The land system of a given society is the way a land is owned and possessed. It talks about the rights of individuals or an organization to land. The essence of touring and getting conversant with the law as it relates to real estate is obvious. This is because the institutional framework within which decisions are taken are instrumental to the use and ownership of land. Thus, the law in any system is inseparable from real estate.
The legal system of a given society clearly states in their written law (where they are bound by written laws) or via customs which is prominent in that society, the rights to land or the legal arrangement by which access is gotten to economic and social opportunities through land. The rights obtainable as it pertains to land are absolute and derivative. When an individual or organization is said to have absolute rights, it means they are conferred with absolute rights or unconditional rights in perpetuity. This is the most superior form of right and a typical example of this type of right is fee simple interest. Derivative rights on the other hand are rights derived from larger estates which carry absolute rights. They are inferior in quality and include leaseholds, life interests, kola tenancy etc.
Taking Nigeria as a case study in showcasing the rights that exist as it pertains to land, one must first discuss land ownership in Nigeria before and after the colonial rule. This will give an insight into why we have the laws that that are obtainable today. The prominent land tenure system before the colonial rule was customary land tenancy where land holdings were owned by villages, towns, communities and families. There was no room for individual ownership of land and the reason for this was for the purpose of preservation. It was believed that land should be held by the family heads on behalf of families and chiefs or kings on behalf of towns and communities so that these lands could be preserved for the next generation. Thus, there was no fee simple, absolute, or individual ownership to land.
At the advent of the colonial masters in Nigeria the land ownership structure in Nigeria was designed to suit the motives of the British imperialists. Several laws were promulgated at the time and some of them include the Land Proclamation Ordinance 1900. This law disregarded the use of Native law and custom as it relates to the use and ownership of land. The Land and Native Rights Act vested all lands in the Governor while the major highlight of the Public Land Acquisition Act introduced the acquisition of land by the government for public purpose. One can now see the rationale for the laws stipulated in the Land Use Act of 1978. Section 1 of the law vests all lands in the territory of each state in the Governor of that state who holds it in trust and administers it for the common benefit of all Nigerians. This gives the impression that though the Land Use Act is autochthonous, its rules are truly not home grown. They were adopted from laws which existed in the colonial era.
Nigeria gained independence in 1960 from British rule and some of the laws which were in force at the time include the Land Tenure Law of 1962 (this law vested ownership of all lands in the Minister and contained basic principles as those in the Land and Native Rights Act of 1916) and the Land Use Act of 1978. The Land Use Act was promulgated into law with effect from the 29th March 1978 as the nation’s land policy document. It goes to say therefore that the Land Use Act is the Alpha and Omega for use and ownership of land in Nigeria. It regulates not only ownership but also alienation, acquisition, management and administration of land within the Federal Republic of Nigeria. It is established in the law that all lands are vested in the Governor who holds all lands in trust and issues statutory right of occupancy or customary right of occupancy depending on whether the land is in the urban or rural area (possessory rights) to all citizens for 99 years. The Governor grants Statutory right of occupancy for land in urban areas while the local government also grants Customary right of Occupancy for land situated in rural areas. From this ownership and possessory rights delineated by the Act we can safely classify them for the purpose of better understanding into absolute rights and derivative rights. This means the Governor has absolute rights to every land in the territory of his state while citizens who are granted statutory rights by the Governor as provided for by Section 5 of the Act have derivative rights, that is, right of use over the land. Section 5 further empowers the Governor to issue a Certificate of Occupancy (C of O) in respect of a statutory right granted to a person for the period of 99 years.
Section 21 and 22 of the Land Use Act prohibits alienation, assignment, mortgage, transfer of possession, sub-lease or otherwise howsoever customary or statutory rights of occupancy in Nigeria without the consent and approval of the Governor. This means that when a statutory right of occupancy is granted to Mr. A and Mr. A plan to transfer this right to Mr. B, the consent of the Governor must first be had and obtained before such transfer is made. It also goes to say that the legal process of transferring property from one owner to another can no longer be a conveyance because transfer cannot be in perpetuity seeing as no citizen has absolute rights. The owner of a statutory right of occupancy can only assign the residue of 99 years which is the tenure of a statutory right of occupancy.
The Land Use Act also makes provision for acquisition of statutory right of occupancy by the Governor for overriding public purpose. Section 28 says that a right of occupancy can be revoked for the purpose of overriding public interest subject to the payment of compensation for the unexhausted improvements based on the provisions of Section 29(4) of the Land Use Act. A land acquired for overriding public purpose is called a committed land. A committed land is a red flag for anyone who intends to acquire a land because a committed land cannot be ratified. A lot of realtors who intend to make money out of transactions might deceive a buyer into buying a committed land and this is tantamount to buying a court case because such land is not ratifiable. Ratification only comes up when the government allots land to someone who had previously occupied that land without lawful authority from the state government. One of the conditions for ratification is that the land must not be committed.
The law cannot be separated from any aspect of real estate. You need to be properly informed or pay for the services of a lawyer to know whether the title or interest which you are to be assigned is a good root of title. You need to be properly informed to know the rights accruing to you as a tenant or a landlord. You need to be informed about the expenses which comes with having a statutory or customary right of occupancy. Ignorance is never tenable when a costly mistake occurs and disrupts your finances or future endeavors. Real Estate and the law are inseparable.
