Deed of Assignment, Governor’s Consent and the Risk of an Unperfected Title

A properly executed Deed of Assignment does not, by itself, complete the perfection of a Lagos property transaction. For an interest requiring Governor's consent, perfection requires the relevant consent and registration of the instrument.

This is the point at which the documents in a seller's file stop answering the question. A deed records what the parties agreed between themselves, while state recognition of the transfer is what determines the buyer's position against third parties.

What the law requires

Section 22 of the Land Use Act provides that the holder of a statutory right of occupancy shall not alienate that right, or any part of it, by assignment, mortgage, transfer of possession, sublease or otherwise, without the prior consent of the Governor. The requirement covers the ordinary sale, and it equally covers mortgages and subleases, which is why estate transactions and bank charges sit inside the same regime.

It is also not confined to rights of occupancy granted expressly by the state. Where a holder is deemed to hold a statutory right of occupancy over land in an urban area, the consent requirement reaches dealings with that land in the same way, so a long chain of privately executed deeds over land held before 1978 does not sit outside the regime.

Section 26 provides that any transaction purporting to be an alienation in contravention of the Act is null and void. Read on its own, that language suggests an unconsented assignment achieves nothing at all.

A line of authority takes a narrower view, treating a transaction awaiting consent as inchoate rather than dead, binding the parties as between themselves, with an assignor unable to rely on his own failure to obtain consent as a reason to escape the bargain.

For a buyer, the practical meaning is narrow. An unconsented deed operates principally against the seller, and offers little in a contest with a third party.

Why that matters in practice

An instrument that has not received consent cannot be registered, and until it is registered the register will ordinarily continue to record the seller as the holder of the interest.

A later buyer conducting a search at the Lands Bureau is therefore searching a register that still names the original seller. If that seller sells again, the second buyer may find nothing on the register to indicate the earlier transaction, and a purchaser who acquires without notice and proceeds to obtain consent and registration may end up in a materially stronger position than the earlier buyer whose transaction remained unperfected.

Registration also governs what the document can be used for if the position is ever contested, because an unregistered registrable instrument is subject to statutory restrictions on the purposes for which it may be received in evidence.

Two qualifications matter here, and leaving them out would overstate the case:

• A pending application is not the same as consent. It shows that the process has begun, without confirming that consent will ultimately be granted.
• A buyer in possession under an unregistered deed still has arguments available, because possession can put a subsequent purchaser on notice. That is a contested position to be litigated rather than a protection to be relied upon at the point of purchase.

An unperfected buyer's position rests on evidence, notice and litigation, whereas a perfected buyer's position rests on the register.

If you are still buying

Consent should be treated as a condition of the transaction rather than as an administrative step to be attended to afterwards. Where a seller will not wait for consent before completion, there are two defensible routes:

• Retain part of the purchase price against the seller's cooperation in the application. In most Lagos transactions the buyer's side drives the process, so the obligation worth securing is execution of the application, delivery of originals, provision of tax documentation and attendance where required. The retained balance is released once consent has been evidenced.
• Proceed, with the exposure documented, the seller's obligations expressly recorded, and the decision taken in full knowledge of what is unresolved.

If you already hold an unconsented deed

This is the more common position, and it is recoverable in many cases. Regularisation generally depends on the cooperation of the party recorded on the register, so delay carries a cost that is independent of any fee schedule:

• Where the seller is available and willing, the application can normally be pursued.
• Where the seller has died, the estate must be properly represented before the transfer can be regularised, which adds a probate dimension to what began as a simple purchase.
• Where the seller has become uncooperative or cannot be traced, the route becomes considerably harder.

How HIDD helps

Our review goes beyond the Deed of Assignment itself. We verify whether Governor's consent has been obtained, whether an application is pending, and what the Lands Bureau currently records against the property. Where the contractual documents and the official register do not align, we explain the legal and practical implications before completion, so buyers understand exactly what remains unresolved. Where instructed, we also manage the consent and registration process through to perfection.

This article provides general information on the consent requirement in Lagos State. It is intended for educational purposes only and should not be relied upon as legal advice in relation to any specific transaction. If you would like your own position reviewed, contact HIDD Advisory.