Registration of Land In Ghana: What has changed and what remains?
Intro
acquisition of land in Ghana for the longest time has been an extreme sport. For many, it is even more challenging because of a lack of education about how Ghana’s land tenure system works. In Part 1 of this article, the pre-contract stage of land acquisition was discussed. In this addendum, the focus will be on the registration of a title or an instrument relating to land.
After Due Diligence, what next?
After the preliminary due diligence has been conducted, the purchaser of land must turn to the abstract of title. This is a document which chronicles the transactions that have taken place on the land. It also demonstrates how the vendor came to own the land. Where entries on the abstract do not add up, they must be requisitioned. This means that the purchaser must ask the seller to explain the inconsistencies satisfactorily.
When the buyer is satisfied with the answers of the requisition, the seller would then have to draft the contract of sale. The contract must properly identify the parties, the property, the interest to be transferred and the conditions of sale. The contract is usually drafted in duplicate and both parties sign both copies.
From here, the seller’s solicitor would draft two copies of the deed of conveyance and send them to the purchaser. Under the old law, judges could overlook the lack of the vendor’s signature. Under Act 1036, these documents must be signed by both parties and be witnessed by at least one person. If the buyer is a corporate body, the deed must be signed by the necessary directors and stamped with the company’s seal.
After signing, the witness must execute an oath of proof. This oath simply confirms that the witness was present and saw the buyer who could read and understand the document sign it. If the buyer cannot read the document, then in addition to the oath, a jurat must be provided. The oath of proof could be sworn before a Commissioner for Oaths, the Registrar of Lands or a Registrar of the High Court.
From there, the instrument must be sent to the Valuation Division of the Lands Commission for stamp duty to be assessed. This is a precondition for registration. And it must be done within two months from the date of signing. An unstamped document is also inadmissible as evidence in court. Once the duty has been paid and the document stamped, the registration process can begin.
Registration
Registration is a crucial part of the land acquisition process. Registration serves as actual notice to the whole world of the interest that has been registered. As a result, no one can be a bona fide purchaser of land for value without notice of the registered interest. Additionally, apart from wills and judges’ certificates, all other instruments relating to land must be registered otherwise they will be void and of no effect. This is the tenor of section 227 of the Land Act.
In Ghana we have three systems of land registration; title registration, deeds registration and customary land registration. Each of these is governed by the Land Act, 2020 (Act 1036).
Customary land Registration
One of the innovations of the new Act is the establishment of a customary land secretariat under the Office of the Administrator of Stool Lands. This secretariat is responsible for recording interests pertaining to stool, skin, clan or family land. The responsibility to document customary transfers falls on the stool, skin, family or clan. Thus, much emphasis will not be placed here. Registering with the secretariat does not take away the need to register the deed or title.
Deed and Title Registration
This brings us to registration of deeds and titles. Before the promulgation of Act 1036, deeds registration was governed by the Land Registry Act, 1962 (Act 162). Title registration was done under the Land Title Registration Act, 1968 (PNDCL 152). Under PNDCL 152, registration of titles could only be done in registration districts. These are Accra, Tema and some parts of Kumasi. The new Land Act does not expressly prohibit the registration of titles outside registration districts. Neither does it make title registration open to all districts. It would appear however, that the Lands Commission continues to register lands based on the former regime. This may be because of some of the other provisions of the new Act and the practicalities of changing the regime. Before a title can be registered, the land for which the title is sought must be plotted on a master map of the area. Unfortunately, these maps have only been carted in the pre-existing registration districts. In the absence of these maps, only a deed registration can be done.
One may wonder whether it makes any difference whether a deed is registered or a title. Title registration confers ownership. Deeds registration merely registers the transactions that have taken place on the land. Some other documents, such as an abstract of title, would be required to prove ownership. Though they have different effects, the processes of registration are very similar. This brings us to the procedure for registering an interest in land.
Procedure for Title Registration
Within 3 months after the completion of the contract and the execution of the instrument of transfer, the title to the land must be registered if the land is in a registration district. Waiting for longer than three months attracts a monetary penalty. In the meantime, the Lands Commission would register the land in the name of the State as a trustee until the real owner shows up. The registration is done by submitting a bar coded site plan together with the application form (Form 2) and copies of the title deed to the Lands Commission Lands Registry Division. The Commission would require further proof of ownership. So, they may ask the applicant to produce any or all of the documents mentioned in the recitals of the title deed. Once these have been provided, The Lands Commission does its own search within its database to ascertain whether there has been any prior registration in respect of the same land.
Where another title has already been registered, the application will be rejected. The commission will also refuse to register a title if the grantor of that title does not have the capacity to deal with the land in the manner that the instrument purports to have done. If the instrument to be registered otherwise contravenes an enactment or has changes which have not been verified by the signatures of those who signed it, the registration would not be done.
When the Land Registrar decides to reject an application, the applicant is notified and given thirty days to present the necessary documents to rectify the error. If the applicant does not respond or the response is unsatisfactory, the application will be refused. A person who is aggrieved by the Registrar’s decision may refer the matter to the Regional Lands Commission or to ADR under the ADR Act, 2010 (Act 798). The Registrar is bound by the outcome of the dispute resolution process. From here, the successful disputant may continue with the registration process as if it had never been abated.
If the Lands Commission finds no fault with the documents or in its searches, or the disputant is successful, the Commission will register the interest. It does this by opening a folio in which the particulars of the proprietor of the land, and the interest he or she has aOAKSuired are entered. The particulars of the site plan are also entered on the registry map so that the land can be easily identified. If the application is successful, the applicant will be informed within 90 days. And a Land Title Certificate is issued to the person.
Procedure for Deeds Registration
In many ways deeds registration is similar to title registration. Only that when making an application for deeds registration, a site plan and the instrument are not enough. The applicant must add an abstract of title. This must include a good root of title, i. e. an enactment; grant, vesting order or conveyance from the State; a final judgment of a court of competent jurisdiction; or conveyance which is at least thirty years old and establishes that a person is entitled to convey an interest in the land.
It is also important to note that the instrument to be registered must be in writing. It could either be on durable paper or parchment or stored electronically. Oral contracts or instruments cannot be registered. This reiterates the need for the formal process that was mentioned in the previous article.
Advantages and Limitations of Registration
Registered instruments take effect from the date of registration. In limited instances an instrument may take effect a few months prior to the actual date of registration. Once registered, a land title certificate confers an indefeasible title on the holder. This title would however not prevail against a judgment of a court of competent, or a person whose rights have accrued from the operation of section 17 of the Limitations Act. A registered title would also not prevail against a person who has been in possession of the land and who can prove ownership by some other means. In addition, the principles of notice, fraud and mistake will also apply.
Key Takeaways
The key things to remember are that registration is a crucial part of the land acquisition process. Once the contract is completed and the deed of transfer signed, it must be stamped. From there, if your land is in Accra, Tema or parts of Kumasi, you must necessarily register your title within three months or risk paying an additional sum. And if your land is located anywhere else in Ghana, you must register the instrument of transfer as quickly as possible or risk having someone else taking advantage of your laziness to rob you of your land.
References
- Ghana Land Law and Conveyancing, 2nd Ed., B.J. da Rocha and C.H.K. Lodoh, 1999.
- Conveyancing and Drafting, Study Manual 2021, Ghana School of Law.
- Registrable Transactions: Boateng v Dwinfuor [1980] Vol. XII RGL 166—175, Agbosu L.K.
