Generally, all oral contracts for sale of land are prohibited and where such contract exists, it will not be enforceable. The reason for this is because of the provisions of the Statute of Fraud 1677 which requires that there must be some memorandum or notes in writing in respect of contract for sale of land, otherwise such contract is unenforceable. It must be noted that regardless the relationship between the vendor (seller) and the purchaser (buyer), the contract must be in writing.
Black’s Law dictionary 2nd simply states:
|”The word “land” includes not only the soil, but everything attached to it whether attached by the course of nature, as trees, herbage, and water, or by the hand of man, as buildings and fences. Land is the solid material of the earth, whatever may be the ingredients of which it is composed, whether soil, rock, or other substance.”
POSITION OF LAW
In Nigeria, the enactment of the Land Use Act 1978 has placed all lands in the governor of a state to hold in trust for the people of the state. As such, all rights associated with lands now rest with the governor as a custodian, such rights being exercised at his discretion. This empowerment has made all land transactions ranging from mortgage, to outright sale, to purchase, all subject to the Governor’s consent without which such transaction can be declared invalid.
The complexity of land administration in Nigeria makes it necessary to ensure proper documentation is put in place at all times.
In any land transaction, proper care must be taken to ensure that the history of the land is traced and ascertainable, and not just some mere speculation nor the narration of a fantastic story-teller. A buyer of land must never be in a hurry to part with funds, neither must the buyer take the narration of the seller hook, line and sinker. He must investigate the history of the land.
Where the land is a communal land, i e belonging to the community or family, the consent of the principal members and heads of the community or family must be obtained before any valid sale. Also, town planning laws and regulations may restrict the sale and transfer of land where the purpose of which they are intended to be used are contrary to the purpose of town planning laws. For instance, some areas are preserved for commercial or industrial use only or government reserved area (G.R.A).
Also, a buyer must sight the original title documents of the land and demand that a copy of the document is provided. The essence of a copy is to conduct searches at the land registry and appropriate land bureau in the state. The buyer must ensure that the property is not subject to any encumbrances (obstacles) or impediments that can otherwise affect title to land. The buyer must exercise strong caution when any red flag is raised. The mere production of a valid document of title does not necessarily mean that it is a good root of title. The document given must have the following characteristics.
- Genuine and valid
- Be duly executed, stamped and registered
- The grantor has the authority and capacity to make the grant.
- It has the effect claimed by the holder of the instrument.
In the end, land ownership is defined by the validity of the document in a party’s possession and not by the price or receipt of the land. Just like the share certificate issued by a company’s registrar; land document is the proof of title. ; It is important to fact-check before signing those papers.
This post was written by Feranmi Akinluyi. Feranmi is a lawyer at Bonitas Solicitors . This post first appeared on LegalNaija.