Introduction
Real estate is widely regarded as a valuable long-term investment, yet the commercial value of a property does not necessarily translate into a secure or transferable interest in it.
Consider an investor who identifies a property in a desirable location. The price is substantial, but the seller insists that several buyers are interested and for that reason, immediate payment is necessary to secure the property. The documentation raises questions, however the investor proceeds, pays the purchase price and takes possession.
Years later, the investor decides to sell the property. The prospective buyer’s solicitor commences due diligence by investigating the title and discovers a defect. The sale is delayed because the owner is required to resolve the defect before the transaction can proceed, thereby causing the buyer to eventually withdraw the offer.
This scenario illustrates a significant risk in Nigerian property transactions: acquiring a property does not necessarily guarantee the ability to resell it. A property may be commercially attractive and even remain in the purchaser’s possession for several years yet become difficult to sell because of defects in the title acquired or deficiencies in the documentation supporting ownership. Such defects may raise questions about the validity or extent of the purchaser’s interest, discourage prospective buyers, complicate due diligence, and ultimately delay or frustrate a subsequent sale. This underscores the importance of verifying the vendor’s title, conducting comprehensive legal due diligence, and ensuring that all necessary documentation and title perfection requirements are addressed at the point of acquisition.
This article examines common title defects, their implications for resale, the extent to which they may be remedied, and the practical steps purchasers and existing property owners can take to protect their interests.
1. Understanding Defective Title
Title to property refers to the legal interest or rights a person holds in land, including the basis upon which those rights may be established, enforced, or transferred to another person. A defect in title arises where there is a legal deficiency or irregularity affectting the existence, validity, extent, priority or transferability of those rights. Such defects may cast doubt on the owner’s ability to establish good and marketable title, thereby creating difficulties when attempting to sell, mortgage or otherwise deal with the property.
One common defect is a defective root of title. A vendor may rely on a deed of assignment, certificate of occupancy or other document as evidence of ownership, even where the person from whom the vendor derived title had no valid or transferable interest in the property. The mere possession of title documents does not, in itself, establish good title, particularly where there are deficiencies in the chain of ownership. The principle nemo dat quod non habet – that a person cannot ordinarily transfer a better title than they possess – becomes relevant in such circumstances.
In Idundun v Okumagba (1976) 9–10 SC 227 [1], the Supreme Court identified five(5) recognised methods of proving ownership of land: (i) traditional evidence; (ii) production of documents of title that are duly authenticated, with their due execution proved; (iii) acts of ownership extending over a sufficient length of time and sufficiently numerous and positive to warrant an inference that the person is the true owner; (iv) acts of long possession and enjoyment, which may constitute prima facie evidence of ownership; and (v) possession of connected or adjacent land in circumstances that make it probable that the owner of that land also owns the land in dispute. The third and fourth methods must be distinguished. The third focuses on affirmative acts of ownership such as selling, leasing, renting or farming the land that, viewed collectively and over time, support an inference of ownership. The fourth focuses on long possession and enjoyment, which may raise a presumption of ownership but does not necessarily prevail against evidence establishing a better title.
However, the production of a document of title does not automatically establish ownership where the validity of the underlying interest is in question.
Other title related risks may arise from competing family or communal claims, an existing mortgage, pending litigation, government acquisition, an inaccurate survey plan, or a vendor who lacks the requisite legal capacity or authority to sell. In family or communal property transactions, for instance, a purported sale may be challenged where the necessary consent or participation of persons authorised to alienate the property have not been obtained. Similarly, an undisclosed mortgage or other encumbrance may restrict the vendor’s ability to convey the property free from third-party interests. A property may also be affected by incomplete consent or registration requirements.
The above problems are not legally identical. A dispute over whether the vendor owns the property is fundamentally different from a transaction in which the vendor has a valid interest but has not completed an administrative or perfection requirement. While the former may call into question the vendor’s legal entitlement to transfer the property, the latter may affect the enforceability, priority, admissibility or marketability of the purchaser’s interest, depending on the applicable statutory requirements and circumstances of the transaction. The appropriate response depends on the nature of the defect, the applicable law and the documents governing the transaction.
2. The Legal and Commercial Consequences of Defective Title
A title defect may remain unnoticed while the purchaser occupies, develops or collects rent from the property. However, its legal and commercial implications often become apparent when the owner seeks to sell, mortgage or otherwise transfer an interest in the property, particularly where the proposed transaction requires independent verification of title.
A prospective purchaser will ordinarily want to establish that the vendor has a valid and transferable interest, that the property is sufficiently identified, and that no competing rights or encumbrances will undermine the proposed acquisition. The purchaser’s solicitor may therefore investigate the root of title, examine the transaction documents, conduct relevant registry and survey searches, and identify outstanding consent or registration requirements. Depending on the circumstances, these investigations may also extend to verifying the vendor’s authority to sell, examining the property’s ownership history, and confirming whether any existing encumbrances or adverse claims have been properly disclosed.
If those investigations reveal a defect, the prospective purchaser may decline to proceed until it is resolved. Alternatively, the purchaser may seek additional assurances, require the vendor to remedy the defect before completion, or renegotiate the purchase price to reflect the identified risk. A lender may also be unwilling to accept the property as security where the interest offered is uncertain or difficult to enforce.
The consequences may include delay, additional professional and administrative costs, a reduced negotiating position, loss of a prospective buyer, or litigation. In some cases, the vendor may incur substantial expenses attempting to regularise the title or resolve competing claims, without any guarantee that the proposed sale will ultimately proceed. Where the defect is fundamental, the owner may be unable to transfer the interest they intended to sell at all.
The decision in Adole v Gwar (2008) 7 NWLR (Pt. 1091) 353 [2] illustrates why documentary evidence must be assessed in context. The Supreme Court reaffirmed the principle that a Certificate of Occupancy is not conclusive proof of a valid title; it is prima facie evidence that may be challenged where a competing or superior interest is established. A certificate should therefore not be treated as an automatic cure for an underlying defect. Consequently, a prospective purchaser must look beyond the existence of a Certificate of Occupancy and investigate the validity of the interest upon which it was issued.
3. Governor’s Consent, Registration and Perfection
Nigerian land transactions often involve several steps, including obtaining the necessary consent, paying applicable duties and registering the relevant instruments. Although an unperfected title is not necessarily defective, incomplete perfection can create legal and commercial obstacles to resale.
Governor’s consent – Section 22 of the Land Use Act generally prohibits the alienation of a statutory right of occupancy without the Governor’s consent by assignment, mortgage, transfer of possession, sublease or otherwise. Section 26 addresses the consequences of transactions or instruments that purport to confer interests contrary to the Act.
However, the consent requirement does not mean that every preliminary agreement made before consent is obtained is automatically unlawful or void. The distinction between an agreement to alienate an interest and the completed alienation of that interest is therefore important.
In Awojugbagbe Light Industries Ltd v Chinukwe [3], the Supreme Court considered the effect of the statutory consent requirement on transactions entered into before the requisite consent had been obtained. The decision supports the distinction between entering into an agreement in anticipation of consent and completing an alienation in contravention of the Land Use Act. Depending on the terms and circumstances, the agreement may remain inchoate until the necessary consent is obtained.
The decision in Brossette Manufacturing (Nig.) Ltd v Ola Ilemobola Ltd [4] further illustrates that the legal effect of an agreement must be assessed in light of the consent requirements and the actual terms and circumstances of the transaction. Accordingly, the absence of Governor’s consent should not be considered in isolation from the nature of the agreement and the stage reached in the transaction.
Consequently, when a defect is discovered during resale, it is necessary to determine whether the original transaction remains capable of being perfected, whether the required consent can lawfully be obtained, and what effect the outstanding requirement has on the interest already acquired. Until these issues are resolved, a prospective purchaser may be reluctant to proceed, particularly where the vendor cannot demonstrate a clear and transferable interest in the property.
Registration and perfection – Registration is another important aspect of land transactions. In Lagos State, the applicable framework includes the Lagos State Lands Registration Law 2015, alongside other relevant legislation and administrative requirements. Registration plays an important role in maintaining public records of interests in land and protecting the legal position of parties to property transactions.
A purchaser should distinguish between having an executed instrument, obtaining any necessary statutory consent, paying applicable duties and fees, and completing the relevant registration process. These steps serve different purposes and should not be treated as interchangeable. The completion of one step does not necessarily dispense with the requirement to comply with the others.
Nevertheless, an unregistered instrument does not invariably mean that the purchaser has no legally recognisable interest. In Okoye v Dumez (Nig.) Ltd,[5] the Supreme Court recognised that an unregistered registrable instrument, in the circumstances considered by the Court, could establish an equitable interest where the purchaser had paid the purchase price and entered into possession. The Court also considered the effect of a subsequent purchaser for value without notice of that prior equity.
The case demonstrates why the legal consequences of non-registration must be considered carefully. An equitable interest may be enforceable in appropriate circumstances, but it should not be confused with a fully perfected legal interest or assumed to resolve every defect in a transaction. From a resale perspective, incomplete registration or perfection may create uncertainty for prospective purchasers and lenders, resulting in additional due diligence, demands for regularization or delays in completing the proposed transaction.
4. Can a Defective Title Be Remedied?
Not every title defect makes a property permanently unsaleable. The critical question is whether the defect can be resolved through appropriate legal or administrative steps or whether it affects the fundamental validity of the owner’s interest in the property. It is pertinent to mention that, some defects are potentially curable. These may include outstanding registration or perfection requirements, missing documents that can properly be obtained, statutory consent capable of being secured, or discrepancies in survey plans or property descriptions that can be corrected. In such cases, the owner should identify the deficiency, determine the steps required to remedy it and establish whether these can be completed before the proposed sale. A prospective purchaser may agree to proceed subject to appropriate contractual safeguards, including making the rectification of defects a condition precedent to completion.
However, some defects are more fundamental. Where the vendor never acquired a valid transferable interest, registration or perfection alone cannot cure the defect. Resolving such issues may require a fresh conveyance from the rightful owner, settlement of competing claims or judicial determination.
Other circumstances, including pending litigation, government acquisition or existing encumbrances, require separate consideration. Their effect on the owner’s ability to transfer the property largely depends on the nature and extent of the competing rights or restrictions.
Where the defect cannot be remedied, the purchaser may have recourse against the original vendor. Depending on the circumstances, available remedies may include rescission, recovery of the purchase price, damages for breach of covenant for title or misrepresentation, subject to the applicable legal requirements and limitation periods.
5. What a Property Owner must do when acquiring a property
A. Before Purchasing a Property
A prudent purchaser should engage a competent property lawyer to conduct comprehensive due diligence before committing substantial funds on a property. Depending on the nature of the property and the transaction, the investigation should include:
- Root of title: Verifying the vendor’s ownership history and the validity of the interest to be transferred.
- Registry searches: Examining relevant land registry records for registered interests, encumbrances and competing transactions.
- Survey and property identification: Confirming the property’s boundaries, survey details and any applicable government acquisition or planning restrictions.
- Existing claims: Investigating pending litigation, family or communal disputes, mortgages, and other adverse interests.
- Authority to sell: Establishing the vendor’s legal capacity and authority to dispose of the property.
- Perfection requirements: Identifying applicable consent, stamping and registration requirements and ensuring that responsibility for completing them is clearly documented.
B. Where a Defect Is Discovered After Purchase
Where an existing owner discovers a defect in title after the purchase, the appropriate course of action will depend on the nature of the defect and legal consequences. The owner should seek legal advice to determine whether the defect can be remedied through regularisation, correction of documentation or resolution of competing claims.
Where a sale is contemplated, identified title deficiencies should, where practicable, be addressed before the property is offered for sale. This may minimise delays, additional costs and the risk of losing prospective purchasers.
Where the defect is fundamental and cannot be remedied, the owner should consider the available legal remedies against the original vendor.
Conclusion
A property’s value depends on more than its location, physical condition or potential for appreciation The ability to establish and transfer good and marketable title is equally important. While some title defects may be remedied through appropriate legal or administrative processes, others may fundamentally undermine the owner’s ability to sell or otherwise deal with the property.
For prospective purchasers, thorough legal due diligence before acquisition remains an essential safeguard against avoidable title-related risks. For existing owners, identifying and addressing title deficiencies early can prevent complications during a subsequent sale.
Ultimately, ownership or possession of a property does not, in itself, guarantee the ability to transfer good and marketable title. Ensuring that title is properly investigated, documented and where necessary perfected is therefore essential to safeguarding the owner’s legal interest and preserving the property’s commercial value.
Author
Jessica Onyinyechukwu Osademe
Trainee Associate
Rosewood Legal
Co-author
Lateefat Omotomilola Hakeem-Bakare
Principal Partner
Rosewood Legal
Published on Friday, October 30, 2026
References:
[1]Chief D.O. Idundun & Ors. v. Chief Daniel Okumagba & Ors. (1976) 9–10 S.C. 227 at 246, [2]S. O. Adole v. Boniface B. Gwar (2008) 11 NWLR (Pt. 1099) 562 (SC), [3] Awojugbagbe Light Industries Ltd. v. P. N. Chinukwe & Anor. (1995) 4 NWLR (Pt. 390) 379 (SC), [4]Brossette Manufacturing (Nig.) Ltd. (now Automobile & Engineering Industries (Nig.) Ltd.) v. M/S Ola Ilemobola Ltd. & Ors. (2007) 14 NWLR (Pt. 1053) 109 (SC), [5]Dr. Joseph C. Okoye (trading as Oskol Steel Construction Company) v. Dumez Nigeria Limited & Anor. (1985) 1 NWLR (Pt. 4) 783 (SC)