What is Land?
Land is the solid surface of the earth, trees, plant, crops, and other vegetation, a part of the earth surface covered by water, any house, building or structure whatsoever, any interest or rights in, to or over immovable property.
Section 281 of the Land Act, 2020 (Act 1036) ‘‘Things on the soil surfaces considered as nature, the space above the land and the soil beneath e.g., rivers, streams, growing trees like palm trees, things fixed artificially like buildings and any structures whatsoever and mineral resources. It also includes the estate, interest or rights in the land or over any of the things which land denotes i.e. rights to collect herbs or snails or hunt on the land’’. - Justice N.A Ollenu - Principles of Customary Land Law in Ghana (PCLLG)
Tip
Whoever owns the soil owns everything up to the heavens and down to the depth of the earth.
A landowner’s right on a land extends upwards into the airspace and downwards into the earth.
What is Due Diligence?
Legal due diligence is the process of a collecting, understanding and assessing all the risk associated with the acquisition process of a property such as land etc. It is usually undertaken by a party as part of the preliminary steps in most significant commercial transactions to understand if there are any legal risk in the future to be faces with the acquisition process.
This process involves the review of key relevant documents and interviews to key persons associated with it. In assets such as property or land transactions, it is usu ally undertaken by lawyers for the purchaser. These are formal inquiries made to regulatory bodies to verify the authenticity of a land title and its associated documents.
Why the Need for Due Diligence?
This process is very important and critical for everyone interested in acquiring property particularly land in Ghana to avoiding the various risk most prospective buyers fall prey to their bid to acquire land and property including as cost, multiple sale of land, fraud and corruption, weaknesses in the land administration system, challenges with customary land ownership, lack of transparency, bureaucracy and delays.
The other reasons why due diligence is important in the acquisition of property such as land is to understand the legal compliance system that is involved and for parties to understand to appreciate the necessary documents that needed to complete the process.
Also conducting the necessary due diligence helps parties to appreciate the pending problems likely to be faced in the future with the transaction to put in place the necessary system in remedying it. This helps the various legal counsel to arrive at the same legal counsels of the parties to come to the same conclusion on prevailing issue and to give the right legal opinion on the transaction and the right amount to pay for the transaction.
Due Diligence to be Undertaken Before Acquiring Land in Ghana
Customary Land Secretariat (CLC) Search – Three Key Actions to Undertaken
a) Ensure that You are Dealing with the Right Land Owner
Stool Lands: Deal with the stool occupants and his principal elders of the stool.
Family Lands: Deal with the Family Heads and Principal Members of the family.
Individual Lands: Deal with the actual owner.
Always obtain a receipt for all payments/transaction made by the land owner
b) Ensure the Right Documentation for the Land is Provided by the Land Owner
Four copies of the document developed between the chief and the applicant must be submitted to Lands Commission.
A lawyer must sign the back of each copy and put his stamp on it.
Each copy of the document must have a site plan attached.
The back of the site plans is to be endorsed by both the Chief and the Applicant or buyer.
Each site plan is to be certified with stamps of a licensed Surveyor and the Regional Surveyor and must have a date.
At least two Principal Elders of the Stool (with stated status) must sign as witnesses.
The witnesses of the applicant/buyer must write the full name, provide addresses and signatures.
c) Review of Land Documents
It is important to review and examine the various land or property titles to the land or property documents provided such as the original lease agreement and verify that past and future promises concerning the ownership of the land (called covenants) and whether they have been met. This is critical since it provides proof to the validity of the title that passes to you.
Land Use and Spatial Planning Authority Search
This search confirms the zoning requirement for the land or property under consideration. This is requirement is very important since the grant of any land that contradicts the zoning mandate makes the grant void. Example: If land is zoned for residential purposes, it cannot be used for other purposes such as commercial purposes regardless of what the grant states.
Lands Commission Searches - Three key state divisions to contact:
a) Public Vested Lands Management Division (PVMD): This provides information on all transactions on the land. This provides information on who the proper owner of the land is and also whether the present title cannot hold. This search is important to avoid engaging the wrong land owner.
b) Survey and Mapping Division Search: This provides you with information on who is in the process of registering that land and whether a cadastral plan has been prepared. This is useful since it provides information on key interested parties to a particular land or property.
c) Land Registration Division: This provides actual information on who holds the land title and is the most authentic information needed in the process of acquiring land. search. Title from this division is typically very authentic and devoid of any fraud.
Litigation Search
It is important to ensure the land one seeks to acquire is not subject to any ongoing legal battle. This search is very essential since most sellers often do not like disclosing any pending lawsuits, leaving buyers to their own fate. This search can be conducted in the various courts situated in the jurisdiction the land is situated.
Court judgement search affecting the land or property. A valid court judgment must be signed by both the court registrar and judge, and specify the interest in land over which the judgement binds. This action can be instituted in the various courts situated where the land is located.
