Legal Imperatives for Affordable Housing Delivery in Nigeria Essay

Shelter or housing is one of the most basic of human needs; it ranked second only to food in the hierarchy of human needs. [1] It is fundamental to human survival and an essential component in the advancement of the quality of life of the citizenry. [2] Housing provides shelter for man in order for him to actualize his real potentials in life and contributes to the growth of the world economy. 3] The provision of housing is therefore sine qua non to the growth of man and development of the nation. Effective housing delivery involves many actors and segments of the state apparatus, including the building materials sector, financial sector, real estate sector, energy and infrastructural development sectors and the environmental planning sector amongst others; it therefore requires effective partnership, collaboration and information sharing among different sectors of the economy. To fulfill the need for affordable housing in Nigeria, a multi-faceted approach that transcends the legal, social, economics, religious and cultural interfaces and traits must be put in place at any given time. The task of this paper is to examine the legal initiatives required to facilitate the delivery of affordable housing units to the generality of Nigerians irrespective of class, race or gender. This is with a view at pointing out the inhibitors to smooth housing delivery and proffering practical and workable solution to the identified problems. To achieve this end the paper examines the concept of housing within the legal and statutory framework; it forays into the provisions of the Land Use Act, Planning Laws, Title Registration Laws, Property Tax Legislations and Infrastructural Laws amongst others; and submits that there is need for review of most of these legislations before any meaningful progress can be made in the provision of affordable housing to Nigerians. Concept of Housing. Quoting from the provisions of the new national housing policy document; [4] ‘Housing is defined as the process of providing safe, comfortable, attractive, functional affordable and identifiable shelter in a proper setting within a neighbourhood, supported by continuous maintenance of the built environment for the daily living activities of individuals/families within the community while reflecting their socio-economic, cultural aspirations and preferences. From this definition, housing is not only a shelter, but includes safety of the neighborhood; comfortable and functional dwelling, supported by continuous maintenance of the environment and planning; all reflecting the socio-economic, cultural aspirations and preferences of members of the society. Thus, the legal initiatives for the delivery of housing as conceptualized above requires not only the legal parameters concerning land, but extends to town planning laws, Tenancy and Rent control law, property tax law, energy law, water law, environmental law, compulsory acquisition and compensation laws amongst others. Each of these laws is now treated seriatim as hereunder. Land law. Land is to housing as what a woman is to a pregnancy. The conception, gestation and delivery of housing can only come to fruition with the availability of secured land and proper land management. Land midwifes housing delivery in myriad of ways; Land is the superstructure on which the dreams and aspirations of provision of housing is founded. [5] Land supports the production and delivery of housing through the provision of the much needed finance for its construction. As one of the main factors of production, land provides capital formation and collateral for bank advances towards the construction of the much needed- houses. It is thus obvious that the dream of a vibrant, efficient and effective mortgage system (financial reforms) will remain a mirage in the absence of a viable and reliable land management system. [6] The land management policy of a State also impacts directly on the output and supply of some of the basic raw materials in the construction industry including housing. 7] Such materials as sand, gravel, granite, laterite and even cement are subject to the extant land use management policy of the state. Thus, the Land use policy and management of the State has a direct impact and consequences not only on the quantum and quality of the State housing stock, but also fundamentally on the economic wellbeing of the citizen and the state, particularly in developing countries where there is heavy reliance on land and its resources for sustenance. 8] The question of who owns the land, what tenure operates over the land, security of tenure, compensation for compulsory acquisition of property rights are fundamental questions of enquiry in this exercise. Given the foregoing scenario, an examination of the current law regulating the use and management of land cannot but be a prerequisite to the successive delivery of housing units. The current law on the subject is principally the Land Use Act; others are Registration Laws, Registration of Title Laws etc. To ensure an efficient and effective housing delivery, there is a fundamental need for a secured land title and security of tenure; for where there is no security of title and tenure the development of mortgage system and formal land market will be adversely affected, to the detriment of the growth of the housing sector. The land Use Act, as presently constituted does not seem to provide the necessary secured tenure to fast track the delivery of the expected houses. The Land Use Act, founded on hybrid recommendation,[9] undulates between land nationalization and the protection of private property rights. 10] Its wavering posture has given rise to multiple interpretations as to its policy thrust and directives. Questions arise as to what is the quantum of interest obtainable under the Act,[11] are there equal property rights in every citizen under the Act,[12] what is the proprietary value of the Certificate of Occupancy issued under the Act,[13]how secured is private property rights under the Act in view of the Governor’s power of revocation[14] and paltry compensation payable thereon? 15] How much protection does the Act offer potential mortgagees in the creation, perfection and realization of the mortgage transactions? [16] How far the Land Use Act has addressed the problems of land speculation, land grabbing and incessant land dispute and urban slum? [17] Apart from these, the over concentration of power of land management in an individual rather than institution; the dichotomy in land rights and land administration under the Act and the ouster of courts’ jurisdiction in the determination of dispute and compensation issues are areas of concerns. These and many others are impediments to successful delivery of housing as such state of policy confusion and legal inconsistency only breeds fear, distrust and doubts in the heart of would be investors and property developers alike. The Land Use Act should be amended to address these contentious issues bedeviling the smooth delivery of adequate and affordable housing to the masses. For once, the Act should take a categorical stance on who owns the land; state or individual? To many this may seem obvious,[18] but not when one realizes that while the tenure of some citizen is finite and determinable,[19] others are infinite;[20] whilst some pay taxes and rents on their land, others do not. [21] The Act should declare state ownership of land so that the transition provisions of more than 35years old in the Act[22] can be extinguished and laid to rest and occupiers can be compensated for the revocation of their rights over bare land in as much as they paid to obtain the land from the state. With such categorical posture the issue of inequality in land rights as presently obtainable under the Act will become a thing of the past; every citizen will now have equal determinable interest in land. With state ownership of land, the proprietary value of Certificate of Occupancy is enhanced since it will now become a land title document instead of the current position as document evidencing title to land. 23] Still on the Act, the provision relating to consent requirement[24] should be removed with respect to mortgages in order to streamline the laborious process of mortgage creation, perfection and realization under the Act. Presently a mortgagee must ensure that there is Governor’s consent to any mortgage transaction and must also obtain the Governor’s consent when exercising its power of sale under the mortgage deed, otherwise the transaction is void. 25] Also, the provision excluding the mortgagee from the definition of a holder/occupier[26] for the purpose of payment of compensation should be reviewed to facilitate the enforcement and realization of the mortgage transactions. With the amendment in place, the primary mortgage institutions (PMIs) will be able to take the full benefit of the loan window provided for in the National Housing Fund Act[27] to secure their investment with a block of mortgages over the properties being developed. Aside the amendment of the Act to accommodate smooth mortgage transactions, the Act should also provide explicit procedure for revocation of right of occupancy, such as pre-revocation notices, filing of objections and access to the courts for adjudication on quantum of compensation payable upon revocation. The present situation whereby one only reads about revocation in the newspapers; and whereat it is done with military fiat, falls short of international best practices obtainable in more civilized climes. 28] To avoid conflict between State grant and a grant made by the local government, the reviewed Act should abolish the dichotomy e xisting between the State and local government over land administration in the State. This will ensure a uniform source of authority and streamline land administration in the state thus fostering land management reliability and efficiency, all geared towards boosting investor’s confidence in the system and seamless production and delivery of ho using units. Mortgage law Mortgage transaction is a species of secured credit transaction that provides investment funds for business enterprises. With respect to housing, the term means a transaction in which a mortgage, deed of trust, purchase money security interest arising under an installment sales contract, or equivalent consensual security interest is created or retained against the consumer’s dwelling to finance the acquisition or initial construction of such dwelling. [29] It is the bedrock and the superstructure for housing finance. Its functionality is exhibited when it is appreciated that it gives assurance for the repayment of the loan advanced for the construction of houses. Statutorily, the primary mortgage institutions (PMIs) established under the law[30] are required to secure the loans obtained from the federal mortgage banks/national housing funds with a first legal mortgage over the block of properties funded by the loan. In the same vein, individuals are expected to execute a first legal mortgage over the property financed by the funds sourced from the PMIs. Mortgage is so fundamental to mass and social housing developments to the extent that without it housing development will suffer from dearth of block of funds and will have to rely on individual savings and financial support from friends and relatives. But what is the state of our law on mortgages? With few exceptions, our law on mortgages is still founded on the received English laws of the 19th century; which has been discarded in England almost a century ago. Our law on the subject does not reflect the realities of our time. We still convey in fee simple or tail when such proprietary interest does not exist in our statute books. Our mortgage enforcement procedures are still tangled in the webs of the common law and archaic statutory provisions. The rights of the mortgagee to freely realize his investment is hampered by our laws[31] and courts. [32] There is the need to review our laws on the subject of mortgage. The Property and Conveyancing Act[33] needs repealing and a new law on mortgages to reflect the current trend in the area to fast-track mortgage transactions be promulgated. The new law should reflect the quantum of proprietary interest available under our law, streamline the process for the enforcement of mortgagees’ powers of sale and foreclosures and do away with the need for a re-conveyance deed in mortgages amongst others. The right of the mortgagor to create successive legal mortgagees over the same property; be protected from negative amortization clauses and collateral mortgage contracts should be explored under the new law. The new law should harmonize the provisions of existing legislations in the areas and harness them to achieve the goal of providing robust financial base to for social housing. The provisions of the Land Use Act, Registration of Title Laws, National Housing Fund Act, Pension Act, Federal Mortgage Bank Act, Nigeria Social Insurance Trust Fund Act, Primary Mortgages Institution Act and other laws relating thereto should be examined in this wise. The provisions of the Property and Conveyancing Law,[34] the current law on Mortgages in UK and the Lagos State Mortgage and Property Law[35] are also recommended as templates for the review of the old Act. Land Registration Law. Land registration can be best described as a species of machinery for assisting a purchaser or mortgagee in his inquiries as to his vendor’s or mortgagor’s title previously to completing his dealing, and for securing his own position afterwards. [36] Documentation and registration of all dealings and transactions involving land is at the heart of ensuring record keeping, facilitating land searches, tracing and priority in land transactions, which go a long way at establishing certainty, predictability and efficiency in land transactions including mortgages. A vibrant storage and retrieval land information system enhances transparency in land dealings and is immeasurable as a factor aiding speedy settlement of land disputes. A good land registration system is therefore core to efficient land administration and consequently the delivery of housing in a state. Currently in Nigeria, it is the prerogative of the state to determine, design and operate its own land information recording system. This is as a result of the constitutional arrangement which empowers the states to legislate on the subject atter. [37] The current regime has given rise to multiplicity of laws and diverse administrative procedures in the process of storing and retrieving land information system in the country to the detriment of investors, mortgagees and real estate developers alike. A times the requirements for land registrations/title registration varies from state to state not because laws are different but simply on issue of practice and procedures to be adopted including charges/levies imposed on the parties. 38] In the time past there used to be a uniform land information recording and retrieval system in the country; the Land Instrument Registration Act[39] 1924 which later became state laws[40] with the coming into effect of the 1954 federal constitution. The law is still extant in most of the states of the federation, but the practice has remained diverse. There is therefore a need to streamline the practice and procedure for recording and registration of land dealings and evolve a uniform system that will not only breed seamless land registration process but also boost investors’ confidence in the process. Towards this end, the existing mechanisms and procedure for regularization and registration must be reoriented and reorganized to achieve greater effectiveness, reliability and economy. Since market efficiency depends very much on the availability of reliable information that can be used to check genuineness of titles before purchase and to trace records of land transfers at any point in time, efforts should be geared towards making registration compulsory for all land dealing. Government should compel the conversion of all existing titles on land to a certificate of occupancy within a stipulated time. Such policy would foster the development of a uniform land title in the system, which in turn would engender certainty, reliability and security of land title deeds. [41] Such scheme will also obviate the need to keep dual land title documents over a piece of land[42] and thus stem the tide of land frauds that are rampant in our urban centres.