Unlike real assets owned
by individuals, family property (land and houses) is for the use
and enjoyment of the members of a family as one unit. Thus, one member cannot
single-handedly sell such property.
by individuals, family property (land and houses) is for the use
and enjoyment of the members of a family as one unit. Thus, one member cannot
single-handedly sell such property.
Therefore, for sale of family
property to enjoy validity under Nigerian law, there must
be the full payment of purchase price, coupled with actual
delivery of possession (this delivery should be done in the
presence of witnesses), and concurrence of vendors.
property to enjoy validity under Nigerian law, there must
be the full payment of purchase price, coupled with actual
delivery of possession (this delivery should be done in the
presence of witnesses), and concurrence of vendors.
Asides from showing unequivocal intention
to sell, the significance of full payment, coupled with possession,
is to ensure that in the event of a default, the purchaser
would be able to sue for the amount paid and/or title to the property.
to sell, the significance of full payment, coupled with possession,
is to ensure that in the event of a default, the purchaser
would be able to sue for the amount paid and/or title to the property.
WHO MUST GIVE CONSENT FOR SALE TO BE
VALID?
VALID?
The ‘Agreement to Sell’ of the vendors
refers to the consent of both the family head and other principal
members of the family to sell family property.
refers to the consent of both the family head and other principal
members of the family to sell family property.
The head of the family is the patriarch of
the family. Usually a male leader, older, and respected by other members of the
family. Principal members are other senior members of the family or those who
act as representatives of the different branches (in the case of a polygamous
family) of the family in the course of the transaction.
the family. Usually a male leader, older, and respected by other members of the
family. Principal members are other senior members of the family or those who
act as representatives of the different branches (in the case of a polygamous
family) of the family in the course of the transaction.
Where there is alienation (i.e. a sale)
without the consent of the family head, such sale is void
(i.e. of no legal effect), and when the sale is by the family head
without the consent of the principal members, the sale is voidable
i.e., it can be set aside by the courts at the instance
of the non-consenting principal member(s).
without the consent of the family head, such sale is void
(i.e. of no legal effect), and when the sale is by the family head
without the consent of the principal members, the sale is voidable
i.e., it can be set aside by the courts at the instance
of the non-consenting principal member(s).
Furthermore, it is important to have
witnesses who observed the handing over of the property to the buyer. This
prevents any reversal of the decision to sell, and doubles as actual proof of
transfer of interest in the property.
witnesses who observed the handing over of the property to the buyer. This
prevents any reversal of the decision to sell, and doubles as actual proof of
transfer of interest in the property.
In conclusion, the requirement
of writing is not a pre-condition for the sale of family property
especially under customary law. One should also note that asides the
aforementioned, sale of family land may be subject to certain native
rights prevailing in a particular ethnic group.
of writing is not a pre-condition for the sale of family property
especially under customary law. One should also note that asides the
aforementioned, sale of family land may be subject to certain native
rights prevailing in a particular ethnic group.
To conduct a sale of family assets, the
information proffered here is priceless. Be guided!
information proffered here is priceless. Be guided!
HightowerLawyers
Ed’s Note – This article was originally posted here.
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