Family Property: Who Should Sell It?
Have you ever bought a property from a family?
Okay! Let’s make it simpler, do you have a Land Sales Agreement, Deed of Assignment, Memorandum of Sale etc., executed by a member of a family? Or by a member, for and on behalf of the family?
Here is another one, have you ever been issued a family receipt for the purchase of a property? If you fall within any of the identified categories, today’s feature is for you.
You are welcome to the Online Law Clinic, and you already know it’s Wednesday and it’s the Family-Law-Series day.
Our feature today is tagged: Family Property: Who should sell it?🤔🤔
It is not unusual for a family👨👨👦👦👨👨👧👩👩👧👦💏 to decide be it at a meeting had with members present or vide any other convenient means devised by technology to sell a property owned jointly by the family. We have also seen situations where a person (sometimes, the most knowledgeable in the family) will be designated as the person to execute all instruments of purchase. What is the position of the law in all these identified situations?🤔 Who has the legal capacity to sell?🤔🤔 What is the fate of the buyer?🤔🤔🤔 To enable us appreciate the position of the law, we have set out guidelines (our usual style)👏, it is our aim that these guidelines will answer all the frequently asked questions surrounding the sales and purchase of Family Property:
A. What is Family Property?🤔
It is that property whose ownership resides in the family as a whole. A member of a family can’t lay exclusive right of ownership to it. Please note that the family as used herein includes only the children of the original owner of the property.
It sounds confusing, right? we will clear all grey areas shortly!
B. What Properties are categorized as Family Property?🤔🤔
i. When a person in his lifetime owns property(ies) and declared or expressed his desire that the property remains in the family for the use and/or enjoyment of his children. Such a property is Family Property or becomes Family Property and no child will be allowed to claim exclusive ownership of same.
ii. When members (i.e. children) of a family use the fund that belongs to all, to purchase a property, such a property is Family Property. An example is cited: if Mr. Polygamist’s pension fund was collected upon his demise by his children and they i.e. the children use such fund i.e. the pension to purchase a property, the property automatically becomes Family Property.
iii. Where a person in his or her will devised a specific property as family property and to be ‘owned’ by all his or her children upon demise, the property becomes Family Property upon such a person’s demise. Remember, our feature on wills? Click on the link below to refresh your memory.
https://onlinelegalclinic.blogspot.com/2019/10/make-willnot-death-wish.html
iv. A person who died intestate (i.e. without making a will) and was married under customary law, the property(ies) left behind automatically transcends to Family Property.
Moving on,
C. What if the family decides to sell the Family Property?🤔🤔🤔
There is nothing in our Statute Book precluding members of a family with the appropriate composition to sell Family Property. However, the appropriate composition must sell, failing which such sales will be set aside.
D. What is the Appropriate Composition?🤔🤔🤔🤔
The Appropriate Composition is a phrase, used loosely in this discourse, and it refers to the number and status of family members that can validly sell Family Property and/or sign an Agreement of sales of Family Property. The law identifies certain persons in the family who can validly sign, while there are some person who can’t validly sign and so on and so forth. The identified persons are as follows:
i. Family Head👨
Just as the name implies, a Family Head is the ‘leader’ ‘director’ of the family’s affair’
A Family Head is generally appointed by 3 methods:
The first is by nomination of the deceased in his lifetime, the second is by nomination of the majority members of the family and the last is by traditional method which is the eldest surviving male child of the family. Please bear in mind that a female child can also be the family head, this will form the fulcrum of a separate discourse on the blog. Please stay with us.
ii. Principal Members👧👨👩
Let’s take off with a story, Mr. Africa Magic a polygamist had 7 wives and 55 children in his lifetime. Mr. Zee World a monogamist had a wife and 7 children in his lifetime. Who are the principal members of Mr. Africa Magic and Mr. Zee World’s respective families?
In the case of Mr. Africa Magic, the eldest child of each wife is a principal member, so that means, there are 7 principal members in Mr. Africa Magic’s family.
Said differently. Mr. Africa Magic has 7 idi-igi’s a representative of each idi-igi is a principal member.
In Mr. Zee World’s case all the 7 children are principal members.
iii. Members👨👩👩🙍🙎👴
Persons other than the Family Head and Principal Members are regarded as Members.
E. Who can validly sell amongst these class of persons?
For ease of understanding, I am going to use a formula:
Family Head + Principal Members =Valid
Principal Members –Family Head = Not Valid
Family Head –Principal Members =Semi Valid
You might want to take a look at your Land Sale Agreement, Deed of Assignment etc., to determine the category you fall in, is it the valid category, not valid or the semi valid category?
If you fall in the semi valid category, all hope is not lost,😂😎😂 there are legal steps and/or procedure that can be taken to elevate the ‘semi valid status’ to ‘valid status’.
But, if it’s the “not valid”category, uhm!
I conclude with the word of wisdom of my Lord, Oputa JSC (as he then was and of blessed memory) in ENITAN V. STATE (1986) LPELR-1146 (SC) 1 AT 13 PARA B thus:
“There is nothing wrong in accepting the obvious but there is everything wrong in taking sides against arithmetic.”
Oluwatosin Ajose Popoola Esq.,
For; The Online Law Clinic
Onlinelawclinicteam@gmail.com
Online_lawclinic
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