When buying land or property in Nigeria, two documents that frequently appear in property transactions are the Deed of Assignment and the Certificate of Occupancy (C of O). Because both documents are associated with land ownership and title, buyers sometimes assume that they serve the same purpose. They do not. A Certificate of Occupancy and a Deed of Assignment perform different legal functions. A Certificate of Occupancy is evidence of a right of occupancy granted or recognised under the applicable land law, while a Deed of Assignment is an instrument used to transfer an existing interest in land from one person to another. Understanding the difference is important because having one document does not automatically eliminate the need for the other. What Is a Certificate of Occupancy? A Certificate of Occupancy is a formal document evidencing a right of occupancy over land. Under the Land Use Act, the Governor has powers relating to the grant of statutory rights of occupancy, while the holder of a statutory right of occupancy is subject to the conditions applicable to that right. A Certificate of Occupancy can therefore serve as important evidence of the holder’s interest in the property. However, a Certificate of Occupancy should not be treated as an automatic and conclusive guarantee of ownership in every circumstance. The Court has held that a Certificate of Occupancy issued under the Land Use Act is not conclusive evidence of a valid title. It is prima facie evidence of the interest or title stated in it and can be challenged where another person establishes a better title or where the grant itself is defective. See Adole v. Gwar (2008) 11 NWLR (Pt. 1099) 562. This is why a buyer should investigate the root of title even where the seller presents a Certificate of Occupancy. For more information, see “How to Verify a Certificate of Occupancy in Nigeria.” What Is a Deed of Assignment? A Deed of Assignment is a legal instrument by which a person transfers an existing interest in land to another person. The person transferring the interest is the Assignor, while the person receiving the interest is the Assignee. For example, where a person holding an interest in a property sells that interest to a buyer, the transaction can be documented through a Deed of Assignment. The deed normally identifies the parties, describes the property, states the consideration and contains the operative provisions by which the relevant interest is assigned. For a detailed explanation, see “Deed of Assignment in Nigeria: What Buyers Need to Know.” The Main Difference Between a Deed of Assignment and a Certificate of Occupancy The simplest way to understand the difference is this: A Certificate of Occupancy evidences a right of occupancy, while a Deed of Assignment documents the transfer of an existing interest from one person to another. They therefore answer different questions. A Certificate of Occupancy primarily addresses: What right of occupancy has been granted or recognised in respect of the property? A Deed of Assignment addresses: What interest is being transferred from the existing holder to the new holder? The documents can therefore appear together in the same property transaction. Deed of Assignment vs Certificate of Occupancy: Key Differences Issue Deed of Assignment Certificate of Occupancy Primary function Transfers an existing interest Evidences a right of occupancy Typical parties Assignor and Assignee Government and holder/grantee Usually arises from Sale or other transfer Grant or recognition of right of occupancy Identifies transaction between parties Yes Not primarily Shows purchase transaction Yes No Shows right of occupancy Through the interest being assigned Yes Requires investigation of root of title Yes Yes May involve Governor’s Consent Yes, where required It is itself connected to the grant of a statutory right of occupancy Requires registration/perfection Yes, as applicable It is itself a title document Automatically proves indefeasible ownership No No Does a Certificate of Occupancy Replace a Deed of Assignment? No. A Certificate of Occupancy and a Deed of Assignment are not interchangeable documents. Suppose Mr A holds a property evidenced by a Certificate of Occupancy and later sells his interest to Mr B. The Certificate of Occupancy does not itself document the sale from Mr A to Mr B. The transaction transferring Mr A’s interest to Mr B must be properly documented. Depending on the circumstances, this includes a Deed of Assignment and the applicable consent, stamping and registration processes. The buyer should therefore not assume that receiving the seller’s original Certificate of Occupancy means that the buyer has completed the transfer of the property. Does a Deed of Assignment Replace a Certificate of Occupancy? Not necessarily. A Deed of Assignment does not automatically become a Certificate of Occupancy merely because it has been executed. The deed documents the transfer of the Assignor’s interest. The buyer’s title must then be considered in light of the nature of the interest transferred, the root of title, applicable land law and the required perfection process. The documents forming the chain of title can therefore remain important after the transaction. Can You Buy Property With Only a Certificate of Occupancy? A Certificate of Occupancy is an important title document, but the existence of a C of O does not mean that the buyer should dispense with due diligence. The buyer should investigate: The identity of the registered or recognised holder; The root of title; The property’s location and boundaries; Existing mortgages or charges; Pending litigation; Government acquisition; Restrictions affecting the property; Whether the document is genuine; Whether the seller has authority to sell. The Court has repeatedly recognised that a Certificate of Occupancy is not conclusive proof of title where a better title or defect in the grant is established. See “How to Verify Land Title Before Buying Property” before committing to a purchase. Can You Buy Property With Only a Deed of Assignment? A Deed of Assignment should also not be treated in isolation. The buyer must determine what interest the Assignor actually had and whether that interest was capable of
Governor’s Consent in Nigeria: When Is It Required?
Governor’s Consent is one of the most important concepts in Nigerian land transactions. Buyers, sellers, developers and property investors frequently encounter the requirement when land or property is being transferred. A common mistake, however, is to assume that Governor’s Consent is required for every transaction involving land or that every property without a Governor’s Consent is automatically worthless. The legal position is more specific. Under the Land Use Act, the requirement principally arises in connection with the alienation of a statutory right of occupancy. Understanding when consent is required, what transactions trigger it and the consequences of failing to obtain it is essential before buying, selling, mortgaging or transferring property in Nigeria. What Is Governor’s Consent? Governor’s Consent is the consent of the Governor required under the Land Use Act for certain dealings with a statutory right of occupancy. Section 22(1) of the Land Use Act provides that the holder of a statutory right of occupancy granted by the Governor cannot alienate the right, or any part of it, by assignment, mortgage, transfer of possession, sublease or otherwise without first obtaining the Governor’s consent, subject to the exceptions contained in the Act. The requirement is therefore connected to the alienation of a statutory right of occupancy. It is not simply another document that every landowner must obtain before owning or possessing land. When Is Governor’s Consent Required? Governor’s Consent is generally required where the holder of a statutory right of occupancy seeks to alienate the right or an interest in it. This includes several important transactions. 1. Assignment of a Statutory Right of Occupancy An assignment involves the transfer of the holder’s interest in land to another person. For example, where A holds a statutory right of occupancy and agrees to transfer his interest in the property to B, the transaction will generally require the Governor’s consent under section 22 of the Land Use Act. This is one of the most common circumstances in which buyers encounter Governor’s Consent. 2. Mortgage of a Statutory Right of Occupancy Governor’s Consent is also relevant where a statutory right of occupancy is mortgaged. A property owner who wishes to use the property as security for a loan should therefore consider the applicable consent requirements before creating the mortgage. The Land Use Act contains a specific exception concerning the creation of a legal mortgage in favour of a person where an equitable mortgage over the right of occupancy has already been created with the Governor’s consent. 3. Sublease The grant of a sublease over land covered by a statutory right of occupancy can also require Governor’s Consent. Section 22 expressly includes sublease among the transactions requiring consent, while section 23 deals specifically with sub-underleases. 4. Transfer of Possession The requirement is not limited to documents labelled “Deed of Assignment.” Section 22 refers expressly to the transfer of possession and to alienation “otherwise howsoever.” The substance of the transaction therefore matters. A party should not assume that simply changing the name or form of the transaction eliminates the statutory requirement. When Is Governor’s Consent Not Automatically Required? Not every dealing with land falls under section 22. The requirement should be examined in light of the nature of the interest and the transaction. Customary Rights of Occupancy Customary rights of occupancy are dealt with separately under section 21 of the Land Use Act. Section 21 provides that a customary right of occupancy cannot generally be alienated by assignment, mortgage, transfer of possession, sublease or otherwise without the requisite consent or approval. For transactions other than the specified court-sale situation, the approval of the appropriate local government is required. Accordingly, it is incorrect to treat every land transaction in Nigeria as if section 22 automatically applies. The nature of the right of occupancy must first be established. Does Every Deed of Assignment Require Governor’s Consent? A Deed of Assignment involving the alienation of a statutory right of occupancy will generally require the relevant consent. However, the fact that a document is called a “Deed of Assignment” does not by itself answer every question about the transaction. A lawyer should establish: The nature of the interest being transferred; The root of title; Whether the interest is statutory or customary; Whether the transaction constitutes an alienation; Whether a statutory exception applies; The applicable state land administration requirements; and The steps required to perfect the transaction. This is particularly important because land transactions can involve different interests and stages of title. What Is the Difference Between a C of O and Governor’s Consent? A Certificate of Occupancy and Governor’s Consent serve different purposes. A Certificate of Occupancy is generally evidence of a grant or recognition of a right of occupancy. Governor’s Consent, on the other hand, concerns the required consent to a subsequent alienation of a statutory right of occupancy. For example, a person may hold a Certificate of Occupancy and subsequently sell or assign the property to another person. The subsequent assignment can trigger the requirement for Governor’s Consent. Therefore, a buyer should not assume that seeing the seller’s C of O means that the buyer’s acquisition is automatically perfected. Why Is Governor’s Consent Important to a Buyer? Suppose a seller shows a buyer a valid C of O. The buyer pays the purchase price and receives a Deed of Assignment. That does not necessarily mean that all statutory requirements relating to the transfer have been completed. Where the transaction requires Governor’s Consent, the consent forms an important part of the process of perfecting the buyer’s interest. This is why property buyers should consider not merely whether the seller has title, but also how the buyer’s own interest will be legally transferred and perfected. What Happens If Governor’s Consent Is Required but Not Obtained? Where Governor’s Consent is required under section 22 of the Land Use Act and the parties proceed to alienate a statutory right of occupancy without first obtaining the required consent, the transaction is null and void by virtue of section 26 of the Act.
How to Verify a Certificate of Occupancy in Nigeria
A Certificate of Occupancy (C of O) is one of the most important documents encountered in Nigerian land transactions. It is often presented to prospective buyers as evidence that a property is genuine and safe to purchase. However, a Certificate of Occupancy should not be accepted at face value. A document can appear genuine and still require further investigation into the identity of the holder, the property it covers, the root of title, the status of the land and any interests or encumbrances affecting it. Before buying land or property, a buyer should therefore independently verify the Certificate of Occupancy and the title upon which the seller relies. What Is a Certificate of Occupancy? A Certificate of Occupancy is a document evidencing a grant or recognition of a right of occupancy over land under the applicable land administration system. Under the Land Use Act, land in each state is vested in the Governor to be held in trust and administered for the use and common benefit of Nigerians, subject to the provisions of the Act. The Act provides for statutory rights of occupancy and customary rights of occupancy, depending on the circumstances and location of the land. A C of O therefore relates to a right of occupancy. It should not automatically be understood as an absolute and indefeasible guarantee that the person presenting it has an unchallengeable title to the land. Does a Certificate of Occupancy Prove Ownership? Not necessarily. A C of O is important evidence concerning a person’s interest in land, but a buyer should still investigate the history of the title and the circumstances in which the document was issued. The Supreme Court has repeatedly emphasised the importance of examining the root and validity of title in land disputes. The legal effect of a particular C of O also depends on the circumstances surrounding its issuance and the competing interests, if any, affecting the land. This is why a buyer should not make the mistake of saying: “The seller has a C of O, so there is nothing else to check.” The existence of a C of O is a reason to conduct proper verification, not a reason to stop conducting due diligence. Why Should You Verify a Certificate of Occupancy? Verification helps establish whether: The C of O was actually issued by the relevant authority; The document corresponds with the property being sold; The named holder is the person claiming ownership or the right to sell; The property description corresponds with official records; The land is affected by an earlier interest or transaction; There are registered encumbrances affecting the property; The land is affected by government acquisition or other restrictions; The purported title is genuine; and The seller has the legal authority to transfer the interest. A buyer who skips these checks can discover serious problems only after completing the transaction. How to Verify a Certificate of Occupancy in Nigeria The precise procedure depends on the state in which the property is located because land administration is handled through the relevant state authorities. However, the following steps provide a practical framework. 1. Obtain a Clear Copy of the Certificate of Occupancy Start by obtaining a complete and legible copy of the C of O from the seller. Do not rely solely on photographs, screenshots or verbal descriptions. The document should be examined carefully for the information necessary to identify the property and the holder of the interest. Pay particular attention to: Name of the holder; File or registration number; Date of issue; Plot number; Block number where applicable; Location; Size or area; Survey information; Term of the right of occupancy; Conditions attached to the grant; and Other identifying particulars. These details should subsequently be compared against official records. 2. Conduct an Official Search The most important step is to conduct an independent search with the relevant land registry or land administration authority. A search can help determine whether the C of O appears in the official records and whether the information contained in the document corresponds with those records. In Lagos, for example, property-related searches and land administration services are handled through the state’s land administration system. A buyer should use the appropriate official channel rather than relying on a seller’s private verification or an agent’s assurance. 3. Compare the C of O With Official Records The information contained in the document should be compared against the information held by the relevant authority. Check whether: The document number corresponds with official records; The named holder matches the registered interest; The property description matches; The location corresponds; The survey information corresponds; and The dates and other relevant particulars are consistent. Any material inconsistency should be investigated before the transaction proceeds. 4. Verify the Survey Information The survey details on the C of O should correspond with the land being offered for sale. This is particularly important where a seller is showing a buyer a physical parcel of land while relying on a C of O relating to another property. A survey professional can assist in confirming the location and coordinates of the property. Where necessary, the relevant survey records should also be checked with the appropriate government authority. 5. Confirm the Identity of the Holder The name on the C of O should be compared with the person claiming to own the property. If the seller’s name differs from the name on the C of O, the seller should explain the legal basis for the transaction. For example, the seller could be relying on: A Deed of Assignment; A subsequent transfer; A Power of Attorney; Probate or Letters of Administration; A corporate transaction; or Another legally recognised interest. The buyer should verify the entire chain rather than simply accepting the explanation. 6. Investigate the Root of Title A C of O does not eliminate the need to investigate the root of title. Where the property was previously owned or held by another person, the documents establishing the transfer or derivation of the present interest should