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.”
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