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.
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.
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.
WHO MUST GIVE CONSENT FOR SALE TO BE 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.
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.
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).
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.
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.
To conduct a sale of family assets, the information proffered here is priceless. Be guided!
Ed's Note - This article was originally posted here.
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