On the Need to Seek Legal Guidance Before Buying Property by Wole Aroge

Real estate business is generally perilous and requires a high-risk appetite, especially in Lagos and other urban areas, hence, there must sure be some measures that a prospective buyer should take to prevent the common misfortunes that are often encountered by prospective buyers and intending property owners.

Whilst it is necessary to engage a competent lawyer with real estate expertise to carry out legal due diligence and proper documentation, we cannot simply leave it at that. Such a lawyer will offer insightful preemption to resolve the potential irregularities that are often presented in these situations, which then leaves us with these following questions:

What does legal due diligence in property transactions entail?

Simply, legal due diligence is the preliminary investigation conducted usually by a prospective buyer’s lawyer with the aim of ascertaining the authenticity of the seller’s title, the status of the land and ensuring overall compliance with relevant laws.

The result of a legal due diligence conducted by a lawyer will reveal the identity of the real owner; whether the physical features are consistent with the content of the title documents; whether the land is a subject of any dispute or litigation; whether the land has been sold previously to another buyer; whether the land has been acquired or is within government acquisition area; whether there are other customary, statutory, or city planning restrictions over the land; and whether there is a charge on the land or it is security for a loan facility etc.

Why is there need for proper documentation?

I will begin by saying that the ideal document for transferring title is a Deed of Assignment. A landed property cannot be transferred through the use of an Affidavit, MOU or those other ludicrous documents. Let me add that it is equally imperative to register such Deed and obtain a Governor’s Consent after execution.

The effect of this is that a land transaction that is not properly documented amounts to a nullity and the buyer runs a risk of avoidable total loss. So also, an unregistered Deed exposes the buyer to high risk, because a subsequent buyer of the same piece of land will enjoy legal priority over such buyer should he register his own Deed.

How can a minor (a person below age of 21) purchase a landed property?

This is a very important question because it has now become a trend to buy property in the name of children with the hope that it will become good investment for such children. Such transactions are invalid in law. Generally, a minor, that is a person below the age of 21 years, cannot purchase a land in Nigeria. However, where a guardian or trustee of a person under the age of 21 years has been duly appointed for such purpose, he may purchase a land on behalf of the minor and hold the property in trust.

How can a property belonging to a deceased person be validly transferred?

Property that forms part of the estate of a deceased person cannot not be transferred or sold unless in accordance with the law. To sell such property off or deal with the estate generally, the children and spouse of a deceased person are required to apply for probate in cases where the deceased made a will before his passing or apply for letters of administration where the deceased passed without making a will.

What happens to the property if the buyer loses title to the land? 

As the common saying goes: whoever owns the land owns everything on it. This simply means that whoever has legal title to a piece of land is deemed to be the owner of any property built on it, regardless of whether he built it or not.

Conclusively, this underscores the importance of engaging a competent real estate lawyer whenever there is contemplation of a property transaction. Although a good number of people elect to do otherwise, such decision is equal to going into the market place whilst being blindfolded.