Sale of land scenario

MrsAjebutter of 22 Ikoyi rod, VI Lagos has concluded plans to sell her house in Port Harcourt to Chief IGWE MUSA of 66 Aba road Port HarcourtRivers state.

5 difference between sale of land transaction in Zamfara state and similar in Apapa Lagos

1. Online procedure in Lagos, Zamfara you have to go there physically and register
2. LRL Lagos 2015 would regulate the transaction in Lagos, CA in zamfara
3. Uses of power of attorney differs in both states
4. Difference as to submitting survey plan for title, in Lagos it is compulsory to submit survey plan but outside Lagos this is different. If the schedule to the deed of assignment gives sufficient particulars you don’t need to submit survey plan
5. Registration of title combines reg. of transaction, title and document in Lagos, in Zamfara it is strictly registration of documents

 

The steps the lawyer would take to inspect title are as follows: 

1. Collect abstract of title and epitome of title and examine
2. Conduct search at the land registry
3. Physical inspection
4. Investigation of family back background of traditional history
5. Raise requisition
6. Draft search report

The purpose of investigation to ascertain the genuineness of the title of vendor, to ensure there are no encumbrances on that title or right to convey

 

Question: Comment briefly on the need of exchange of contract and List any five implication/consequences of exchange of contract

1. Risk passes to the purchaser
2. The purchaser has equitable title
3. Legally binding contract comes into existence that not even the death of the vendor
4. The vendor becomes a qualified trustee and
5. The vendor has a lien for the balance of purchase price

 

The need: this process becomes necessary where the parties are represented by the different solicitors but where the parties have the same solicitor you don’t need to exchange contract

 

Question: State the legal effect of a seller of land conveying his interest as a beneficial owner. How would your answer be affected if he conveys his title as a lessee? 

There are 4 for beneficial owner: further assurances, he has right to convey, no encumbrances

Conveying as a lessee means 6 covenants are implied

 

Comment briefly on the differences on the vendors lawyer receiving the deposit between an agent and an interpleader.

If he receives the money as a stakeholder it means he has become an interpleader or trustee and is liable to pay the money into a trust account or client account and must not mix the money with his own and he is not liable to pay the money to anybody immediately and is liable to pay the money only to the party that would be rightly entitled to it at the end of the transaction. If he misappropriates it he is personally liable and would not pay any interests

 On the other hand the vendor becomes immediately entitled to the money  and he should hand it over unless the vendor otherwise instructs. If he (lawyer) misappropriates the money the vendor is liable to the purchaser and then the vendor can the institute an action against the lawyer

 

Assumingyou’re solicitor to Mrs Ajebutter describe briefly the steps or how you would deduce title to the property and state the documents required for this purpose. What is the purpose of deducing title.

1. The vendor simply need to prepare the abstract and epitome of title detailing all the transaction that have taken place over the title over a period of time depending on the jurisdiction. b) Epitome of title and abstract of title c) The essence of deducing is to establish that they have a good root of title

 

Assuming you’re solicitor to a purchaser in a sale transaction and you have just concluded search and investigation on the vendor’s title. Mention in the correct sequence the contents of the search report you would prepare and submit to your client

• The lawyers letter head
• Reference number
• Date of the report
• The clients name and address
• Salutation
• Heading of the report: report of search of the property
• Introductory paragraph: kindly find
• Date of the search
• Place of search
• Name of the owner
• Nature of the interest
• Particulars of the property: what is used to prepare the parcels clause. Description, location and registration of the property
• Encumbrances if any
• Opinion of the lawyer
• Conclusion: complimentary close – yours faithfully/yours sincerely, signature, name

 

Mention any 4 additional documents that may be required to be submitted for purposes of perfection of title where a corporate body is a party to the transaction.

• CTC of the certificate of incorporation
• CTC of the memo and articles of association
• Tax clearance certificate of at least two directors
• Form CAC 1.1 for particulars of directors

 

Mention all the instances in which attestation and actual sealing are mandatory in a deed or other document of transfer of interest in land. Note that this question broken down into two parts

1. a) Attestation is mandatory in a deed or other document of transfer of interests of land where:

• Where an illiterate is involved
• Where a blind person is preview to the party
• Where a corporate body is a party
• For power of attorney executed in one country for use in another country

1. Actual seal is mandatory where a corporate body is a party to the transaction.

 

What is the main reason why a solicitor should advise his client to leave his deed undated and when does an undated deed take effect.

 

LEASES

Madam Aduke of 56 Uko lane Ikeja Lagos intends to grant a term of 7 years in respect of her property at 23 Igu street Ikoyi Lagos to John John Nigeria limited of 67 marina Lagos.

 

Mention the contents of a standard insurance covenant in a lease and state any 4 factors that may be considered to determine who should bear the burden of insurance in a lease.

The contents of an insurance covenant:

• Who to insure
• Amount of cover
• Application of insurance money
• Who is the underwriter
• Risk to be insured against

 

Factors that would be considered to determine

Existing obligation

Nature of the use of property itself

Nature of the property itself

Other provision

 

 

Draft a standard covenant against assignment to be inserted into the lease and state the effect of failure to insert such covenant in a lease

s.7 Tenancy law implies the covenant against assignment  in lease means that the

Tenancy law doesn’t apply to any premises used as a rehabilitation center, school or hospital

 

Draft the clause to pay rates, taxes or outgoings

 The lessee covenants to pay the lessor all taxes, ….

 

Assuming you’re solicitor to madam Aduke and you have been briefed to draft the lease explain why you should exclude the rent clause and option to renew clause itself while drafting the option to renew clause

Its better to exclude the rent clause - To have the opportunity of negotiating a new rent because when a rent is renewed upon an option to renew it is renewed on the same terms and conditions of the former lease.

Option to renew clause –

 

What are the factors madam Aduke would take into consideration in charging or fixing rent. And comment briefly on why you would advise madam aduke against charging too many years in advance

 

Contents of a rent review clause and purpose

Purpose – to take advantage of the capital appreciation on the property.

Contents:

1. Method of initiating the review
2. Period of review
3. How to calculate the rent
4. How to settle/resolve any dispute that arises/ ADR clause

 

State the factors madam Aduke would take into consideration in determining whether or not to grant consent to sub-let

• Use to which the property is to be put
• The personality of the proposed sub-lessee

 

Assuming the

Now this deed witnesses as follows:

In consideration of the rent and covenants reserved in this lease, the lessor as beneficial owner demises unto the lessee ALL THAT property at 23 Igu street Lagos, Nigeria covered by/ Registered……………..to hold the same for a term of 7 years commencing on ………..and ending …………; paying annually in advance , a rent of 3 million naira free of all deductions

 

MORTGAGES

Chief Musa took a loan of 200 million naira from GTbank he intends to use the property at 24 agu lane Abba Abia State for security of the loan. Answer the following question 38-49

 Give Gtbank why he should adopt sub-demise instead of assignment in creating a legal mortgage over the property

• He is not bound by any restrictive covenant attached to the land
• It is uniform over the world
• Reversionary interest in

 

Assuming the property is in Ibadan Oyo state advise the bank on the options available to the parties in creating a legal mortgage what would be your answer if the property is in Agege Lagos state 

 

Assuming the property is in Osogbo given the bank reasons why it should adopt the option of charge by deed expressed by way of legal mortgage as against sub-demise.

 

Assuming the mortgagor in this transaction is Emeka& co legal practitioners and consultants set up by EmekaJojo and Tunde Grange draft the introductory and concluding parts of the final document the parties will execute in order to complete the transaction.

 This deed of legal mortgage is made this ….day of …. Between

1. Mr Emeka Jojoof ……..;
2. Tunde Grange of…… carrying on business as and

 

Where a mortgagor has applied for the re-opening of a foreclosure order absolute, state the conditions he would need to satisfy before the application could be granted.

• The application must be brought timeously, you must not be guilty of delay- because delay defeats equity
• The applicant must not be guilty of any unconscionable conduct because he who comes to equity must come with clean hands
• The applicant must explain/show to the court that the circumstances that led to the failure to pay the money owed was beyond their control
• Must satisfy the court that they have the money

 

Note that this is different from the circumstances would cause a foreclosure order to become absolute. 

 

If Chief Musa defaults in repaying the loan mention 5 remedies available to the bank in enforcing the legal mortgage

 

Mention and discuss briefly any three rights available to Chief Musa under the mortgage transaction.

• Equity of redemption
• Equitable right to redeem
• Legal right to redeem

 

Assuming he defaults in repaying the loan and the bank has elected to exercise the power of sale, comment on the conditions the bank must meet in order to be able to validly conduct the sale.

 

Mention the two major contents of the testatum in a legal mortgage, and assuming the mortgage is equitable what measures should the bank take to be able to sell the mortgage property to a third party and pass a good title without going to court.

Major contents of the testatum – the charging clause and the covenant to repay.

Owoniboys case – legal mortgage can sell without going to court.

1. b) The general is that an equitable mortgagee cannot sell without going to court. To avoid going to court they must meet three conditions

• The equitable mortgage must be by deed
• There must be no contrary intention in the mortgage
• Insert any one of the remedial devices

 

Comment briefly on the challenges GTBank would face if the mortgage property was located in Enugu and the mortgage was created by sub-demise. Comment briefly on how these challenges may be taken care of.

 

WILLS AND CODICILS

Mr Yahaya has just passed on instruction to his solicitor Malam Abo to draft Mr Yahaya’s last will. Answer the following questions 25-37

State any three option available to Mr Yahaya in validly executing his will according to law

 

Mention any 5 exceptions to the doctrine of lapse in a will

Discuss briefly the factors to be considered whether a testator has mental capacity to make a will as discussed in the case of Banks and GoodsFellow

 

Mention any 4 limitation/restrictions  to testamentary capacity in Nigeria

Age restrictions

Statutory restrictions

Religious restrictions

Customary restriction

Also note the principle of nemo quod non habet

 

Draft a charging clause in a will and mention the properties that would constitute the residuary estate of a testator

Properties that constitute residuary estate

• Gifts that failed under the will
• Gifts that are renounces
• Property acquired after the testator had made the will
• Properties the testator filed to specifically mention in the will

Note effects of a failure to include residuary clause

 

State the two ways in which a later will may revoke an earlier will and discuss any 4 exceptions to revocation by marriage

Express revocation – the later will contains a revocation clause

Implied revocation – the provisions of the later will is manifestly inconsistent. Note if its only a part it would not revoke the entire will, it would only revoke it to the extent of its inconsistency

 

 

Discuss revocation of will by destruction and highlight the major changes of the wills act amendment act 1852

The destruction must be in the presence of and in writing 

 

Mention the circumstances that may lead to administration of letters with the will annexed, administration pendent lite and grant of double probate?

 

When will the Administrator General be given the responsibility of administering an estate and mention when an estate would be said to be unrepresented?

 

 

 

 

Appointment of a sole executor is legal and valid but it is not advisable because he has no one to be accountable/responsible to. However where there is a minority interest or life interest in the gift, appointment of another executor is not mandatory but an interested person can make an application to court to appoint another person to join the sole executor in administering the estate. But its still up to the court, they just have the right to apply where there’s minority or life interest.

If the person entitled to apply chooses another person that’s not part of the priority list to apply for the letters of administration, it is allowed. So long the person 

 

Executors can start administering the estate before the grant of a probate but if they begin to administer the estate without applying for probate within time they become an executor de son tort.

Any interested person can file a citation on an executor to come and prove the will if he has failed to apply for probate and the time is about to lapse/ sleeping on their duty. If they don’t respond to the citation that interested person may then apply to take the grant. This is different from the citation filed in response to a caveat. This says come and show cause why the grant should not be made to them. This citation would then be served on the caveators who then have 8 days to enter an appearance, so they must file Form 6. If they refuse to enter an appearance within 8 days, the propounders would then depose to an affidavit stating this fact that the caveators  have failed to enter an appearance and file the affidavit in court. Then the caveat becomes ineffective. A caveat filed while a probate action is pending its ineffective abinitio, the proper thing to do is file a joinder or intervention. Life span of a caveat in Lagos is 3 months and 6 months in Abuja. If the lifespan expires without it being renewed by filing a further caveat, it becomes ineffective.  A further caveat extends the lifespan of  a caveat by 3 months in Lagos and 6 months in Abuja.

A caveat also becomes ineffective when it is withdrawn.

 

Resealing – in Abuja an affidavit showing that you have satisfied the requirement in relation of tax and in Lagos you have to show tax clearance certificate.

 

Conditions for validity of an assent

• Assent must be in writing
• Must be executed/signed by all the executors (the executors granted probate)
• Must sufficiently describe the property so as to make it easily ascertainable
• Must contain the sufficient particulars of the beneficiary
• It need not be by deed

 

Assent is an example of document that is executed as a deed poll.

 

Instances where executors would be excused from liability

• They may get relief form the creditors or beneficiary concerned
• Court may grant relief
• Testators may expressly provide in the will that they be excused from liability. However dishonest acts to misappropriation of the estate don’t apply, they would still be liable
• Statute of limitation

 

 

2^nd August 2018

Learn how to draft covenant to insure

The documents to be handed over during exchange of contract and completion of are different

1. Exchange of contract: Epitome and abstract of title, receipt of purchase– they are given to deduce contract
2. At the completion of sale of land

 

Exchange of contract is not always necessary. It wouldn’t be necessary where the parties are represented by the same solicitor. for this to occur there has to be :

• No conflict of interest
• The major terms of the contract must have been agreed upon
• No dispute as to title i.e. the title must be sound
• The price is small

 

 

Special provisions in contract of sale of land

• Possession before completion
• Provision relating to date of completion – if it doesn’t state any particular date for completion the law states that transaction must be concluded within a reasonable time and this time depends on the circumstances of the particular case and this causes problems/arguments. Also this is the date where the purchaser is expected to pay balance of purchase price and once this date passes and only the deposit has been paid, the seller can sell to someone else
• Provision relating to Payment of the balance – the position of the law is that if you pay deposit and don’t pay balance, you will lose the deposit you’ve paid but by this provision they can make penalties that wouldn’t entail losing the property i.e. 5% interest would be paid
• Provision relating to Payment of deposit – shows seriousness and commitment on the part of the purchaser, 2) it shows the transaction is not gratuitous

 

Part payment a binding transaction has come into force and if the person doesn’t pay the balance it is just a debt owed, whereas if it is deposit the purchaser is liable to lose the money paid as deposit and property.

 

S 17 LPA If the client brings an application to court within one month the court has no option but to consider taxation. If he applies the court shall refer it to a taxing officer .at the expiration of 1 month either the client or the lawyer is entitled to apply for taxation and here the court has the discretion to grant it.

 No court is entitled to make an order of taxation from the expiration of 12 months from the date of service or the date the client has paid 

 

Read chapter 7 of the handbook.

 

Note how to draft the charging clause of the deed of mortgage – cesser upon redemption

 

Read s 7 &8 of tenancy law Lagos– It provides for covenant against assignment and so it forms part of the implied covenants

 

Consequences of failure to submit a will to probate

• Contempt of court
• Fine of N50,000
• Summoned for the purpose of compelling you to produce it/ cross-examine you to determine whether you have it

 

Provision of abatement in a lease

General rule – frustration does not apply to leases. This provision says that in the event or occurrence of natural or unnatural disasters to deprive the tenant of the opportunity to continue use the property for the purpose it was given to him, his rent shall be suspended. 

 

Learn the Procedure for obtaining letters of administration

• Apply
• Publish application and 21 days publish has the right to make an objection to the application if they believe the person should not be granted LoA
• If no objection is received the probate register would go ahead and process the application and make the grant.
• If someone makes an objection and it is meritorious then they would go to probate action. If it is frivolous then probate register would go ahead to grant the application.