THINGS TO NOTE IN PROPERTY Flashcards
(94 cards)
1
Q
When is a Deed Required?
A
- All conveyances of land or of any interest therein are void for the purpose of conveying or creating a legal estate unless made by deed.
*SEC 77(1) PCL** - When a contract lacking considerations is to be created i.e gift
- A lease for a term exceeding 3 years
- For vesting declarations-An order appointing new trustees
- POA must be by deed -ABINA V FARHAT
- To vary, modify, revoke, ratify or amend a POA made by deed.
- Voluntary Surrender
2
Q
When a Deed not required?
A
*SEC 77(2) PCL**
1. Assent by person reps
2. Vesting Order of the court
3. Surrender by an Operation of law
4. A lease/tenancy not exceeding 3 years
5. Receipts not required by law to be under seal
6. Disclaimer i.e refusal of a gift of land by the beneficiary
7. Transaction covered by the rule in Walsh v Lonsdale
3
Q
What is Assent?
A
An “assent” refers to the formal act by which personal representatives (such as executors or administrators) of a deceased person’s estate transfer or convey land or property to the beneficiaries entitled to it.
It need not be by deed
4
Q
What is a Disclaimer?
A
A disclaimer occurs when a person refuses or rejects a right, interest, claim or property they are entitled to.
It may be done expressly or impliedly & need not be by deed.
5
Q
Difference between a Vesting Order & Vesting Declaration?
A
A Vesting Order is a court order that transfers the legal title of property or assets from one party to another without the need for a traditional conveyance (like a deed)
A vesting declaration is a formal statement or provision within a deed or other legal document that transfers legal title to property from one party to another. Unlike a vesting order, a vesting declaration does not require court involvement; instead, it is usually made by the parties involved in the transaction.
6
Q
When does a Deed take effect?
A
A deed takes effect from the date when it is DELIVERED & not when it is stated to have been made or executed.
ANUKU V STANDARD BANK
7
Q
Is a deed valid without date?
A
YES! The absence of a date does not negate the validity of a Deed.
AWOJUGBAGBE LIGHT INDUSTRIES V CHINUKWE
8
Q
Is having a seal mandatory for a Deed?
A
NO!
A mere intention to affix the seal suffices!
“Locus Sigilis” was held to be valid in FIRST NATIONAL SECURITIES LTD V JONES
*^SEC 98** of CAMA- Company seal is now optional.
9
Q
Features of a Deed?
A
- It must be in writing
- It must be signed
- There must be an intention that the document is under seal
- Must be delivered, which is an intention to create legal relations
- Attestation
- It must be franked
- Endorsement for Governors consent- S21 & 22
- There must be intention to be bound, that is create legal relationship.
10
Q
Parts of a Deed?
A
- Introductory-CDPR
- Operative-TCRLWAPH
- Miscellaneous-IAC
- Concluding-TSEAF
Remember Cardi’s WAP!🧏🏻♀️
11
Q
Draft the Introductory Part of a Deed?
A
THIS DEED OF ASSIGNMENT IS MADE THIS _____DAY OF _____2024 BETWEEN EKENE MADU of No 16 Kayode Street, Lagos(ASSIGNOR) of one part and
BINTA EKENE of No 10 Taraba Road, Lagos(ASSIGNEE) of the other part.
12
Q
What are the reasons why Deeds are not drafted with date?
A
- Rebuttable presumption as to date-SEC 157 EA
- The requirement of stamping the Deed within 30 DAYS(to avoid paying late stamp duties fees, the date is left out)
- The requirement of registering the Deed within 60 DAYS
- Uncertainty of time in getting the governor’s consent
13
Q
What are Recitals?
A
Recitals are concise statement of fact which give the history or background of the vendor’s acquired right, sought to be conveyed or sold.
14
Q
What are narrative and introductory recitals?
A
Narrative Recitals-states how the vendor acquired his legal right in the property he seems to convey.
Introductory Recitals-indicates the purpose of the document. They recite the ownership of the property and the intention to transfer it.
15
Q
Functions of Recitals?
A
- It can be used in interpreting the operative part of a DEED where there is ambiguity
- It creates estoppels-SEC 169 EA,
- Presumption of Irregularity- Sec 162 EA
recitals contained in documents that are twenty years old or more are presumed sufficient evidence.
16
Q
Draft the consideration & receipt clause of the Operative part of a DEED?
A
“In consideration of the sum of N500,000(Five Hundred Thousand Naira Only) paid by the Assignee to the Assignor, the receipt of which the Assignor acknowledges”
17
Q
What are the functions of inserting a Consideration Clause?
A
a. It is evidence that the conveyance is not a gift
b. It implies that a receipt will be issued to cover the amount received as consideration
c. It is used for the assessment of stamp duties ad valorem
18
Q
What are the functions of Receipt clause?
A
- It is evidence of payment of consideration
- Makes irrelevant the issuance of a fresh receipt
- Sufficient discharge of the purchaser’s liability
- It raises a rebuttable presumption that the purchase price has been paid.
- Evidence of authority of solicitor of Assignor to receive payment
19
Q
What are the implications of a vendor transferring in beneficial capacity?
A
a. Good title
b. Right to convey: that the vendor/assignor has the right to convey the unexpired residue of his interest in the property to the purchaser/assignee
c. Quiet enjoyment
d. Freedom from encumbrances
e. Further assurances
20
Q
Draft a Parcel Clause in a Deed?
A
ALL THAT property located at No 16. Tanko Road Lagos, covered by Certificate of Occupancy numbered ___ and dated ___ and registered as ___ at the Lands Registry Lagos together with all the rights, easements and appurtenances attached to it
21
Q
What is the function of the HABENDUM clause in a Deed?
A
It defines the quantum of interest or quantity of estate to be convened by the assignor/lessor to the assignee/lessee.
The extent of ownership granted.
22
Q
Draft a sample Habendum Clause for Assignment?
A
“TO HOLD UNTO the purchaser for the term of the unexpired residue in the R of O free of all encumbrances subject to the provisions of the LUA 2004”
23
Q
Sample Habendum clause for a Lease Agreement?
A
TO HOLD UNTO the lessee for the term of _____ years, commencing on the _______ day of ________, _________ and ending on the ________ day of __________,
24
Q
What is the effect of the absence of an HABENDUM clause in a lease?
A
It might convert it into an ASSIGNMENT😱
This is because a lease must have a definite start date and an end date, it cannot exist in perpetuity.
UBA V TEJUMOLA
25
What is the purpose of ACKNOWLEDGEMENT FOR PRODUCTION / UNDERTAKEN FOR SAFE CUSTODY clause?
Where a Assignor transfers a part of his land to a Assignee, the Assignor has the right to retain the original title documents.
However there must be an -**ENDORSEMENT** on the Original Title of the fact that a part of the land is sold to the Assignee and
-A clause of **acknowledgement** for production and undertaken for safe custody of the title documents
26
Draft the TESTIMONIUM clause?
“IN WITNESS of which parties have executed the deed in the manner below, the day and year first above written”
27
Particulars of Information needed to draft a deed?
1. Particulars of the assignor (names, occupation address, status)
2. Particulars of assignee (names, occupation address, status)
3. Capacity of the Seller (as a beneficial owner, Attorney etc)
4. Consideration paid in respect of the property
5. Devolution of title of the property
6. Survey plan, local authority and town planning authority of the area.
7. Description/particulars of the property (fittings & fixtures)
8. Particulars of witnesses (names, occupation address, status)
9. Quantum being transferred
10. Covenants
28
What is the Order of Perfection in a Deed?
Consent, Stamping and Registration
29
A major distinction distinction DEED and COS?
Deed is binding upon delivery**(PARTIES INTENTION TO BE BOUND)**
COS is binding upon exchange
30
Why should parties create a Deed?
**A deed of assignment formally and legally transfers rights, property, or interests from one party to another.**
1. **Legal Transfer of Rights**
2. **Clarity and Certainty**: The document clearly outlines the terms and conditions of the assignment, including what is being transferred, when, and under what conditions. This reduces the risk of disputes.
3. **Protection for Both Parties**: The deed protects both the assignor and the assignee by clearly defining their rights and obligations.
4.**Enforceability**: A properly executed deed of assignment is legally enforceable. Failure to fulfill their obligations under the deed, the other party can seek legal remedies.
5.**Transfer of Legal Title**
31
Recite how a Governor’s consent is given?
I CONSENT TO THIS AGREEMENT
……………………. ……………………. ……………
DATED THE 20th DAY OF MARCH 2024
GOVERNOR OF RIVERS STATE
32
What are Transactions in Land?
1. Sale
2. Mortgage
3. Lease
4. Tenancy
33
Cases in Power of Attorney?
**• Abina v. Farhat (1938)**
**• Ude v. Nwara (1993)**
**• Ibrahim v. Obaje (2019)**
**• Chime v. Chime**
34
How is a Power of Attorney issued?
1. Taking instructions from the client & the solicitor prepares a Deed of POA
2. It is a Deed Poll so it is executed by one party.
3. The next step is that it must be attested. Only certain people can attest to a POA.
4. The instrument of POA is then given to the Donee
35
What are the Features of POA?
1. It is an instrument of delegation
2. There is no transfer of interest in land or alienation-**UDE V NWARA**
3. It is usually but not necessarily given for valuable consideration.
4. It is a Deed poll-Can be executed by the Donor
5. It is usually, but not necessarily made by deed or under seal.
36
What is the decision in **BENJAMIN V KALIO** on unregistered land documents?
The fact that a document is unregistered does not **ipso facto**affect such document admissibility.
37
Essentials/Formalities of a POA?
1. It must be in writing(because of attestation)
2. It must be duly executed by the donor
3. Sealing-A POA to execute a Deed must be in a Deed form.**ABINA v FARHAT**
4.Attestation(Not compulsory but it is advisable because it is a Deed Poll)
5.Stamping(POA attracts a fixed stamp duty)
6. Registration(depends on whether it is a registrable instrument in the jurisdiction, it’s registrable in Lagos & Abuja)
7. Governor’s consent(not required because you are not alienating interest)
38
When may a POA be required?
1. Unavailability of the donor
2. The need for expertise i.e an estate solicitor
3. To buy and sell a land on behalf of the donor.
4. It could be used as remedial device for legal mortgage
5. It may be required where the mortgage is by sub demise
6. It may be used to collect rents and proceeds of sale.
7. Ill-health or physical disability of the donor (except mental disability)
39
What is the position of POA under LRL?
-It is a registrable instrument where it transfers interest in land or where it is an irrevocable POA.
Governor’ consent must be obtained before registration in these cases. **S.7 & 57 LRL**
40
Who are the persons that cannot grant a POA?
1. An infant except for contract for his necessities
2. A bankrupt person
3. A person of unsound mind or so declared by a court
4. An unincorporated company
5. A partnership firm
41
Types of POA?
1. General
2. Specific
3. Revocable
4. Irrevocable
42
How can a POA be revoked under a revocable POA?
1. Expressly
2. Impliedly
3. Operation of Law
43
How can Express Revocation be carried out under POA?
1. Orally
2. By writing
3. By Deed
How it was created determines how it will be revoked.
44
When can a POA be implied revoked?
A POA is said to be revoked by implication in situations where the donor makes it impossible for the power to be realized or exercised by the donee to the extent that the power becomes extinguished.
*CHIME V CHIME*
45
Can a donor of POA deal with the POA through implied acts where valuable consideration was given by the donee?
**No! until that consideration is realized.**
Similarly if a POA is executed to a buyer pending the perfection of his title, such buyer cannot carry out significant decisions on the property without the donor’s consent.
46
Where will an implied revocation of POA be inapplicable?
An implied revocation will be inapplicable where a donor grants to another person a POA on the same subject matter, without revoking the existing POA expressly. The subsequent grant CANNOT be taken to be an implied revocation.
47
What is revocation by operation of law in POA?
1. Death of the Donee
2. Insanity
3. Bankruptcy
4. Other legal disabilities
48
When can a POA be irrevocable?
1. Where a POA is given for valuable consideration & it is expressed to be irrevocable.
2. Where a POA, whether given for a valuable consideration or not, is expressed to be irrevocable for a fixed period, not exceeding **12 months**, then it is irrevocable for that fixed period.
3. Statutory Declaration by the Donee(immediately/3 months after exercising the POA)
49
Distinguish between POA & COS in Land Transactions?
1. There is alienation of interest in COS, POA is an instrument of delegation, no transfer of interest in land.
2. POA can be executed by the donor alone, COS must be executed by both parties.
3. POA need not be exchanged before it becomes binding, COS is binding upon exchange.
4. POA does not have mandatory consideration while COS requires mandatory consideration
50
Distinguish between POA & COS in Land Transactions?
1. There is alienation of interest in COS, POA is an instrument of delegation, no transfer of interest in land.
2. POA can be executed by the donor alone, COS must be executed by both parties.
3. POA need not be exchanged before it becomes binding, COS is binding upon exchange.
4. POA does not have mandatory consideration while COS requires mandatory consideration
51
Distinguish between POA & Deed of Assignment?
1. Governor’s consent is required for deed, not required for POA.
2. Deed is executed by both parties, POA is by one person.
3. Deed is an instrument of transfer of ownership, POA is an instrument of delegation.
52
Distinguish between POA & Deed of Assignment?
1. Governor’s consent is required for deed, not required for POA.
2. Deed is executed by both parties, POA is by one person.
3. Deed is an instrument of transfer of ownership, POA is an instrument of delegation.
53
What are the Parts of a POA?
**CDPRAPITE-**
**Commencement**
**Date**
**Parties**
**Recitals**
**Appointment**
**Power/Omnibus clause**
**Irrevocability Clause**
**Testimonium**
**Attestation**
54
What is the omnibus clause in a POA?
**“And to do all things necessary and incidental to the matters above as I may lawfully do”.**
55
features of oral lease?
1. The Lessee must take possession.
2. It must reserve the best rent in the area. S.79(2) PCL; (not premium or rack rent i.e., the rent must not be paid in advance or in lump sum)
3. It must be for a period not exceeding 3 years
56
disadvantage of oral lease?
• For a party alleging an oral agreement, he is duty bound to prove such an agreement to the hilt.
**Odutola v. Paper Sack (Nig)**
57
modes of creating lease?
1. Oral or Parole Lease
2. Written Leases
3. By Deed
4. By Acts of Part Performance
5. By Way of Equitable Lease
58
what is equitable lease?
An agreement to create a lease will still operate as a lease notwithstanding that it is not created under seal.
59
features of a valid lease?
1. Certainty of Terms
2. Certainty of Property
3. Certainty of Parties
4. Exclusive Possession
5. Proper Mode of Creation
60
what is lease of reversion?
Runs concurrently with an existing lease
61
what is lease in reversion?
begins at the expiration of a current term, consecutively.
62
what happens when a lease expires and the lessor continues to collect rent?
Where a lease has expired but the lessor continues to accept rent, the lessor would be deemed to have renew the lease on the same terms & rent as the expired lease.
63
is it mandatory for a landlord to issue receipts?
YES! It is mandatory for the landlord to issue receipt to the tenant upon payment of rent.
• Where the landlord fails to issue such receipt, he is liable to a fine of N100,000.
Tenancy law of lagossssss
64
what is ground rent?
This is the rent paid on the land/ground itself whether or not it is developed.
• It is payable by the landlord
65
what is RACK RENT (ECONOMIC RENT)?
This is the economic rent payable for the land and the improvements and development on the land.
• It is also called Economic Rent.
• It represents the full value of the property
66
what is premium rent?
This is a lump sum paid in addition to the other rents. it is an advanced payment made by the tenant to the landlord
• It is regarded as a fine and as such is prohibited in some States in Nigeria
67
Applicability of tenancy laws of Lagos?
The Tenancy Law of Lagos applies to business and residential premises only.
• The law does not apply to residential premises:
a. Owned and operated by educational institutions for its staffs, and student
b. Provided for emergency shelters
c. in hospitals or mental health facility
68
is payment of rent in advance permissible in Lagos?
NO UNDER TENANCY LAWS OF LAGOS
a. Rents in excess of 6 months for a monthly tenant
b. Rents in excess of 1 year for a yearly tenant
69
Under the RC and Recovery of Residential Premises Law, it is unlawful for a person to pay, or for a landlord to receive?
1. 3 months for individual tenants
2. 12 months for commercial & institutional tenants
70
disadvantages of payment of rent in advance?
1. Inflation
2. it is not lawful. **SEC 4 tenancy laws of lagos state**
3. it is taxable
71
FACTORS TAKEN INTO CONSIDERATION IN FIXING RENT?
1. Inflation
2. Economic situation
3. State of the demised premises
4. Statutory provisions.
5. Tax implications
6. Use to which the property will be put
7. Development of the property
72
Types of covenants in a lease?
1. Usual Covenants,
2. Implied Covenants, and
3. Express covenants.
73
example of implied covenant?
1. Covenant to to commit waste
2: Covenany to peaceful enjoyment
3. Covenant to keep the demised property in tenantable condition
74
examples of express covenant?
1. Covenant to insure
2. User covenant
3. Covenant to pay rent
4. covenant not to sub let
5. Covenant to pay rates and taxes
6. Option to renew
75
when is sub lesse and sub lessor used?
Where the LEASE EXCEEDS 3 YEARS AND property is covered with a C of O
-Where the lesse sublets to a third party.
76
what happens where there is no user covenant?
• Where the lease is silent as to user, the tenant can use the demised property for any **lawful purpose** notwithstanding that it is a purpose not originally contemplated.
**DAWODU V ODULAJA**
77
importance of user covenant?
1. To keep the property in tenable condition
2. To protect the reversionary interest of the lessor
3. To ensure that it is used for lawful purposes
4. To protect the property for depreciating
5. To protect the neighbor.
78
remedies for breach of user covenant?
1. Action for injunction to prevent a contrary use
2. Action for damages to compensate for misuse of the premises
3. Action for forfeiture and re-entry IF it is provided for in the lease.
79
draft for user covenants?
**“The lessee covenants to use the demised premises for lawful commercial purposes only.”**
80
how is rent payable?
• It is payable in arrears except agreed by the parties that it should be paid in the advance.
81
What is covenant to pay rent also known as?
REDDENDUM
**YIELDING AND PAYING during the said term granted, the rent of ...N500, 000...
subject to review in accordance with the provisions contained in the schedule attached to this lease.**
82
what is rent review clause?
It allows the rent to be reviewed periodically
according to prevailing market rates.
83
contents of rent review clause?
1. Method of initiating the review
2. Mode of calculating the review
3. Time frame for the review
4. Dispute resolution
84
option to renew clause?
This is a lessor’s covenant made to the lessee that at the expiration the lease, another lease may be created on similar or reviewed terms, rents and covenants.
• It does not automatically create new term, it is just an offer which must be accepted in its entirety by the lessee, if he chooses to renew.
85
Contents of OPTION TO RENEW?
1. Time within which the application is to be made
2. Manner of the exercise,
3. Condition precedent to be fulfilled before exercise of the option
4. Terms of the new lease.
86
covenants to pay rates and taxes?
To pay all rates, taxes, duties and outgoings, payable now or as maybe be subsequently imposed on the property in the future, whether payable by the owner or by the occupier”
87
contents of covenant to insure?
1. Who is to insure
2. Risk to be insured
3. Amount of insurance cover
4. Application of the insurance money
88
what happens where there is no covenant to sublet?
• In Lagos, where the lease is silent, the tenant is automatically prohibited from assigning or sub-letting any part of the demised premises without the Landlord’s consent.
**Section 7(6) of the Tenancy Law, Lagos**
89
particulars of instructions needed to create a lease?
1. Name and Addresses of the Lessor & Lessee
2. Commencement date
3. Description of the property
4. Duration of the lease
5. Use of the Property.
6. Rent payable and method of payment; whether in advance or arrears
7. Covenants to be performed by the Lessor/Sub-Lessor
8. Covenants to be performed by the Lessee/Sub-Lessee
9. Witnesses to attest the agreement
90
how is a lease determined?
1.Effluxion of time
2. Merger-where the lessor transfers all his unexpired residue to the lessee
3. Surrender
4. By an operation of law
5. Notice to quit-when issued.
91
Draft a reddendum clause?
YIELDING AND PAYING yearly during the term the rent of N20, 000 clear of all deductions by yearly payments in advance, the first of such payment to be made on the 24th day of May, 2020.
92
advantages of preliminary enquires?
1. It helps to disclose certain defects on the property
2. It ascertains the suitability or otherwise of the proposed property
3. It helps to determine whether to negotiation or not
93
who pays capital gains tax?
Every person who disposes property (Assignor) is to pay, except persons in **Section 26 & 27 CGTA**
• Ideally because it is the transferor (person who disposes property) that is benefiting, and he should pay but because payment of the tax is a condition precedent to perfection of title, it is the transferee in practice that pays.
94
draft for contract of sale?
"This contract of sale is conditional on the purchaser obtaining a mortgage loan from First Bank of Nigeria Ple. in the sum of N150, 000, 000 (One Hundred and Fifty Million Naira Only) to be repaid through equal monthly instalments over a period of 2 years with interest at the rate of 21% per annum on the security of the property, PROVIDED that where the loan is not obtained on completion, this contract of sale shall become void and the purchaser shall be entitled to a return of the deposit paid."
