Prior to the enactment of the Land Use Act, 1978 (“the Act”), land could be held under freehold ownership in Nigeria. However, the Act now vests control and administration of all land within the territory of a State in the Governor of the State. By this, freehold ownership has been abolished and converted to leasehold ownership. The Act also empowers the Governor of a State to grant rights of occupancy over lands within the State for a maximum term of 99 years. By Section 49 of the Act, title to land can be held by the Federal Government or any of its agencies.
Private ownership of land is recognized but it is subject to the rights of the State Government or Federal Government to the reversion of the interests after the expiration of the term granted to the owner, such terms of years on expiry are renewable continuously subject to compliance with the conditions of grant and renewal imposed by the State.
Also, private ownership of land can before expiry of the term be terminated by revocation for breach of the terms of the grant or provisions of State regulations or by State acquisition where the property or land is required for public use or purposes.
Last modified 18 Oct 2022
Generally, all lands are vested in State Governors who hold and administer same in trust for the use and benefit of all Nigerians citizens, however, the present state of the Nigerian law is that, a foreign investor can acquire real property in Nigeria through a company or other corporate entities duly incorporated under the laws of the Federal Republic of Nigeria. Section 17 of the Nigerian Investment Promotion Act, 1995 also provides that a non-Nigerian may invest and participate in the operation of any enterprise in Nigeria. Any company that is empowered by any law to acquire land in Nigeria can do so like a citizen whether it is owned by a foreign investor or a Nigerian.
Section 22 of the Land Use Act provides that it shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease without the consent of the Governor, a provision which applies to foreign investors and Nigerians alike.
Last modified 18 Oct 2022
The state grants evinced in the Certificate of Occupancy usually provides that the holder of the title shall not alienate the rights granted within 10 years of the grant and is obliged to first offer the property to the Governor. In practice, upon the sale of real property within the 10-year period of the state grant, an additional fee (about 1.5 % of the value) will apply at registration of the transfer.
In a private sale, the contracting parties may by agreement covenant that a property is not to be sold to a third party without first offering it to the seller on terms as agreed in the document.
Last modified 18 Oct 2022
The Constitution of the Federal Republic of Nigeria 1999 and the Land Use Act 1978 are the major uniform laws for the entire country. There are, however, other subsidiary legislations regulating property transactions within the respective 36 states and the Federal Capital territory which include but are not limited to the following:
Last modified 18 Oct 2022
The laws regulating transfer of interests in land apply generally to all categories of real estate.
Last modified 18 Oct 2022
The transfer of title and interests in real property is required by law to be in writing and by deed duly executed by the parties. The parties to the transfer transaction are required to fill and sign the relevant forms of application for consent of the Governor to alienate the interests in real property along with a formal application for registration of the interests.
The payments of applicable statutory transaction taxes and transfer fees such as Capital Gains Tax, Stamp Duty, Consent and Registration fee and other outstanding land charges are required for the registration of the transfer Deeds to lawfully vest title in the real property to the purchaser.
Last modified 18 Oct 2022
There are Land Registry Offices in all states of Nigeria where the registers and records of all real property in urban areas are registered and updated as further real estate transactions occur.
There are however, no registries for title or records of ownership rights for undeveloped lands in rural areas, however, all lands within a state are covered by the geometric survey plans prepared by the State’s Surveyor General and kept in the survey departments of the states where land information confirming state rights and purpose can be obtained by an intending purchaser.
An investor in real estate in a rural land that is unregistered and free from government acquisition may after purchase from the customary owners apply to the State Governor for a direct grant of the right of occupancy.
Title insurance against losses due to defects in owner’s title in real property is not common in Nigeria.
Real estate title records are duly documented in the Register of Deeds securely kept at the respective Lands Registry Offices in the respective states in Nigeria. The register is an authoritative record of the interests in specific properties. All subsequent transfer of interests in real property are registered in the respective files as a charge and record of the transfer of the title to the purchaser or assignee.
Last modified 18 Oct 2022
Upon a satisfactory due diligence by the parties and consensus on the transaction costs, completion of the real estate transaction includes preparing and execution of the relevant documents which depend on the nature of the transfer transaction. The usual documents are Sale and Purchase Agreement, Deed of Assignment or Deed of Lease or Sublease and Power of Attorney (optional).
The application form for Consent of the Governor (or Minister for Federal Government owned titles) signed by the seller or lessor is a mandatory requirement.
Upon execution of the relevant documents and transfer of possession of the property to the purchaser or lessee, the process for obtaining consent of the Governor (or Minister for Federal Government land interests) and registration of the transfer of interests should commence subject to payment of the applicable taxes and fees.
Last modified 18 Oct 2022
Conducting due diligence on title to the property and the capacity of the seller to alienate the interests is the discretion of the purchaser. It is a necessary process to be carried out for the buyer’s protection and it is usual in the transfer of title process for the buyer to instruct a solicitor to conduct due diligence to ascertain the title and interests in the real property, the land use and zoning purpose, external or third party interests, residue or the term of years and the status and capacity of the seller.
Last modified 18 Oct 2022
In Nigeria, the Land Use Act provides that the consent of the Governor is required for any alienation or transfer of interest in real property. In practice, it is after completion of the transfer that consent is process together with the registration of the deed of transfer.
The consent of a partner, joint or co-owner of the interests in real property must be sought for there to be a valid transfer of the title by a seller. A spouse who is a co-owner on the records of title in real property must give consent for any sale to be valid, otherwise spousal consent is not required.
Where the property is owned by a company, the resolution of the members or the directors of the company is necessary for the sale of the interests in the property. Furthermore, the newly passed Companies and Allied Matters Act 2020 provides that a major asset transaction must be approved by members of the Company at a general meeting. A transaction is a major asset transaction where it involves a purchase or sale or other transfer outside the usual course of the company’s business of the company’s property or other rights the value of which, on the date of the company’s decision to complete the transaction, is 50% or more of the book value of the company’s assets based on the company’s most recently compiled balance sheet.
A liquidator duly appointed for a company in liquidation, must give consent to any sale.
All named executors or administrators of an estate of a deceased and upon grant of letters of probate by the High Court must give consent for the transfer transaction to be valid.
Generally, where alienation of the interests in property is subject to the consent of the overlord or head-lessor with the right of reversion, any alienation of the interests or any portion of same must be with the consent as agreed in the agreement for the property.
Last modified 18 Oct 2022
An agreement for the sale of property must be in writing and by deed, it must also state the date of the transaction, details of the parties, describe the exact property, recite the root of title, state the consideration or purchase price, be properly executed by authorized persons and duly witnessed.
The parties are at liberty to agree on the terms of the transaction and the warranties which each undertake to provide to the other party.
The features of typical agreement states the parties full identity and details, the title history of the property, its location and description including the area of land it is comprised, the agreed purchase price and mode of payment (lump sum or instalment), residue of the term of years, sellers warranties to deliver possession, undisturbed enjoyment and assist with all information toward the registration of the buyers interest, delivery of sellers title deeds and other property documents to the buyer, indemnity against defects in title and provision for dispute resolution.
Last modified 18 Oct 2022
There are no sellers’ warranties provided by the law with respect to the state and condition of the building. The parties are at liberty to agree the specific warranties to apply to each party.
Last modified 18 Oct 2022
The buyer is at liberty to treat the agreement as terminated and thereby claim damages. The parties may by their agreement specify the amount of the damages payable by inserting a limitation of liability clause in the agreement.
Generally, the buyer will be entitled to recover damages to cover any losses suffered as a result of the seller’s misrepresentation.
The nature of the misrepresentation will determine the action that the buyer may pursue against the seller. Where upon investigations, the seller is shown to have been deliberately fraudulent in the misrepresentation to the buyer, the Police and other agencies of state may prosecute the seller under the relevant extant criminal laws in the country.
Last modified 18 Oct 2022
The Land Use Act, Companies and Allied Matters Act, Nigerian Investment Promotion Act 1995 and Tax legislations are Federal statutes applicable uniformly. The other legislations are enactments of the respective States, but with similarities in most of the states.
Last modified 18 Oct 2022
The law requires for an environmental impact assessment to be carried out by professionals and a report issued and filed with the relevant town planning and building control agency of the state. The nature of the building construction or development determines whether the environment assessment report is required (Environmental Impact Assessment Act, 1992 and Nigerian Urban and Regional Planning Act No. 88, 1992). This is to ensure that the potential environmental hazards posed by a proposed building development are identified prior to construction and adequate mitigation actions are put in place.
Generally, the owner, tenants and occupiers of property are directly responsible for the environmental sanitation of their premises and it is not an excuse that the pollution or contamination was caused by another person. The federal and state laws impose liability for causing pollution or contamination and impose liability for non-compliance by owners of buildings.
The buyer or owner of real estate has a responsibility for the environment sanitation of the property but will not be liable for any offence where the pollution or contamination to the property is caused by a third party’s action if the owner is not contributory thereto.
Last modified 18 Oct 2022
The permitted uses or purposes for a land or property are usually indicated in the title deeds that are lands certificates or grants directly from the state. Usually the land certificates indicate whether it is granted for ‘residential’, ‘commercial’ or even ‘mixed development’. The lands certificates may sometimes be more specific on the nature of the business to be carried out and building development permitted on the real estate.
It is also prudent for a buyer to apply to the relevant state physical and town planning office for ‘Planning Information’ as to ascertain the land use and zoning for the area where the property is located and the permissible use.
Last modified 18 Oct 2022
A private investor (foreign or local) can negotiate with the government or through the relevant agency for development agreements for specific projects in Nigeria.
The Nigerian government have in recent years actively engaged and promoted development projects and infrastructures through public-private partnerships which it considers as a mechanism to stimulate economic development and growth in Nigeria. Foreign investors are specifically encouraged to invest in the country with the government at all levels with the federal and the state government establishing dedicated offices to ensure the ease of doing business in Nigeria.
The Infrastructure Concession and Regulatory Commission (ICRC) Act 2005 established the Infrastructure Concession Regulatory Commission responsible for regulating PPP processes in Nigeria.
There is the Presidential Enabling Business Environment Council (PEBEC) which was set up to focus on removing bureaucratic constraints to doing business in Nigeria and making the country an increasingly easier place to start and grow a business. Also, the Nigerian Investment Promotion Commission is charged with encouraging, promoting and regulating foreign investments in the country.
Last modified 18 Oct 2022
Only the state (government) can forcibly acquire or expropriate property in Nigeria. Section 28 of the Land Use Act empowers the Governor to compulsorily acquire property where the land is required for overriding public purpose by either the State Government or the Federal Government and compensation is payable to the owner of the land. Where land is acquired by government for overriding public purpose, fair and reasonable replacement costs is payable to the owner as compensation.
The other reason for which property can be expropriated is where the owner of the property is in flagrant breach of the terms or conditions for the grant of the right of occupancy like failure to pay ground rents (land use charges), disregard for town planning and building control regulations and failure to remedy the breach.
Last modified 18 Oct 2022
Real estate sale and purchase transactions are by law subject to taxation. The applicable taxes are the following:
In practice, all transfer taxes and costs are not shared and are paid by the buyer. The Finance Act 2020 grants tax exemptions under the revised provisions of Capital Gains Tax Act for asset transfers among a related party group. A company is recognised as member of a group where it has been part of the group for a minimum of 365 days prior to the reorganisation. Also, the assets must be held by the acquiring company for not less than 365 days to stay exempted from the applicable tax law. Furthermore, the Act in defining the goods that are subject to value added tax exempted transfer of interest in land.
Last modified 18 Oct 2022
Section 2 (2) of the Finance Act, 2021 provides that gains accruing to a person on disposal of shares in any Nigerian company registered under CAMA (irrespective of the real estate asset holding of the company) shall be subject to CGT at 10% of the gains. The exceptions to this rule are:
Furthermore, all documents relating to the transfer of stocks and shares are exempt from the payment of Stamp duties, as provided by the Stamp Duties Act (item 13 of the General Exemption Schedule). In practice, only a nominal stamp duty of NGN 500 is payable as stamping costs for a share transfer agreement in the event that the buyer is required to have the document stamped. It is also noteworthy that the Finance Act 2021 specifically excludes taxable persons from paying value added tax on supplies made as a consequence of the person selling the whole or part of its business. However, this exemption does not apply to companies engaged in upstream petroleum operations as described in the Petroleum Industry Act and Petroleum Profits Tax Act.
Last modified 18 Oct 2022
Do buyers usually carry out due diligence?
Conducting due diligence on title to the property and the capacity of the seller to alienate the interests is the discretion of the purchaser. It is a necessary process to be carried out for the buyer’s protection and it is usual in the transfer of title process for the buyer to instruct a solicitor to conduct due diligence to ascertain the title and interests in the real property, the land use and zoning purpose, external or third party interests, residue or the term of years and the status and capacity of the seller.
Last modified 18 Oct 2022