Deed of Assignment in Real Estate

Posted on Friday, September 11, 2020

DEED OF ASSIGNMENT IN REAL ESTATE INDUSTRY

In Nigeria, buying and selling of real estate property requires quite a number of legal documents you’ll realise you need to sign. After all, the transfer of property from one party to another (some of which can amount to millions of Naira), is no small matter!

A Deed of Assignment is one of the legal documents to acquire if ownership of real estate property is to be authentic. It is the legal instrument of transfer used in real estate transactions to transfer legal title or the ownership of real estate property from the title holder (called the assignor) to another called the assignee.

A Deed of Assignment refers to a legal document which an assignor states his willingness to assign the ownership of his property to the assignee. The Deed of Assignment is required to effect a transfer of property and to show the legal right to possess it. It is the written proof of ownership which stipulates the kind of rights or interests being transferred to the buyer which is a legal interest.

CONTENTS OF A DEED OF ASSIGNMENT

Content of a Deed of Assignment matters a lot to the transaction and a special skill is needed for a hitch free transaction. The contents of a deed of assignment can be divided into 3 namely; the introductory part, the second (usually the operative part), and the concluding part.

THE INTRODUCTORY PART

The introductory part enumerates the preliminary matters such as the commencement date, parties in the transaction, and recitals.

The parties mentioned in the deed must be legal persons which can consist of natural persons and entities with corporate personality, the name, address and status of the parties must be included. The proper descriptions of the parties are assignor (seller) and assignee (buyer).

The Recitals give the material facts constituting the background to the current transaction in chronological order.

THE SECOND PART (USUALLY THE OPERATIVE PART)

This is the part where the interest or title in the property is actually transferred from the assignor to the assignee. It is more like the engine room of the deed of assignment.

The operative part usually starts with testatum and it provides for other important clauses such as the consideration (price) of the property, the accepted receipt by the assignor, the description of the property and the terms and conditions of the transaction.

THE CONCLUDING PART

The concluding part of the transaction is the key aspect of the whole transaction because all the parties in the transaction must show testimonium, execution and attestation.

The testimonium: this shows that all the parties are involved in the execution of the deed.
Execution: this means signing. The capacity of the parties (either individual, corporate bodies, illiterates) is of great essence in the mode of execution.  It is important to note that the type of parties involved determines how they will sign. Example 2 directors or a director / secretary will sign if a company is involved. In the same way if an association, couple, individual, illiterate, family land (omonile), firm, unregistered association etc. is involved the format of signature would be different. 

Attestation: this refers to the witnessing of the execution of the deed by witnesses.

ENDORSEMENT FOR GOVERNOR’S CONSENT.
For a Deed of Assignment to be effective, it must include a column for the Governor of the state or a representative of the Government where the property is, to sign/consent to the transaction. By virtue of Sec. 22 of the Land Use Act, and Sec. 10 Land Instrument Registration Law, the Governor must consent to the transaction. 
Sec. 22 Land Use Act provides:
“It shall not be lawful for the holder of a statutory right of occupancy granted by the Governor to alienate his right of occupancy or any part thereof by assignment, mortgage, transfer of possession, sublease or otherwise howsoever without the consent of the Governor first had and obtained.
Sec. 22(2): The Governor when giving his consent to an assignment, mortgage or sublease may require the holder of a statutory right of occupancy to submit an instrument (deed of assignment, deed of legal mortgage, deed of lease, etc.) executed in evidence of the assignment, mortgage or sublease and the holder shall when so required deliver the said instrument to the Governor in order that the consent given by the Governor under subsection(1) of this section may be signified by endorsement thereon.

It is important to note that If Mr. A purchases a property and does not proceed to the next stage which involves applying for Governor’s consent, stamping and registration of the Deed of Assignment, and the same property is sold to Mr. B who goes ahead to obtain Governor’s consent, stamp and register his Deed of Assignment, Mr. A’s Deed of Assignment is generally worthless and Mr. B. acquires a better title.

It is however pertinent to note that franking is an essential feature of a deed of assignment. This is the endorsement of the name, address, seal and stamp of the legal practitioner who prepared the deed of assignment. This is duly provided for in Rule10 of the Rules of Professional Conduct (2007) which provides thus “A lawyer acting in his capacity as a legal practitioner shall not sign or file a legal document unless there is affixed on any such document a seal and a stamp approved by the Nigerian Bar Association”.

Real Estate legal agreements may be lengthy and dreary to read through, but it’s important to not simply gloss over one if you’re going to end up signing it, always try to engage real estate professionals like KingsCourt Realtors to lead you through the processes.

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