TCM ATTORNEYS

22/06/2020

ACQUIRING TITLE TO LAND THROUGH ADVERSE POSSESSION

Adverse possession is a principle of real estate law whereby somebody who possesses the land of another person for an extended period of time may be able to claim legal ownership to that land. It is, in effect, a set of rules that allow a mere trespasser to acquire a better title to land than the person who ‘legally’ owns it and to whom it was formally conveyed.

Our understanding of the concept of adverse possession is that adverse possession is a possession inconsistent with the title of the true owner. The owner could dislodge the adverse possessor at any time within the limitation period. A Limitation Period is the time limit prescribed by Law, during which a cause of action must be brought. If the action is not brought within the period of limitation, then the cause of action expires and it can never be brought. In other words, the fact that an owner fails, refuses or neglects to maintain an action against an adverse possessor may result in owner's forfeiture of the land.

Some Classifications of Adverse Possession

1). Encroachment upon neighboring land.

2). Where a formal relationship at one time existed between the parties e.g. where a tenant or mortgagor holds land adversely to the interests of his landlord or mortgagee. Also, occasionally, a purchaser of land enters into possession under an incomplete agreement for sale, or the vendor does not complete a transfer of the land to the purchaser. In these cases, the holding of the purchaser, tenant or mortgagor may well become adverse. In such situations, adverse possession throughout the limitation period would entitle the occupant to claim a transfer of the title to him. The onus will be on the claimant to demonstrate that a possession which began by being derivative has become adverse and independent.

3). Where an adverse possessor occupies land in an ostensibly deliberate manner e.g. in the case of abandoned land.

4). Where an informal arrangement may lead to an adverse possession i.e. where a party with permission, for example, a licensee holds adversely to the person strictly entitled. Thus, one who was originally tolerated or encouraged to occupy land may eventually claim the land for himself.

Basic Principles of Adverse Possession

For Adverse Possession to ripen into title, it must be:

i). continuous;
ii). hostile to the interest of the true owner;
iii). open and notorious, so as to put the true owner on notice that a trespasser is in possession;
iv). actual, so that the true owner has a cause of action for trespass, on which the true owner must act within the statute of limitations and
v). exclusive, in order that there be no confusion as to who acquires title once the time has run.

The Limitation Period

The length of time a squatter may be in adverse possession before the owner is statute-barred from bringing an action against him is 20 years (for state ownership) and 12 years (for individual ownership). See Section 16 (1) and (2) (a) of the Limitation Law, Laws of Lagos State of Nigeria, 2003.

It is instructive to note that on the expiration of the period fixed by law for any person to bring an action to recover land, the title of that person to the land shall be extinguished.

Stopping the Clock of Limitation

A successful action for possession by the owner of the land before the expiry of the period will necessarily "stop the clock" and any claim of adverse possession will have to begin afresh.

Other matters that can stop the clock of Limitation include: where the squatter acknowledges the owner’s title in writing or accepts a lease. Likewise, the payment of rent is also an acknowledgement of the owner’s title. Also, a written offer by the squatter to purchase the land from the owner is treated as an acknowledgement.

Once the limitation period has expired, any subsequent acknowledgment does not revive the owner’s right of action.

In conclusion, it is settled law that once the limitation period has run its course, both the owner’s right to sue and his title are extinguished by operation of law. A successful plea of adverse possession by the adverse possessor does not transfer the owner’s title to him. It operates negatively, to prevent the owner from suing the adverse possessor and extinguishes the title. Moreover, because the adverse possessor is not a purchaser, he takes the land subject to all proprietary obligations, whether registered or not.

01/06/2020

DID YOU KNOW?

1.) Always remember to protect your family and business from unforseen legal risks. Reach out to your lawyer as you enter into agreements or make major life or business decisions.

2.) Never sign anything without getting a copy or taking a picture. Save yourself potential millions of Naira and up to several years in court by asking for a copy.

3.) Do not delay preparing for the unexpected; create a Will or Trust. Families are so grateful to know the wishes of the deceased when any death, expected or not, occurs.

4.) At the scene of any incident, always endeavour to get information.

5.) Do not admit liability until you talk to an Attorney. Do not speak rashly without realizing the legal ramifications, it is okay to simply remain silent and, if necessary, wait until you are able to speak to an attorney.

6.) Get agreements in writing. Courts cannot easily unravel verbal agreements but in the case of written contracts, courts are actually prohibited from considering anything outside the “four corners” of the contract.

7.) Employers and Employees are both protected by law. An Attorney would help your company to make sure that rights are respected, defend the company when frivolous claims are made and help employees whose rights have been infringed to get justice.

8.) You have rights as a Landlord or Tenant. Don’t be afraid to negotiate a contract to protect yourself.

9.) Use Professionals. Get or consult with a lawyer. You can take comfort in knowing that a trained professional will look over your issue and that lawyers are bound to keep the issues confidential.

27/07/2016

27/07/2016

8 REASONS WHY YOU NEED TO MAKE A WILL

The impermanence of human life is one thing that is guaranteed and that is why the law allows any person (from the age of 18 and above) to have the opportunity of ordering his affairs in his lifetime through the making of a Will which speaks after his death.

Do you wish to give directives on the distribution and management of your estate after you have been laid to rest? Then, you need to make a Will. If a person dies intestate (without leaving a Will), the law will step in and a rigid set of rules, known as Rules of Intestacy will dictate what happens to the deceased person’s property and money.

No estate is too small for making a Will, you can make a Will over a nickel and dime if that is all you own because you certainly would want a person of your choice to have it on your departure.

Even after giving out all of your possessions with directives in a Will and subsequently you acquire new properties or have new directives, all you need do is alter your Will by making a Codicil which supplements the Will.

So, here are the 8 important reasons to make a Will:

1. To avoid the problems of intestacy. A Testator (the maker of a Will) is able to choose who he wishes to inherit his assets but where there is no Will, the rules of intestacy (customary laws) will govern the estate of the deceased and persons whom the deceased may not wish to benefit from his estate may gain from it, while those whom he may desire to benefit may be deprived and this can lead to his dependants suffering unintended hardship or family disputes arising.

2. To avoid unpleasant and costly inheritance disputes that may arise once you are no more. A Testator may have the freedom to make his Will as he desires but the law enables certain categories of persons to challenge the distribution of the estate if the deceased failed to make reasonable financial provision for them. So, a Will enables the Testator to record his wishes and offer an explanation for how the estate is to be divided. This can be considered if the Will is contested and may even prevent such challenge altogether.

3. To demonstrate your wishes and desires. You are able to pass items of sentimental value to a particular member of your family who will appreciate and enjoy them. For example, a valuable jewellery, family photographs, precious works of art and other mementoes may be given to a particular member of your family to ensure they are retained in the family. You can also express your desire to give to charity, friends or a mistress. By making a Will, you ensure that you provide for all the people you care about.

4. You can specify your funeral wishes. Making a Will enables you to leave instructions on your final farewell. Whether it is a quiet wake or a befitting burial that you desire, this is your chance to have a say in your send off. You may even specify in your Will that you want to donate your body to medical research.

5. Making a Will saves time and money. This is because the personal representatives derive their authority from the Will and begin to act immediately but where the deceased dies intestate, the administrators will have to apply and wait for letters of administration to be issued before they begin to act. The grant of letters of administration is expensive and where an administrator acts on the estate without a grant of probate, his action may be set aside.

6. You can appoint persons you trust as guardians to look after your young children and provide appropriate care for them when you are no more. Remember to consult the prospective guardians beforehand to ensure they are willing to act before naming them.

7. You have the choice of appointing personal representatives (executors) to administer your estate and by so doing, you are able to choose persons whom you trust and have your interest to carry out your wishes but where no Will is made, the courts may appoint administrators without the deceased having any choice in their appointment. If you have no suitable family or friends to act as your executors, or if you think it might be useful to appoint someone from outside the family (to avoid the possibility of arguments) then you can appoint a solicitor to act as executor. Where a Will is made, extended powers can be conferred on executors beyond that contemplated in the rules of administration of estate in the jurisdiction.

8. You will have peace of mind because you have put your affairs in order and your estate will be divided as you wish and you can ensure that the people you choose will administer your estate.

If you would like to arrange to discuss the benefits of making a Will with a member of our team, please send your mail to [email protected] or call Corinne on +2348038160629

18/05/2016

DID YOU KNOW WHY IT IS VERY IMPORTANT TO REGISTER YOUR BUSINESS?

Registering your business with the government as a limited liability company, partnership or sole proprietorship is a smart choice for an entrepreneur for a variety of reasons:

1. You create a reputation of credibility and trust for your business. Potential customers are more likely going to have more confidence in dealing with a registered business rather than an unregistered one. Registration of business provides a more professional image for an entrepreneur and larger companies have a preference of doing business with registered businesses or limited liability companies.

2. It is a requirement of law. Sections 573(1) & 19(1) of the Companies and Allied Matters Act, Cap. C20, Laws of the Federation of Nigeria, 2004 require the registration of a business or company by an entrepreneur(s) before business can be carried on in Nigeria and failure to do so amounts to an offence which attracts a penalty.

3. You are issued a certificate of registration which is a prima facie evidence of your compliance with the law and that your business is authorized to be registered and duly registered under the law.

4. You protect your business or company name. Once your business or company name is registered, no one else within the country would be able to register and use that name or a similar name; hence, your business is protected from competitive usage within the territory.

5. Legal Personality. Once your company is registered, it becomes an artificial legal person and can sue and be sued in its own name as it has a life of its own. It can take action and enforce its legal rights or be sued for breach of its legal duties or obligations.

6. Protection from legal liability. If your business is registered as a limited liability company, you would not be held personally liable for certain accidents and liabilities involving your company. No one can go after your personal assets but that of your company because upon incorporation, your company becomes a separate person distinct from its managing director or human agents who act for it.

7. Obtaining loans with ease. It becomes a lot easier for registered businesses to obtain loans than the unregistered ones or when applied for personally. Nowadays, only a registered business can obtain loans from banks and most reputable lenders. Lenders need to be sure that you are actually a business and a registered business portrays credibility and trust and builds confidence in the lenders.

8. Raising new capital. Registered companies can raise capital at any time by issuing new shares as opposed to unregistered businesses, sole traders or partnerships who have to rely on their own resources. The new shares can be offered to existing shareholders or new investors but only public limited companies can offer shares to the public.

9. Corporate bank account. Having a corporate bank account helps you separate your personal activities from your business activities and your business needs to be registered before you can open and maintain a corporate bank account. Having a corporate account gives you more credibility and it is more professional to give your customers a business name for payment instead of your full name.

10. Real estate. A registered company is capable of acquiring, holding or alienating property; so you can decide to have any transaction relating to land done in your company name.

11. Insurance. Businesses that are incorporated are more insurable than those that are not simply because incorporated businesses have less risk attached to them.

12. Obtaining Visa. If you are operating a registered business, you can easily obtain visa for business trips to any country since every country welcomes foreign investors who are interested in doing business in their country because it helps in the development of their economy.

13. Perpetual Succession. A registered company has perpetual succession. Change of membership, death, bankruptcy or incapacitation of any member of your company cannot affect the existence of your company and therefore does not amount to a change in the company itself.

14. You can exit the business at will. When you achieve a clean break and have some financial benefit to help fund your lifestyle or start another business, you can sell your business as a whole or it can be taken over by another, or all or part of your shares in your company can be sold and the continuity of your company would not be affected with a new shareholder.

15. You can even set up a dormant company or business. A company or business does not need to trade before it can exist. It can be dormant which means it has made no significant accounting transactions during its financial year. This idea is suitable for a potential entrepreneur who has an idea and name for his/her business but not yet the time or capital to develop it. He/she only needs to register the name and maintain the necessary formalities to keep the company or business on the register.

In summary, one can never go wrong by registering his/her business with the government rather the privileges abound! Make your smart move now by deciding to register your company or business today.

At TCMAttorneys, our Solicitors are always willing and capable to assist you every step of the way!