Land & Property Sales in Ghana: Property Purchase Process
The modern law of leases in Ghana is derived substantially
from the English common law. Many features of the English
common law of leases are unknown to our customary law. The
modern tendency is for almost all leases except some agricultural
leases to take the form of the English common law lease, which
are now part of the laws of Ghana.
A lease is an interest in land, which is created to last
for a fixed period. Every lease must therefore have a date
on which it commences and a date on which it must expire although
it may, in certain circumstances, be terminated before the
actual date fixed for its expiration. For example, the lease
itself may contain an express provision for its termination
before the date fixed for its expiration, or the parties may
agree that the lessee shall surrender that unexpired residue
of the lease.
The person who creates a lease, usually an allodial or freehold
owner of land, is know as the lessor and the person to whom
the lease is granted is know as the lessee. Although a lessor
grants to a lessee the right to exclusive possession of the
property leased, this does not divest the lessor of all his
interest in the land. Since the lease is for a fixed period,
the lessor is entitled to repossess the property when the
lease comes to an end and is known as a reversion. It is a
present interest in land which entitle the lessor to all the
rights and privileges of a landlord e.g. to receive rent and
to enforce the provision of the lease.
A lease is a contract between the lessor or landlord and
the lessee or tenant whereby the lessee is granted exclusive
possession of land for a fixed period upon terms and conditions
agreed upon between the parties. Like any other contract,
a lease should embody all the material terms and conditions,
which the parties intend to be binding on them.
These must include
- The identity of the lessor and lessee and the respective
capacities in which they are contracting;
- The precise area of the land to be lease must be accurately
described; · Period of the lease must be clearly
stated;
- The consideration for the lease. This usually takes the
form of a rent payable annually or in such manner as the
parties agree. The consideration may however, take form
Covenants, stipulations and conditions. There various covenants
which the law implies in a lease. Apart from these implied
covenants the parties must clearly specify any other covenants
and any conditions and stipulations, which they intend to
be binding on them.
Validity of Title/Legal Interest of Owner
The potential buyer has to investigate the nature of ownership
or validity of title to the property. Investigation into the
title held by the property-owner may be done through a search
at the Lands Commission Secretariat or Land Title Registry.
This may be officially carried out and well documented. The
key points to look for includes the nature of interest, e.g.
Leasehold or freehold, evidence of encumbrances, noted proposals
by the state/government and/or outstanding obligations like
atonement due to recent court judgement.
Conducting Technical Search at the Town and Country Planning
and Geological Survey Departments; to ascertain the planning
scheme of the area, any future planning proposals by the government
and finally the geological format i.e. earthquake, waterlogged
areas
Domestic/Environmental Investigations
Apart from any official search conducted and any other form
of information given to you by the prospective property owner,
look for "domestic" information when you visit the
property. Features on the property must be well scrutinized
for clues that might suggest a previous sale. Also, neighbors
must be interviewed to ascertain whether or not they know
anything adverse to the sale.
Social Searches by investigating the ownership through residents
of adjoining properties, to ascertain whether it is a family
or estate property, including the background of the owner
his credibility and a thorough personal due diligence.
Transfer of Property
After a successful title-search and full satisfaction with
the integrity of the sale, the way is opened for the deal
to be executed.
A legal expert, preferably a lawyer must be engaged to draw
up the instrument of transfer (indenture) namely, Deed of
Conveyance, Deed of Lease, Sub-lease, Deed of Assignment,
etc. The prescribed form of the instrument may be verified
from the Lands Commission Secretariat. Appropriate forms may
be purchased from the Land Title Registry. All documents must
be signed with their site-plans and where applicable consent-applications.
All signatures and concurrent signatures of subscribing witnesses
must be endorsed on the instrument.
Exchange and Payment / Closing
At this stage, that is, after execution of the transfer,
the buyer can pay for the property. The payment may take place
at the solicitor's office or closed at the location of the
property (land/house) whichever is convenient. Some properties
may be paid for even though the buyer may not get immediate
possession. In such a situation, an expert to regulate the
transaction may draw up a contract for sale.
Registration of Title
The purchaser may submit his/her indenture to the Lands Commission
Secretariat for registration. Appropriate Statutory fees must
be paid to get the registration done.
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