Why Should [Almost] All Lands And Houses In Ghana Be Sold

Sat, 8 Jan 2011 Source: Darko, Otchere

Why Should [Almost] All Lands And Houses In Ghana Be Sold On “Leasehold” Only?

By Otchere Darko

It has become [almost] impossible for any Ghanaian to be able to buy land as a freehold anywhere in Ghana..... one’s own country. Similarly, [almost] all already-built houses everywhere in the country are being sold as leaseholds. *This is what is happening, even though many Ghanaians may not be aware of this development and its long-term implications. Why is this the case? Why should [almost] all lands and houses in a “free country” be sold as leaseholds only, irrespective of whether they are sold by individuals, chiefs, the Government, estate developers, or any other owners; and, also, irrespective of whether they are for commercial or residential use?

Many Ghanaians who use this forum have travelled to, or lived in different countries abroad..... European countries, USA, Canada, Australia, etc; and they know what happens in these countries. In all these places, people usually and easily buy pieces of land and houses as freeholds. Of course, there are some lands and houses that are also sold as leaseholds in all these foreign countries, but they are generally fewer in numbers than those sold as freeholds. And most importantly, a person who is looking for a property to buy in all these foreign countries decides on his own accord whether he wants to buy a freehold or a leasehold..... depending on what he is going to use it for, as well as on what his financial resources are. He is not forced by law, or by the non-availability of freeholds, to buy a leasehold. Here in Ghana, a person trying to buy land or a house has virtually no choice. In [almost] all cases, he has to buy it as a leasehold. Why do Ghanaians always have to do things differently, clumsily, and negatively? Being different in a good sense is not bad; but being different in a wrong sense is horrible.

Leaseholds always have long-term legal rumbling and cost implications. Most leases in Ghana have a 99-year life duration. This means that after 99 years the leased property passes on to the lessor, unless it is renewed. And most leases have strict clauses regarding renewal terms and conditions. Others have vaguely, but professionally worded terms and conditions whose legal implications may not be clear to the ordinary buyer, though they bind him in the longer run, nonetheless. Despite this fact, many Ghanaians hardly think about this long-term legal rumbling and cost implications. Thus, it is seldom for many property buyers in Ghana to pay attention to the terms and conditions under which the leased properties they plan to purchase can be renewed in future years [when they, the original buyers, are dead]. It is clear that many Ghanaians think that a ninety-nine year period is “too long” for a property buyer to worry about lease renewal.... as the following two related comments by two separate men of “status” show: (1) *“Where will you be in ninety-nine years’ time, Mr Otchere Darko?” One property-conveyance lawyer told me face to face a few years back. (2) *“I have never thought about what will happen when the lease on my house expires in 99 minus five years’ time,” a university lecturer friend of mine also told me a few years ago, referring to a leasehold property he had bought five years earlier.

Apart from this long-term legal rumbling and cost projection, all leases have continuous annual fees payable by the lessees to the lessors that never end, as long as the leases remain enforceable. I have two properties in Accra which were both purchased from the SHC. Every year, since I bought them, the SHC writes to request me to come and pay “land rents” due on them. And these are houses I have “bought”...... not “rented”. I also bought a piece of “raw” land from a private seller in Accra in the not-distant past. The private lease, [or indenture], signed contained clauses that said I should pay a specified annual fee to the original land owner, or the lessor. *It should be added that with some private sellers, often these rent, [or fee], payments are not followed up and enforced after the sale of such properties. This allows the lessees concerned to escape what would be a legal obligation enforceable in law courts. It should be noted that non-enforcement of payment, on the part of the lessor, that leads to failure to pay rent [or fee] due, on the part of the lease holder, does not wipe out the lessee’s liability; and, therefore such failure to pay an agreed fee, [or land rent], may even disadvantage the lessee’s chances of getting an enforcement of the renewal of a lease when it expires.

One of the reasons for the prevalence in Ghana of selling land by leasing, instead of by freehold conveyance, is often attributed to the phenomenon of “stool lands”, which are deemed by most customary laws and practices across the country to be “not saleable”. In the past, stool lands have usually been given freely to businesses and institutions by chiefs for reasons of “promotion of development” within their communities. In other cases, chiefs have given out stool lands on rental basis for non-residential users...... by whom rents, agreed in cash or kind, were paid to the stools concerned. Stool lands have also been, and continue to be acquired from chiefs by the Government for public use purposes..... for which the stools concerned got paid some revenues through appropriate avenues. Stool lands in the past were also given by chiefs to private people for “settlement purposes”, for which the appropriate customary law “considerations” were demanded to serve as “seals” for such stool land appropriation for private use. In the community where I come from, lands that did not form part of “stool lands” were either owned collectively by families, as “family lands”; or owned individually by individuals, as “personally-owned lands”. Family lands could only be sold in the past with the consent of all the clan heads whose “family lines” pooled collectively to own such lands. Personally-owned lands could be sold by the people who owned them, with or without notifying family members. Today, things have not changed much in the community where I come from, except that all lands “sold” and “indentured” by chiefs, families, or individuals have to be registered with, and leased by the Regional Lands Commissioner on behalf of the Government of Ghana...... which is said to be the historical owner of every land in the community where I come from, by virtue of a colonial proclamation made during the colonial era. This makes buying of land in my community even more complicated than elsewhere in Ghana, because of this seeming “double ownership”. *The described general trend of buying land as “leasehold only” virtually cuts across the whole country from north to south, and east to west. Why should it be so? Why can’t Ghanaians buy pieces of land or residential houses outright as freeholds?

*I have to state that I have no quarrel with commercial lands and buildings that are sold in Ghana on leasehold basis, even though here also I would not like to see the practice being made “the norm”. When it comes to residential houses and lands, then the practice of selling them on leasehold only fails to make any sense at all, in my opinion. The whole transaction and commitments under it, in all such leasing situations, become clumsy, obnoxious, hazardous, “unending” and unfair to the buyer. Ghana has many land-related problems. However, this general practice of selling land and houses by “lease only” is one problem that stands out as unique, extremely negative and potentially very controversial and explosive...... judging it from long-term legal perspective. *People cannot, and should not be encouraged to sell and get paid for what they previously owned, and continue to claim to own them...... through a “legalised conning scheme” operated via a lease system that only really sells “occupancy”, while guaranteeing the seller continued ownership of the [real] “substance” of what apparently has been “sold”..... a system that is appropriately and justifiably used in exceptional circumstances in the countries from where we borrowed it; but which [system] has been misused and abused in Ghana by land owners who are operating it to “con”, with the help of political leaders who place “tribal and other parochial interests” before “national duty”. *No system should allow people to wilfully “eat their cakes and continue to [claim to] have them”...... which is contrary to both “logic” and “common law justice”. *Every effort should therefore be made by the Government to change the way land and houses in Ghana are “sold” and “purchased”, so that Ghanaians can freely and outright own residential lands and houses which they have lawfully bought through what we, Ghanaians, traditionally see and accept as having been “properly sold” and “properly purchased”. *Importing a foreign system and using it negatively is not only wrong; it is also atrocious. *In my opinion, the current general practice of selling land and houses by “lease only” is one of the most important national issues that need the immediate attention of political parties in Ghana [and their leaders], and which must therefore be addressed by party manifestoes of all parties that stand for “fairness” and “natural justice”.

Source: Otchere Darko; [This writer is a centrist, semi-liberalist, pragmatist, and an advocate for “inter-ethnic cooperation and unity”. He is an anti-corruption campaigner and a community-based development protagonist. He opposes the negative, corrupt, and domineering politics of NDC and NPP and actively campaigns for the development and strengthening of “third parties”. He is against “a two-party only” system of democracy {in Ghana}....... which, in practice, is what we have today.]

Columnist: Darko, Otchere