How to avoid land litigation

Land litigation cases in Ghana are alarming. Research conducted at the High Court Registry in Accra showed that there were 60,000 land cases in the superior courts alone and as for the lower courts, they were so overwhelmed with cases that the courts were unable to give the statistical data pertaining to the land matters pending before them.

In order to avoid land litigation, it is imperative that you buy land from authorised persons, ensure that these persons comply with the rules on conveyancing, do a thorough due diligence and register your interest in the land. It is critical that you approach every land transaction as though you were dealing with a dishonest person.

In this article I will help you understand the main causes of land litigation and how you can avoid them. I will use practical examples from my experience and case law.

CAUSES OF LAND LITIGATION IN GHANA

The main causes of land litigation in Ghana are:

1) buying land from unauthorized persons;

2) failing to comply with rules on land sale;

3) failing to do a thorough due diligence on land;

4) failing to register one’s interest in land.

1) BUYING LAND FROM UNAUTHORISED PERSONS

The persons authorized to sell land in Ghana are:

• the Stool;

• the Family;

• the Individual; and

• the State.

Research has shown that the Stool, Family and Individuals own about 80 percent of the lands in Ghana and the State owns the rest. Land from a stool must be purchased from the occupant of the stool with the consent of the elders of the stool, Family land must be purchased from the head of family with the consent of the principal members of the family, state land from the Lands Commission. You must always ensure that you buy land from the authorised person and the documents are duly witnessed.

2) COMPLYING WITH THE RULES ON LAND SALE

In order for the above-mentioned entities to validly sell land, they must comply with the statutory and customary rules on land sale.

A) STOOL

Historically, stools have acquired lands through settlement, and after a long period of being in undisputed possession of those lands, they became the owners.

As owners, the stool kept little or no records and did not demarcate or delineate its boundaries to its land let alone register these lands. Thus, these lands became insecure and risky to buy as prospective purchasers had to produce their own site plan. These plans sometimes fell into the boundaries of lands being claimed by neighbouring stools. Thereby leading to litigation.

The rules that must be followed on land sale by the stool are:

Consent of elders

1) the occupant of the stool, the regent or caretaker must sell the land with the consent and concurrence of the elders of the stool. If the stool fails to do this, the grant is void. In the case of Awuku v. Tettey, the caretaker, an agent of the Osu stool sold Maamobi land without the consent of the elders of the stool. The Supreme Court had to determine whether the caretaker had capacity to grant Maamobi lands without recourse to the stool. The Court held that a grant by the caretaker without the consent and concurrence of the Osu Manche, or even a grant by the Osu Manche without the consent of his elders was null and void or in other words unenforceable. Therefore in order to avoid litigation you must procure the grant from the occupant of the stool with the consent of the elders of the stool.

Consent of Traditional Council

2) the stool must obtain the consent of the Traditional Council to sell the land. The Traditional Council is made up of all the chiefs in the Traditional Area including the Paramount Chief, Divisional Chief, Sub-divisional Chief and other lesser chiefs. A failure to obtain the consent of the Traditional Council would render the grant voidable. A voidable grant is valid until one of the parties goes to court to declare it void because that party wants to avoid his or her contractual obligations. A practical way of doing this could be asking the court to declare the contract void for non-compliance with this rule.

In one case that I did, the Paramount Chief claimed that his consent was the same as the consent of the Traditional Council. That assertion is untrue. The Traditional Council is made up of all the chiefs in the Traditional Area concerned including the Paramount Chief and their consent must be sought to make the grant unimpeachable.

Consent of Regional Lands Commission

3) the stool must obtain the consent of the Regional Lands Commission to sell the land. This consent must certify that the sale or the use of the land is consistent with the development plan drawn up or approved by the planning authority for the area concerned. The courts have been flexible with this rule, they have said that the Lands Commission’s consent can be sought after the land has been sold. This consent is usually granted as a matter of course.

Stools are known to be notorious for claiming to invalidate contracts and selling the same piece of land several times. In the case of Amankwah v. Kyere a chief sought to invalidate a contract because his predecessor had been destooled. The issue was whether the chief could invalidate a contract entered into by his predecessor because his predecessor was subsequently removed by the stool.

The court held that a stool is like a company and provided the occupant of the stool was elected and installed in accordance with custom and law, a person contracting in good faith is entitled to his remedies if the stool later seeks to abrogate the contract. In otherwords, if you enter into an agreement with an occupant of a stool, the stool as an entity is bound and a new occupant cannot say that the contract is no longer valid because the occupant you entered into the contract with has been destooled.

B) FAMILY

Family land is the most insecure land in Ghana, especially the Ga-Adangbe lands namely the Ningo, Prampram and Shai areas. The practice in these areas is that the family for the purpose of selling lands breaks up into factions and each faction appoints a head. The heads and members of the various factions all purport to have the capacity to sell the Family lands and this is a major cause of litigation in our courts especially if you did not buy the land from the right family or you did not obtain the consent of all principal members of the family.

Fulfilling the requirements on the sale of Family lands could be quite challenging as you may have to rely on what the family tells you and there is no way of verifying this information.

The rules on how to sell Family lands are as follows:

1) Family land is sold by the head of the family with the consent of the principal members of the family.

2) In cases where land is owned by separate or different families together, the sale must be made by the heads of all the separate families with the consent of the principal members of those families. In situations where the head of a family’s consent was not sought, he could, on becoming aware of the sale by the other heads of families, act within a reasonable time to invalidate the sale on grounds that it is void.

3) A member of a family who builds a house on Family land does not have capacity to sell the land. In Amissah-Baidoo v. Abaidoo a member of a family built a house on family land in which the family was in effective occupation, the court held that that member acquired a life interest in the land but did not have capacity to sell the land. This example is to show that when purchasing family land, you must deal with the family as a unit and not with individuals within the family even if they own the buildings on the land.

4) The courts have held that the immediate family can sell family land without the consent of the head and members of the wider family. This rule is supported in the case of Andrew v. Hayford where the deceased died intestate without a spouse or a child, his uterine brothers were the only surviving members of his immediate family, as such, one of his brothers was appointed his customary successor and he in law became the head of the family and the proper person to deal with the land without the consent of the head and members of the wider family.

The law on the sale of Family land is so elaborate that I would advise that if you have to buy Family land you must consult an experienced real estate lawyer.

C) INDIVIDUAL OR CORPORATE

Generally individuals and Corporate entities can sell land. The risk of buying land from an individual is that the individual can sell land which he does not have the capacity to sell to you. An example is a land agent who purports to sell land when he does not have the authority of the principal to sell the land. If you are buying land from a reputable developer for instance, you are assured of a more secure title than the Stool or Family because a developer can give you a site plan and all documents you require for your due diligence.

Corporate entities like companies, co-operatives, partnerships and religious bodies can only sell land in accordance with their laws and regulations.

D) THE STATE

State land is the most secure land in Ghana.

The rule regarding State land is that you must ensure that the State has paid the appropriate compensation for the land it is selling to you otherwise the original owners could reclaim their land.

There are various laws that grant the State the power to acquire land. You must look out for the following:

1) the law under which the acquisition was made;

2) the purpose of the acquisition; and

3) ensure that the appropriate compensation was paid.

Failure to do this kind of due diligence could expose you to law suits from rival claimants who can challenge your title to the land because the acquisition did not follow the procedure set out in law, the land is not being used for the purpose for which it was acquired or that compensation was not paid.

Some of the laws by which the State compulsorily acquires lands are:

a. Constitution:- allows the State to acquire land for a public purpose and in the national interest;

b. Land Use and Spatial Planning Act, 2016 (Act 925):- allows the District Assembly to acquire land or an easement for the purposes of widening, opening, enlarging, draining or for improving the street or making a new street after paying compensation to those who own or have an interest in the land;

c. State Property and Contracts Act, 1960 (CA 6):- allows the President of Ghana to acquire properties required for the Public Services by executive instrument declaring that the property is required for the Public Services.

d. Administration of Lands Act, 1962 (Act 123):- relates to the administration of stool and other lands. For a land to be validly acquired under the Administration of Lands Act, it must be established that the President in his opinion considers the land as conducive to the public welfare and interest of the State.

e. State Lands Act, 1962 (Act 125):- this Act allows the President to acquire lands not previously acquired under the Administration of Lands Act whenever he is of the view that the acquistion of the land is in the public interest.

3. FAILING TO DO A THOROUGH DUE DILIGENCE

Due diligence is the most effective tool for avoiding land litigation.

Due diligence means conducting investigations into who owns land, finding out whether there are any encumbrances on the land, and the nature of the transactions that have occurred on the land. This would require the interested purchaser to conduct searches at the following divisions of the Lands Commission. Namely; the Public and Vested Lands Management division, the Survey and Mapping division and the Land Registration division.

If the purchaser is satisfied with the findings of the search, then the next step would involve negotiating the terms of the agreement.

Negotiations and contract of sale

It is imperative that the outcome of these preliminary negotiations are captured in a contract of sale.

The preliminary matters that may be captured in a contract of sale include the names of the parties, a description of the property, the agreed purchase price having regard to the nature of the property, its location, state of repairs and available facilities.

The payment of a deposit goes hand in hand with the signing of a contract of sale. The deposit payment makes the contract of sale as good as a lease and ties the hands of the vendor so that the vendor cannot sell the land to a third person without the consent of the purchaser.

If the vendor sells the land in breach of the contract, the purchaser could go to court and ask the court to compel the vendor to complete performance of the contract by selling the land to him. This is known as specific performance. Specific performance is an equitable remedy in the law of contract whereby a court issues an order requiring a party to perform a specific act to complete performance of the contract.

The contract will give the purchaser ample time to go to the community to make inquiries as to ownership and availability of the land.

The purchaser could call for the following documents from the vendor: document of title; approved site plans (survey plans); leases; assignments; land certificates in case of registered land; affidavits and statutory declarations; judgments of courts and all other documents related to the land.

This type of due diligence is technical and once again you will need an experienced lawyer to assist you with reviewing these documents.

The purchaser could also do the following: conduct litigation checks in the courts in the area or with any local chief as to any arbitration in respect of the ownership or boundaries of the land; if possible, purchaser should be permitted to exercise possessory right for a period; purchaser could ask vendor to provide an indemnity in case the sale should fail due to the claims of rival claimants.

The purchaser must ensure the vendor has paid property and utility rates that may be owed on the land to date.

The purchaser must have full knowledge of any overriding interests such as easements, leases for terms less than two years, Government right of compulsory acquisition, rights of persons in actual occupation and adverse possessors in law.

Overriding interests are interests which, though not registrable under the law will nevertheless bind a purchaser of land or a lender if it buys or takes security over land which is affected by those interests.

Generally, for third party rights to bind purchasers of land and lenders, those rights should be disclosed by due diligence and searches at the land registry, or through title deeds. Overriding interests under our law are the exception to the general rule that all interest and rights over land should be registered to be effective in law. Overriding interests will bind land, land owners or any other persons who acquire rights or interest in the land, regardless of whether or not such persons knew about the overriding interests at the time they acquired the land or the interest thereof. The general effect of overriding interests is that they have the capacity to diminish the actual value of land and may generally defeat the use of the land.

4. FAILING TO REGISTER ONES INTEREST IN LAND

There are two sets of laws for registering land depending on whether the land is in a registration district or a non-registration district. The Land Title Registration Law, 1986 (PNDCL 152) and its regulations are the applicable laws for registering land in the registration district and the Land Registry Act, 1962 (Act 122) is the applicable law for registering land in the non-registration district.

The registration districts are Accra, Tema and Kumasi and the non-registration districts cover the remaining districts.

Registration gives notice of ones interest in the land especially in the case of registration in a registration district. This is because there is a publication of the applicant’s intention to register in the media and the general public is given 21 days to raise an objection. Thus, if an objection is not raised within this period, the applicant is deemed to have notice of this registration.

Moreover, a search conducted at the Lands Commission would reveal any land registrations and a prudent purchaser should not buy land which is already registered in someone else’s name if that person is not the seller. You do so at your own risk.

Conclusion

The key takeaways from this article are that if you want to avoid litigation, you must buy land from authorised persons, ensure that these persons comply with the rules on conveyancing, do a thorough due diligence and register your interest in the land. It is critical that you approach every land transaction as though you were dealing with a dishonest person. That mindset is key if you want to avoid land litigation.

Emmanuel is the Managing Partner and Head of the Real Estate, Construction, Infrastructure and Transportation practice group of M&O Law Consult.