the tenant is required to carry out these obligations:
1 Obligation to Keep the Property in a State of Repair
The tenant is obliged to keep the premises in a good condition. As part of the maintenance, the tenant is required to repair the interior part comprising the doors, windows, floor, key, painting, etc.
2 Obligation to Permit Repair
Although the tenant has exclusive possession of the premises, the law implies that he should permit the landlord to enter the premises to view the premises in order to repair the structural part of the premises, for instance, the roof, pillar, foundation, drains, staircase, lift, etc.
3 Obligation to Pay Rent
In consideration of the premises he occupies, the tenant is under obligation to pay his rent regularly.
4 Obligation to Pay Rates and Taxes
It is the tenant’s obligation to pay rates and taxes in respect of the premises. Examples of such rates are electricity bill, water bill, waste disposal bill, etc.
5 Obligation Not to Alter Premises
The tenant is under obligation not to alter the premises or make improvements on it, unless the landlord’s consent is sought and heard.
Where to Buy Properties in Abuja
The influx of people to Abuja, Federal Capital Territory (FCT), has brought about rapid expansion. This expansion involves construction of roads, improvement on lands, and building of houses.
Like in any part of Nigeria, Nigeria can buy land and houses in the FCT. Also, foreigners can buy properties (land and houses) in the FCT, though with the consent of the National Council of States.
Below are place where you can buy properties in the FCT.
1. Federal Capital Territory Development Authority
The government institution in charge of land within the FCT is the Federal Capital Territory Development Authority (FCTDA). You can buy land direct from FCTDA.
2. Federal Housing Authority
Federal Housing Authority (FHA) is established by the Federal Government for the purpose of making houses available to Nigerians at affordable price. FHA builds houses and sells them to Nigerians. Usually, you are expected to pay a certain proportion of the price of the building. Thereafter, you are allowed to take possession of the house. You are, however, required to pay the balance over a given period of time.
3. Primary Mortgage Institutions
These are financial institutions that are primarily involved in lending money to members of the public. Some Primary Mortgage Institutions (PMIs) also invest in property development. They build houses and sell to members of the public. Prospective buyers are required to open an account with the lending institution, save certain amount of money or pay certain proportion of the building price, and then they are allowed to take possession of the house. A period of time is given them to pay up the balance and the interest.
4. Property Developers
Property developers are mostly companies registered under Nigerian law that invest in property development. They buy land, build houses, and sell them to members of the public. Prospective buyers are asked to pay 50% of the price before taking possession of the house. Some accept 40%. They are, however, asked to pay the balance and interest within 15 years.
5. Individuals
You can also buy land and houses from individual owners.
6. Real Estate Agents
These are business people that sell land and houses and/or lease houses on behalf of property owners or property developers. This category of business people is called “attorneys.” Usually, they are given power of attorney (a document which authorises them to sell) before they can sell. There are also business people whose job is mainly to facilitate property transaction. They are mostly referred to as real estate agents, brokers, finders, etc.
What they do basically is: they bring prospective buyers and vendors, or prospective tenants and landlords together. When the transaction is effected, they are paid an amount of money called commission.
7 Lawyers
Last but not the least, lawyers also sell land and houses on behalf of their clients. Some clients prefer giving their properties to their lawyers to sell for them. Note that in addition to sale of land, lawyers are still very much involved in property transactions. They responsible for drafting documents of transactions. For instance, they draft tenancy/lease agreement, contract of sale agreement, deed of conveyance, power of attorney, etc. they perform other tasks like helping client to pay stamp duties, investigate title at land registry, pay capital gain tax, seek Governor’s consent, or consent of Federal Minister of Federal Capital Territory- in the case of property transaction carried out in the FCT.
Like in any part of Nigeria, Nigeria can buy land and houses in the FCT. Also, foreigners can buy properties (land and houses) in the FCT, though with the consent of the National Council of States.
Below are place where you can buy properties in the FCT.
1. Federal Capital Territory Development Authority
The government institution in charge of land within the FCT is the Federal Capital Territory Development Authority (FCTDA). You can buy land direct from FCTDA.
2. Federal Housing Authority
Federal Housing Authority (FHA) is established by the Federal Government for the purpose of making houses available to Nigerians at affordable price. FHA builds houses and sells them to Nigerians. Usually, you are expected to pay a certain proportion of the price of the building. Thereafter, you are allowed to take possession of the house. You are, however, required to pay the balance over a given period of time.
3. Primary Mortgage Institutions
These are financial institutions that are primarily involved in lending money to members of the public. Some Primary Mortgage Institutions (PMIs) also invest in property development. They build houses and sell to members of the public. Prospective buyers are required to open an account with the lending institution, save certain amount of money or pay certain proportion of the building price, and then they are allowed to take possession of the house. A period of time is given them to pay up the balance and the interest.
4. Property Developers
Property developers are mostly companies registered under Nigerian law that invest in property development. They buy land, build houses, and sell them to members of the public. Prospective buyers are asked to pay 50% of the price before taking possession of the house. Some accept 40%. They are, however, asked to pay the balance and interest within 15 years.
5. Individuals
You can also buy land and houses from individual owners.
6. Real Estate Agents
These are business people that sell land and houses and/or lease houses on behalf of property owners or property developers. This category of business people is called “attorneys.” Usually, they are given power of attorney (a document which authorises them to sell) before they can sell. There are also business people whose job is mainly to facilitate property transaction. They are mostly referred to as real estate agents, brokers, finders, etc.
What they do basically is: they bring prospective buyers and vendors, or prospective tenants and landlords together. When the transaction is effected, they are paid an amount of money called commission.
7 Lawyers
Last but not the least, lawyers also sell land and houses on behalf of their clients. Some clients prefer giving their properties to their lawyers to sell for them. Note that in addition to sale of land, lawyers are still very much involved in property transactions. They responsible for drafting documents of transactions. For instance, they draft tenancy/lease agreement, contract of sale agreement, deed of conveyance, power of attorney, etc. they perform other tasks like helping client to pay stamp duties, investigate title at land registry, pay capital gain tax, seek Governor’s consent, or consent of Federal Minister of Federal Capital Territory- in the case of property transaction carried out in the FCT.
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