[Mr Danaa Samad Moderated the session on 25th May 2020 from 8:00 PM to 12:00 Midnight]
Introduction
Moderator: Land is a very important factor of production that requires a lot of tact, negotiations and contracts to arrive at. Due to the important nature of land and appreciation in value as time moves, many issues abound in terms of litigations. To take us through Land, when, where and how to acquire it as well as land management, let’s welcome Dr Elias Danyi Kuusaana; An expert in land economy and a lecturer at UDS. I must also add that he is a Member of the Ghana Institution Surveyor (GhIS)
Guest: Thanks very much Samad, for the opening caption, and for agreeing to moderate this section
Moderator: When should one be interested in buying land: for a house or for some other land-based investments?
Guest: Thank you Samad. As you mentioned, land is a very valuation resource. And we all need it as a source of pride, wealth and also for investment purposes. I think that there is no best time in times of age to acquire land, but generally one should be interested in acquiring land or have the right to safely use land as soon as you realize you have capacity to create an investment on it Or as soon as you certain you can secure it from other encumbrances.If you can afford land, acquire it and make sure you secure it.
Moderator: Is acquiring land limited to just offering money in exchange for land?
Guest: We have different modes of land acquisition. Paying money as consideration for land is just one of the modes. However, monetary transactions are not the only means to acquire land.
One can acquire land as a gift, as a right if you belong to the land-owning group, purchase, rental among others. In the mortgage market, mortgagees may obtain land or landed property through forfeiture; so, there are a number of modes.
However, the commonest modes are rentals and usufruct rights one may enjoy because he or she is a native of the land-owning group. I am usually careful to talk about sale, because the concept is constructed differently from a ‘purchaser’s‘ perspective. The one who pays money for land calls it a purchase, the chief who offers you the land calls it a rental. However, there are rare instances where a land may be sold, and the Lawyers have the means to ascertain and differentiate rentals from sales.
Moderator: That said, from which people should one accept to purchase land?
Guest: From the person who has capacity to offer the land as a trustee or as an owner. This is one area of great concern: everyone from land owning families think they can be landlords, and sell land, so as practitioners, we caution the buyers to beware (caveat emptor) when they are acquiring land. You see, because land has value, many people find convenient maneuvers to put themselves in ‘landlord portfolios’ and parade as such.
This in itself is criminal, again the lawyers help as deal with these. However, I am usually comfortable advising the ‘buyer’ and not the seller. It is extremely painful to buy litigated land. Only acquire a land, when you can ascertain from the Lands Commission that the purporting grantor indeed has the capacity to make the grant to you and one easiest way to do this, is to ask the Neighbours to your proposed land. Neighbours can help you flee litigation.
Moderator: Very revealing Dr; You spoke about sale of land and rental of land. What is sale and rental of land and what is the common practice is Ghana?
Guest: Let’s not talk about sale for now. What most of us acquire are leaseholds in Ghana. Even though conveyances or outright grants can be made on private and family lands, land managers are gradually tilting towards leases. I find this reasonable: leases here mean that a grant is made to you over a period of time, to use and to enjoy until the lease expires. Then, the land and property revert to the landlord, if there were no prior arrangements for an automatic renewal of the lease.
Because, leases are generally created as contracts, every lease might be different. You and your neighbour may have different leases. However, leases are generally created to last for a maximum of 99yrs for Ghanaians, and 50yrs for non-Ghanaians.
This means that some leases can be shorter depending on what you need it for. For those of us who buy lands from other people, do not be excited about the fact that the person has a prior lease, ascertain the number of unexpired terms on that lease.
Pay for the right to enjoy land over a secure tenure, and not just how attractive the land per se is. So a safe lease in my view must be in writing, specifying the parties (grantor/lessor and the grantee/lessee), with an undisputed description of the property in the form of a site plan; it must specify the term of the lease (how long it is), it must have witnesses, and indicate the ground to be paid annually.
Any lease document over land that has these characteristics, I will call a valid lease. Let your lawyer help arrive at favorable terms.
Moderator: So, from your brief, what happens after the 99yrs if there is no automatic renewal of lease?
Guest: “Quicquid Plantatur Solo, Solo Cedit” is a Latin maxim which means whatever is affixed to the ground belongs to the ground. It is a principle that whatever is attached to land is part of land.
After 99yrs, there are a few options. You can renegotiate the terms. You can include in the lease for an automatic renewal. Or you return the land to the land or his descendants: land + development/investment. So, please let your lawyer insist on an automatic renewal. Also, note that the landlord’s lawyer will also then insist on a higher consideration because you are securing a future right today; so, you pay more today to enjoy more tomorrow or you pay less today and risk losing both land and property in the future. Most Lebanese who acquired 50yr leases in 1969 following the Constitution then, have lost their properties in Accra and Kumasi.
Moderator: How do we ensure that the lands we acquire are free from litigation?
Guest: Buying land is not as straightforward as buying tomatoes in the market.
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We have to be meticulous and dig out every information in respect of the proposed land.
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Sometimes, it’s better to engage professionals to act on your behalf.
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However, we can all conduct an official search with the lands commission. It doesn’t usually cost much, but it will safe you a lot of stress.
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Always be sure that the person offering you the land has the capacity to offer you the land.
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Also, ensure that you do not pay any money until you can enter the land. Surprisingly, people pay for land without seeing it.
At the open forum I think other people can share their own experiences and how they escaped. In some parts of Ghana, visiting the land alone will reveal a lot. Neighbours are perfect “filla” mongers. Let’s use them.
Moderator: You have said a lot about the purchase of land. We have a system in which lands are acquired or leased and later leased again to another [person] and sometimes without prior knowledge of the original land owners. How do we tackle this phenomenon given that the end of the lease period can ignite serious litigation?
Guest: Yes, such transfers are legal and allowed. There are two things that usually happen: [1] Someone may sell the entire unexpired term to you (it’s called an assignment) or [2] offer you a portion of the lease period, say 50yrs out of 99yrs (it’s called a sublease).
Usually, assignments and subleases are created without directly involving the head lessor. Even though it is not usually mandatory to seek his approval, it is advisable to always inform the original landlord about your transaction.
This has created challenges on some lands, where highly protective landlords have tried to evict sub-lessees or assignees. It is advisable to always inform your landlord of any subsequent transaction on the land.
Remember, he has a remote reversionary interest, after the 99yrs. When a transaction is an assignment, you need to check the years remaining on the lease before they negotiate the purchase amount.
Some leases require written consent of the head lessor be[fore] a sublease or assignment so they need to take note of that otherwise such a breach could cause the head lessor to sue the lessee.
These conditions are usually in the lease titled Covenants. Please take time to read your lease “oooooo”. It’s not more than 10 pages in many cases. Learn it and make sure you pay your annual ground rent.
Moderator: How does one ensure that the tenure of his land is secured?
Guest: Register it. Don’t trust any chief or land guard or “Tindana”. These days most of them are compromised. After registering, you need to follow all covenants in the lease agreement and take possession of the land. Be aware that a breach of any of the covenants may result in adverse possession of the land.
The landlords are allowed to re-enter the land if for instance you delay in developing the land after 3 years. of acquisition up to a habitable state. Read these covenants carefully and solemnly. To take possession, you must show that there is occupation of the land.
Build if you can. If you can’t, send sand, put pegs, drop chippings, clear the land, drill a borehole, sink a well, plant hedges, plant trees, build a hut, farm on it, clear it annually. These things will communicate your occupation.
Also, let your Neighbours know you very well, to the extent that they won’t let you miss any activity on the land.
Moderator: Dr, which institutions are responsible in helping acquire land and what roles do they play in the acquisition?
Guest: The Lands Commission: Survey and Mapping division formerly survey department, public and vest land management division formerly lands commission, land registration division formerly land title registry, and land valuation division.
We also have the Land use and spatial planning department formerly town and country planning department and also the Office of the Administrator of Stool lands: The District, Municipal and Metropolitan Assemblies also play important roles as planning institutions.
The chiefs also have the customary land secretariats that play very important roles. The courts are also very important in ensuring tenure security.
Members of the Ghana Institution of Surveyors are very important as intermediaries together with the Lawyers. Each of these have critical roles to play. We can discuss these another time.
Moderator: Dr before we go to questions from members, Is it advisable to jointly own land with a spouse? How is it done?
Guest: Yes, own properties with your wives. I advise people to buy lands in ‘twos lol’ and when registering them: put your full name and the full name of your spouse and not Mrs. Kokofu or Mr. Kokofu. However, if you want your spouse as joint owner in fee simple or fee life, specify the terms in the lease.
In joint ownership, the entitlements in the property will devolve wholly on the surviving spouse if no further caveats are created to imply otherwise. I know there are complex relationships that can arise on joint properties, I leave that with the lawyers to sort out. I will always advise that spouses should jointly own properties, all things being equal.
Question from Readers Hub Member (Dr. Joe): Our resource person has mentioned that a visit to the Lands Commission to verify things before buying land is a good idea. What exactly should we ask for when we go there? I visited Lands Commission recently trying to do some background on some plot of land I was buying, and they wanted site plan and allocation paper first (which would mean that I would have already purchased the land).
Also, in land registration, what exactly is the process one must go through? I’m in Kumasi, and so Manhyia I’m told has a major role to play. So, what role does Manhyia play and what role does Lands Commission play in the process?
Moderator: He also wants you to comment on breeding Corruption within these institutions since a lot of payments are demanded without provision of accompanying receipts.
Guest: I can refer him to people at the lands commission for assistance. Generally, you will need photocopies of the site plan to conduct an official search. Ask for a photocopy, if it’s a genuine land, they will give you a copy. You may also need the plot number. With the plot number, the surveyors or planners can give you an extract to use for the search.
I have a friend at the Otumfuo lands secretariat who can help. Contact me privately later.
Yes, this one [corruption], It’s a big problem.
It’s very undesirable. Both clients and officials are complacent. Let me explain. Under normal circumstances, clients are supposed to push the documents themselves from office to office until it is registered: from survey, to planning, to PVLMD to title registry.
However, because you and I don’t have the time, we just pay without questioning. Deliberately, [some] officials keep the process as along as incomprehensible so that we cannot maneuver. The Client Service unit supposed to help, but they are ineffective at the moment.
At the moment, I can advise that we engage professionals to take us through the process. They will be able to navigate a lot of the unofficial processes that warrant petty payments. Let’s together push the lands commission to outline the processes and give us the respective cost. Am sure, we will get there. Unfortunately, it is deliberately slowed for other reasons.
Question from Readers Hub Member (Mustapha Ghaniyu): Once the land is developed and the lease expires, is there any law that prevents the original owner from declining to renegotiations in the case of a non-renewed lease?
Guest: Yes, the covenants in the lease will spell this out. If Ghaniyu’s land is in Wa, he should read page 2 of the lease under covenants; insist on it and ensure is included in the lease.
Moderator: After purchasing a piece of land and leasing it, can the new owner sell PART of it and what becomes of the original lease with regards to the new tenant?
Guest: Yes, you can always allocate part of the land to another person, but tie it to the head lease. It is advisable to create new covenants over that land or created under the same terms of the head lease. “nemo dat quod non habet”: you cannot give out what you have not.
Question from Readers Hub Member (Mustapha Ghaniyu): What are the exact conditions one has to fulfill necessary for compensation in the case of government reclaiming a developed piece of land?
Guest: We can discuss compensation in full another time. You must prove ownership, or that your interest in the property has been encumbered upon. It is the interest that will be compensated for, and not your ownership per se.
Compensation tries to reinstate you for the loss as if no harm was caused. so, you must prove the loss and its worth to be qualified for compensation. Estate valuation surveyors can assist you in this regard. I have lots of contacts around the country to recommend.
Question from Readers Hub Member (Bigstan): Please enquire from Dr if you allow someone to use your land for farming activities, can the person claim ownership of the land for farming on it for a long time, can the original owner reclaim the land anytime? What time is allowed for such gift of use?
Guest: Not at all. No matter how long use rights exist on land, they cannot mature into ownership. Under normal circumstances, keep reminding the user that you are his land lord and Implore him to perform tenant duties; he should bring you some groundnuts from his farm, some tomatoes, onion, rice among others 🤣🤣.
Such customary protocols consolidate your position as landlord and reminds him of his position as a tenant. Long occupation of land does not mature into ownership.
Moderator: A Follow up; What if the original parties to the agreement are deceased?
Guest: Their next of kin will step in in similar relationship unless they agree to vary the terms subsequently.
Question from Readers Hub Member (Mr. Nuhu Timbile): If [it] happens [that] the land you paid for has already been registered in someone’s name at land title registry. Meanwhile, the chiefs who sold to you had a court ruling in their favour. Can you proceed to register same parcel of land in your name? If yes, what documents do you need to succeed?
Guest: In practice they first of all will reach out to the occupants to renegotiate the terms with them, but if they agree to reallocate the land, they will use the court order to nullify the old leases. Such lands are looming danger but they can also be safe if all things are settled properly. Unless you buy land in good faith without knowing of the old lease, avoid all such lands.
Question from Readers Hub Member (Salima): In the case a spouse is not included in the deed, can he/she claim ownership of it in the case of death or divorce?
Guest: Yes, the spouse is always entitled to the property if the other partner dies intestate. Unless there are other documents that seek to communicate otherwise. Even then, the residence of the couple is reserved for the surviving spouse and children if the deceased died intestate. Put the properties in the names of the people (wives and or children) you want to have them, keep some to protect yourself. They can fight over those when you are gone. 😁
Question from Readers Hub Member (Sam): If someone takes land from the landlords to farm, can he later sell/ lease that land to other people for residential purposes?
If he does, and the original landlords he took it from disagree, can they take back that land?
If they do, through court processes, what happens to innocent persons who acquired parcels of that land from the farmer, especially if they have registered those parcels acquired from the farmer?
Guest: It’s called counterclaim. If you pretend to be a father to your daddy, he simply will sack you from his house. As soon as the farmer asserts ownership, even his farming rights will collapse immediately. The unsuspecting buyers in good faith will have to realign their allegiance to the new landlords, and you may be required to come back and ‘greet them’ properly Else they will reallocate that land. I pray none of us runs into such complications, it’s terrible and disheartening.
Question from Readers Hub Member (Mr. Abubakar Sadik): Under article 20 of the 1992 constitution, whatever interest one has in a proper[t]y can be compulsorily acquired by the state.
Question; what are some of the reasons/purposes before a state can compulsorily acquire these lands and what are the procedures involved?
Guest: Public interest and public purposes: Such security, sanitation, planning, …… Schools, hospitals, stadia.
The government must state the reason for the acquisition and it must be in the interest of the public to create such interest or it must be for a purpose that inures to the direct benefit of the public Like the pharmacy shops at Legon or the banks or the private hostels.
Question from Reader’s Hub Member (Dr Siddique): (1) Mr. “M” bought a plot of land from Mr. “A”: (2) after issuing an undertaking to Mr. M as proof of purchase, also handed his original indenture to Mr. M.
3) This indenture was signed by the landlord but bears the name of ‘A’ How would Mr. M as a third-party buyer handle this indenture which is bearing the name of’ ‘A’?
Guest: He needs to send the old indenture with Mr. “A’s” details and have an assignment created for him. The assignment is another contract between A and M to be registered taking cognisance of the earlier contract between A and his landlord (the lessor).
When you buy land from someone, even if he or she registered it, you have to register it again as a sublease or as an assignment.
Question from Readers Hub Member (Mustapha): What are exact conditions one has to fulfill necessary for compensation in the case of government reclaiming a developed piece of land?
Guest: This depends on the terms and for how long you are taking the land. You must proof your entitlement in the land, identify what interest is affected, estimate the extent of effect and reflect it in money terms.
Question from Readers Hub Member (Mr. Nuhu Timbile): What’s the process of registering a piece of land in Ghana, with specific reference to Accra?
Guest: The process differs slightly depending on whether it is family or stool land. I will give you the general procedure anyways;
Moderator: Dr Joe has this as outstanding. Also, in land registration, what exactly is the process one must go through? I’m in Kumasi, and so Manhyia I’m told has a major role to play. So, what role does Manhyia play and what role does Lands Commission play in the process?
I believe the procedure will apply to his as well. Let’s get the procedure and draw the curtains.
Guest: Yes, am going to give something generally applicable:
Land is a valuable asset to own as its value increases over time. It is then important to make sure that you take all the required and appropriate steps with the land agencies to avoid disputes. Registering land gives you full rights over the land and its development, so make sure to do it right. Find below steps to take before you register land.
Checks
Make sure to carry out thorough checks about the land. You can consider the services of a land lawyer to do the check and research on the land and prove its availability. Conduct checks with government land overseers to establish if the land has been earmarked for any developmental projects.
Acquisition and Negotiation
Once you confirm the availability and suitability of the land, you can begin negotiation. These are friendly steps outlined by one of our friends, which may useful generally.
However, in Accra and Kumasi both deeds and title registrations both apply. The processes are also slightly different. We can look at this write up by Justice Rebecca Sittie, former head of land title registry [Land Title Registration. The Ghanaian Experience]
Moderator: It has been an interesting and educative encounter. The interest shown and the questions that are still trickling in means we would have to hold another session soon. Dr., your parting words.
Guest: Let’s all be careful when buying land. It’s an investment and we should not buy litigation. I entreat all of us to acquire land where you are now, buy land and protect it. And if you need help, as for it from a professional.
It’s been a wonderful time having this discussion. I apologize for all the typos and errors in grammar among others. I am also sure that since we have seasoned lawyers and my seniors in Land Management also here, we can together acquire for everyone a hassle-free land. Thanks for your indulgence.
Moderator: Great submission, Dr. says we should buy land and when we do, we should register it in our names and that of our spouses NOT CONCUBINES.
We will surely have him again to finish up and engage us further with land management as a study area.
Guest: Let me know if you need help across the country. I know people who know people everywhere 🤪
Moderator: Gracias!! Thank you, Dr., and thanks to you all.
Guest: I hope that Senior Franklin Cudjoe will spare me the many blunders. He is a senior land economist.
