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Some Tips on Land Documentation for Home, Housing, Building Construction in Nigeria

According to existing land policy in Nigeria i.e. Land Use Act of 1978, the legal title to the land is the statutory right of occupancy and customary right of occupancy in respect of urban and rural land respectively and the right is evidenced by a Certificate of Occupancy (C of O).

In the case of land that has registered title, if there is any transfer, the Land Use Act again requires the consent of the Governor. This means, if the consent of the governor has not been obtained to an assignment of legal title on land, such transfer is voidable.

Land documentation can also be done for land that had been acquired by government but upon which individual or group have trespassed and built houses. This is known as Ratification

2.2.1       PROCEDURE FOR CERTIFICATE OF OCCUPANCY (PRIVATE LAND)

The promulgation of Land Use Act 1978 introduced the new improved title document tagged certificate of occupancy. The Governor grants statutory rights of occupancy in respect of urban land while the local Government grants customary right of occupancy in respect of rural land.

In Oyo as in similarity to any other state, there are procedures that must be followed before the certificate is issued. The procedures in respect of private certificate of occupancy include the following steps

(1)     LAND INFORMATION

The applicant for a Certificate of Occupancy should first apply for Land Information to ascertain whether the land is within government acquired/revocation area or free from government acquisition. The procedure for obtaining Land Information is as follows:

(1)                Application should be made to the Surveyor General for Land Information.

(2)                The application should be supported by survey plan (paper copy)

(3)                Receipt of payment for Land Information

Upon the issuance of the Land Information which shows that the land is free from government acquisition, the applicant is at liberty to obtain the form for certificate of occupancy (private) with the following documents and relevant fees paid (receipt attached)

(i)          Purchase Receipt duly stamped

(ii)        Development levy (for state and only)

(iii)      Tax Clearance Certificate (3 years)

(iv)      Survey Plan ( 1 original and 7 copies)

(v)        Recent passport Photograph

(vi)      Building plan if the land is already developed

(vii)    Land Information certificate

(viii)  Charting and endorsement fee

The application is submitted to Land department through the office of Director of Land for processing where a file is opened with reference number. The file is then forwarded to Survey Directorate for charting to confirm the information that the land is free.

2.    PUBLICATION

Upon confirmation that the land is free, the application for the certificate of occupancy is published in the Newspaper for any possible objection(s) by the members of the public. If there is no objection within Twenty Eight days of the publication, the application proceeds to the next stage – Inspection

3.    SITE INSPECTION

The purpose of the inspection is just to confirm that the survey plan submitted is in accord with the land. The assigned officer will invite the applicant or his representative for the site inspection. The officer will also check the pillar/beacon numbers.

The officer at the end of the inspection will write a site inspection report. The report is sent to the Director of Land services for approval. The file then moves to the office of Permanent Secretary of the Land Bureau for final approval. Thereafter the file moves for preparation of the certificate of occupancy and signing.

4.    GOVERNOR’S SIGNATURE

The Governor may appoint any commissioner or any officer through the official gazette to sign the certificate of occupancy.

5.    STAMP DUTY

The law requires that instruments such as certificate of occupancy (land title) attract stamp duty. The document will be sent to Board of Internal Revenue for necessary stamping, after which the file will then be sent to Registrar of Title for registration

6.    REGISTRATION

There is a requirement that the instrument be registered under the Registration of Title Law. A registration number will be given to the certificate after registration. The file with the certificate is then sent to the land use and allocation directorate for collection.

7.    COLLECTION OF THE CERTIFICATE

The final stage in the processing of the application for certificate of occupancy is the collection of the certificate. The certificate should be released to the person whose photograph appears on the certificate for security reasons.

2.2.2      APPLICATION FOR STATE LAND

The prospective applicant for state land will be required to purchase the application form at a prescribed fee. The amount varies depending on the scheme. The applicant is expected to fully fill the form and submit with the following documents.

(1)                Receipt of Payment

(2)                Recent passport photograph

(3)                Tax clearance certificate

(4)                Development levy

In case of a company, the following documents are required.

(i)          Certificate of Incorporation (photocopy)

(ii)        Tax clearance certificate of two directors.

The form is to be submitted to the Land Services Department, (the Land Use and Allocation Committee) whose duty is to advise the Governor to allocate or not to allocate the land to the applicant. Where the application succeeds, letter of allocation will be issued accordingly. The letter of allocation usually states the amount to be paid as land charges, development levy etc on such allocation. After payment, a certificate of occupancy is prepared in favour of the applicant.

2.2.3      GOVERNOR’S CONSENT TO ASSIGNMENTS

The Land Use Act of 1978 requires every holder of a right of occupancy whether actual or derived grant to obtain the consent of the Governor before alienation. This means that when a land holder transfers his interest in land to another person without the consent of the Governor, the title as transferred could be useless as it cannot be used to secure loan neither can such land be developed with loan capital. In fact any further dealing with such land or title is voidable. I therefore consider it proper to recount the procedure for obtaining Governor’s consent.

I      APPLICATION FOR GOVERNOR’S CONSENT TOA DEED

The application for Governor’s consent is done by purchase of application form at a prescribed amount from the department of Lands. The duly filled application form is to be accompanied with the following

(i)          Certified true copy of the Assignor’s title documents

(ii)        Tax clearance of both parties

(iii)      Passport photograph of both parties to the assignment

(iv)      Development levy (if applicable)

(v)        10% of the consideration as consent fee

(vi)      Copies of the deed of assignment

(vii)    External Valuation report

(viii)  Ground rent

(ix)     Survey plan of the site

(x)       Photograph of the site

In Oyo state the consent fee as well as other charges is based on the internally assessed value of the subject property by the Land officer as against the external valuation report submitted by the applicant.

It is worthy to note here that the Lagos state government came up with flat rate, for different locations, to be used in assessing the value consideration of the transaction instead of the price reflected in the deed and instead of the valuation of the property (just to eliminate fraud). Again, payment of land use charge introduced by Lagos state will suffice for tenement rate or neighborhood improvement charges requirement in Lagos as these charges are included in the ‘one stop payment’ land use charge.

Upon submission of all the relevant documents to the Directorate of Land Services office, a file is opened and assigned to an officer for necessary actions.

II     CHARTING

The charting of the plan is usually to ascertain the status of the property. The file will be sent to the Survey Directorate to confirm whether the subject land/property is within government acquisition or not. For free land, the file is sent to Lands for further actions.

III   SITE INSPECTION

Once the property is free, the designated officer then conduct a joint site inspection with the agent or solicitor handling the consent. The officer writes a report wherein the value of the property is stated and forwards the report to the Director who will approve or reject the report. Where the report is approved, the applicant will be informed of the balance of consent fee to be paid (if any).

IV   CAPITAL GAIN TAX

On full payment of consent fee, the file is sent to the office of the Permanent Secretary of Lands for transmission to Ministry of Finance for assessment and payment of Capital Gain Tax (5%) of the assessed value.

V     FINAL ENDORSEMENT

As soon as the capital gain tax is paid, the file is sent to the Attorney General’s chambers for final endorsement on behalf of the Governor. Thereafter, the document will go for stamp duty and registration before it is forwarded to Land department for collection.

2.2.4      RATIFICATION

This is a process where someone who has unknowingly bought a piece of land that falls within the government acquired land (under acquisition) seeks governor’s consent and recognition of the landholder. If the government is not really in need of the land and decided to release it, the holding will be ratified and the consent of the governor will be granted to the applicant. The procedure normally follows application for governor’s consent.