Definition of Land Title
Title to land is the means through which a person claiming that he owns a piece of land can show that he is the owner of the land. It is a common saying that “possession is nine tenth of ownership”. This expression is frequently used in relation to land ownership. This practically means that it is the person who is in possession of a land that is presumed to be the owner in the absence of any other cogent reason to think otherwise. By way of a simple example, it is like saying that a person putting on a wrist watch is presumed to be the owner of the watch. While this assumption is simple without being simplistic and is alleged to have its origin in Scotland, from a common Scottish expression “possession is eleven points in the law, and they say there are but twelve”, it is just a common sense expression with quite a number of exceptions. This naturally would lead to the question; how does one ascertain that a person claiming to be the owner of a land is the owner? Essentially, the major question is what qualifies as a title to land? What is title to land?
In a very simple, non-academic definition, a “land title” is the means through which a person claiming to own a piece of land can show that he is the owner of the land.
Types of Titles
There is a common Yoruba saying thus, “Ona kan o woja”, which, when translated, means that there are usually several accesses or roads to the same market place. What I am trying to say is simply that, there are a number of valid ways or means through which a person can show that he is the true owner of a piece of land or real estate. By the way, land is generally to be understood as meaning and including everything on the land; houses, trees, structures, etc. This is often expressed in an archaic Latin expression thus, “quicquid plantatur solo, solo cedit” which when literally translated means “whatever is affixed to the ground belongs to the ground”. In other words, because buildings and trees or other structures are affixed to the ground, they are also part of the land. There are various extensions and limitations of this simple principle which I will not get into here; it is enough to just say that “land” is generally to be understood to include the houses on them. So what can a person claiming that he is the owner of a land show to prove that he is the owner?
Before the 29th of March, 1978, it is possible to own land in Nigeria in perpetuity as the sole and whole owner. After this date, and by virtue of the Land Use Act No 6 of 1978, which took effect from 29/3/78, no one can own land in the strict sense of ownership again. All a person can enjoy is the right to occupy the land for as long as the Governor of a State permits. The Governor of a State is the owner of all the land in a State, apart from the land which belongs to the Federal Government but is located within any State. Federal land still belongs to the Federal Government.
Ownership itself is now to be understood in terms of a right to occupy the land, and it is usually for a period, albeit renewable. Yes! If the period over which “ownership” is granted expires, it can be renewed. It may even be extended before it expires.
It is from the above understanding of ownership that I am writing about title to land. There are a couple of ways through which a landowner can show that he is the owner. He can generally do this by having any of the title formats listed below:
- Certificate of Occupancy (C of O)
- Land Certificate
- Registered Deed of Conveyance/Governor’s Consent
- Irrevocable Power of Attorney
- Court Judgment
I will attempt to briefly explain the basic meaning and indications of the various title formats mentioned above.
Certificate of Occupancy
A Certificate of Occupancy (C of O) is a certificate or document issued by the Governor of a State, or where the land is a Federal land, by the President or a Minister designated by him to issue it. It is a document which shows that a right of occupancy has been granted to the person whose name (and sometime picture) appears on the certificate.
It grants the right to occupy the land for a specific duration, usually a maximum period of 99 years. It could be for lesser periods. It would also contain the conditions of the grant.
In practice, a C of O can be “renewed or extended” in the sense that at the expiration or in some occasions, before the expiration, a fresh tenure can be granted to the same or different applicant.
Land Certificate is a form of title issued before the advent of the Certificate of Occupancy. It shows that the person whose name appears on it has a leasehold interest for the duration stated in it, subject to the conditions also stated in it.
It was issued in certain areas of Lagos State like Victoria Island, Ikoyi, Surulere, Yaba, Apapa and a few other places. It is also for a period of time with a maximum period of 99 years.
Registered Deed of Conveyance/Governor’s Consent
A Deed of Conveyance, also known as a Deed of Assignment, is a contract document usually and ideally prepared by a lawyer and which records the details, and serves as evidence of a land purchase transaction between a buyer and a seller of land.
A majority of land purchase transactions are consummated through Deeds of Assignment. To validate such land transactions, it is a legal requirement that such documents be registered and that the Governor of a State gives his blessings to such transactions by consenting to it. When the consent of the Governor is obtained and it is registered, it is a form of title that shows that the registered owner, whose name appears on the document, is the owner. After it is has been it has been registered, it is generally referred to as “Governor’s Consent”.
Irrevocable Power of Attorney
An Irrevocable Power of Attorney is actually, legally speaking, not a title document. It originated from the attempt by land buyers and sellers to avoid the very fundamental implication of the Land Use Act which mandated that without first obtaining the consent of a Governor of a State, a land seller cannot sell his land to a willing buyer. We all know the bureaucracy involved in seeking the face of the lord of all land in any State, the Governor! It takes time, and most transactions in land would be frustrated.
To bypass the resulting frustration and the breakdown in commercial dealings in land, creative lawyers adapted the already existing concept of Irrevocable Power of Attorney to land transactions. The idea is that the seller would irrevocably, and for good consideration (usually the price of the land) appoint the buyer as their attorney for all transactions relating to the land. The legal loophole here is that a person can still do by himself, what he has appointed another to do for him. The implication of this is that the seller (appointor) is not legally precluded from selling the land to someone else without using the services of the buyer (appointee). So in those same areas where it is common to use an irrevocable power of attorney, it is also backed up by a Deed of Conveyance/Assignment.
A gazette can simply be described as a State “newspaper” wherein it publishes what is has done or what it wants done or how to do things or things it does not want done or things it wants to do. It does have the force of law, where it mandates that certain things should be done.
Sometimes it would publish that it has given a piece of land to a person or a group of persons. As we already should have become familiar, all land (apart from land belonging to the Federal Government) in any State was vested in the State Governor by the Land Use Act. The Governor is to hold it in trust for all of us and to be administered for the use and common benefit of all of us. This is the ideal behind the Land Use Act.
The use of Gazette as a means of proving “ownership” is common in certain parts of Lagos State. This happens when the Governor grants, through a process called excision, a portion of land in the State to a community, after they have applied for the excision of such land, which the State Government would have acquired by its powers under the Land Use Act. The Governor then proceeds to excise a certain part of the land to the applicants and proclaims such excision in a gazette.
When the applicants want to show that the land now belongs to them, they refer to the gazette in which the State Government has made the declaration that the land belongs to them.
Sometimes, the only proof which a person has of being the owner of a piece of land is a receipt. A receipt is simply a document which acknowledges that a payment has been made and is issued by the person who received payment to a person who made the payment.
In traditional/customary land transactions, which are often not evidenced by any document, a receipt is issued by the seller, usually a family who owns the land, and is often referred to as a family receipt. In most cases, the family would go further and sign a Deed of Conveyance. However, it may just be the receipt and nothing else that is issued to the buyer. That becomes his proof of ownership.
There are other forms of documents or action that can show that someone is the owner of a land, subject to certain conditions, and they include deed of gift, probate from wills, letters of administration (where there is no will), assent and other vesting instruments, registered mortgages (shows conditional temporary ownership that becomes permanent upon the occurrence of certain conditions), customary land transactions evidenced by mere possession, payment and witnesses, etc.
The judiciary is the last hope of the common man. All forms of titles mentioned above can only say so much as proof of the title of a person to a piece of land. Once a title is challenged by a person making an adverse claim on such title in a court of law (and all types of titles can be challenged in a court of law), the judgment of a court on the title that is challenged becomes the final title of the successful litigant.
Litigation, or better still, the outcome of such litigation, is therefore the touchstone proof of title. This is especially the case where litigation on land is pursued up to the final court of the land. A final Supreme Court judgment on ownership of land is perhaps the most settled title to that land. It cannot be challenged any further except before God. The Supreme Court can only be reported to God. The Supreme Court is final not because it is infallible, no, it can make mistakes. However, it is infallible because it is final. It cannot be challenged.
What is a Good or Bad Title to Land for Sale in Lagos (Title Quality)?
The term “good” or “bad” title is relative. Whether a title is good or bad depends on the use to which the title is to be put by the person enquiring whether a title is good or bad. This is not to say there are no good or bad titles. In my humble view, a bad title is a title that is not legally valid. All other titles are good titles.
The legal validity of a title may be impugned by a number of factors, namely an illegality, fraud, misrepresentation, etc. These factors can affect any type of title, including the well touted C of O. Outside factors that can affect the legal validity of a title, all legally valid titles are good titles relative to the purpose to which they are to be put.
Said differently, it is the quality of a title that matters as opposed to the name the title bears. The quality of a title is also relative as regards the purpose for which the person making the enquiry intends to put it. Legally valid titles have different qualities and purposes.
A Certificate of Occupancy (C of O) is not better than a registered conveyance (Governor’s Consent) if the purpose is to use it as a security for a loan or to obtain mortgage finance for a property. They are of the same quality subject to a number of variables. They are both equally valid and verifiable.
A registered title is of a higher quality than an unregistered title because of the added ease with which the former can be verified at the land registry. An unregistered title is not generally used as security by financial institutions and mortgage houses. A registered title is a title whose records are available to the public and entered in the register of titles at the applicable land registry in any State. On the other hand, an unregistered title has no official public record in the land registry. However, this does not make an unregistered title invalid. It is still valid, provided it can also be verified. All titles, whether registered or not, need verification at the point of transaction on them.
An unregistered title is not a bad title in the sense that it is not strictly legally invalid. It just requires a lot work to verify it. If the purpose of the purchase is not to resell immediately (as a buyer can take steps to perfect an unregistered title before selling it) or use as security for a loan, once a very thorough and diligent verification has been carried out, a buyer can still proceed to buy. He may thereafter take steps to perfect or register his title as the case may be.
Title verification otherwise referred to as title searches, can be formal and/or informal. The steps for conducting a formal and informal search and how to conduct an extensive due diligence on a property title is the subject of another write up.
What a search turns up, in addition to the information about the owner and the nature of the title, could include whether the title is valid or invalid legally, whether there are encumbrances on it, the nature and extent of defects and whether they are remediable or not. All of such outcomes should form the basis of the decision on whether to buy or stay away.
Perfection of Title
All titles, whether registered or not, require perfection once a transaction is consummated on them. Title perfection refers to the legal steps required to be taken once a transfer of title has occurred to formally document the transaction in the public records kept of such transactions and to get the requisite consent of the Governor for such transaction. All of such steps will culminate in the registration of the interest of the new purchaser or buyer.
Most persons do not take immediate steps to perfect their title to a land they have just purchased. The title they have thus acquired is not registered until they take the necessary steps to perfect/register it. Some will still proceed to sell to a subsequent buyer, prior to perfecting their interest. If the subsequent buyer intends to perfect thereafter, this may lead to an incidence of double perfection whereby the subsequent buyer is saddled with the cost of perfecting the title of the previous buyer before perfecting his own title. This is done concurrently but at a higher cost.
Some buyers prefer to apply for a fresh issuance of a C of O as opposed to merely getting a Governor’s Consent. This costs more and is not of any better legal or commercial significance, except that it gives a false sense of a better title and alleged “peace of mind”.
It is also important to mention that for all subsequent transaction on a piece of land which had a Certificate of Occupancy as its root of title, the logical progression is a deed of conveyance through which the seller previously issued with the C of O transfers his title to a buyer. The buyer should proceed to register his deed of conveyance and get a Governor’s Consent in his name. It is after taking this step that it can be said that his title has been perfected or registered and is now searchable in the public records of such titles.
There are many forms of good land titles. Whether a title is good for purpose depends on the purpose for which the title is being sought. If a buyer buys a land with an unregistered title, it is advisable to take prompt steps to quickly perfect such title. A bad land title is a legally invalid title, whether registered or not.