Legal Imperatives for Affordable Housing Delivery in Nigeria Essay

Shelter or trapping is iodine of the most basic of forgiving commands it ranked second only to food in the hierarchy of gay needs. 1 It is fundamental to hu composition survival and an essential component in the advan cement 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 contri thoes to the growth of the world economy. 3 The provision of trapping is because sine qua non to the growth of man and development of the nation. Effective lodging language involves many actors and segments of the kingdom apparatus, including the building materials sector, monetary sector, real estate sector, energy and infrastructural development sectors and the environmental planning sector amongst others it in that respectfore requires effective partnership, collaboration and information sharing among different sectors of the economy.To fulfill the need for inexpensive housing in Nigeria, a multi-faceted a pproach 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 flavourless out housing delivery and proffering practical and workable solution to the identified problems.To achieve this end the paper examines the theory of housing within the legal and statutory framework it forays into the purvey of the pop using up Act, Planning Laws, ennoble Registration Laws, Property Tax Legislations and Infrastructural Laws amongst others and submits that at that place is need for review of most of these legislations before any important progress can be made in the provision of affordable housing to Nigerians. Concept of Housing.Quoting from the provisions of the crud e national housing polity document 4 Housing is defined as the process of providing safe, comfortable, attractive, in operation(p) affordable and identifiable shelter in a proper setting within a neighbourhood, support by continuous maintenance of the built environment for the daily living activities of individuals/families within the community enchantment 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 cut back, but extends to town planning righteousnesss, tenancy and Rent control virtue, attribute tax law, energy law, water law, env ironmental law, supreme acquisition and recompense laws amongst others.Each of these laws is direct treated seriatim as here chthonic. acres 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 approachability of secured grime and proper pull down prudence. 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 practically needed finance for its construction.As one of the main factors of production, globe provides capital formation and collateral for savings bank advances towards the construction of the much needed- houses. It is thus obvious that the dream of a vibrant, efficient and effective owe corpse (financial reforms) will remain a mirage in the absence of a viable and reliable farming management sy stem. 6 The primer coat management policy of a call forth also impacts directly on the output and add on 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 theater of operations 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 exploitation 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, allowance for compulsory acquisition of station rights are fundamental questions of enquiry in this exercise. Given the foregoing scenario, an inquiry of the stream law regulating the use and management of land can not but be a essential 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 call and security of tenure for where there is no security of human action and tenure the development of mortgage system and formal land mart will be adversely affected, to the detriment of the growth of the housing sector. The land Use Act, as straightway constituted does not seem to provide the necessary secured tenure to fast track the delivery of the pass judgment houses. The Land Use Act, founded on hybrid recommendation,9 undulates surrounded by land nationalization and the aegis 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 procurable under the Act,11 are there equal property rights in every citizen under the Act,12 what is the proprietorship value of the certificate of Occupancy issued under the Act,13how secured is private property rights under the Act in view of the Governors power of invalidation14 and paltry compensation payable thereon? 15 How much protection does the Act offer potential mortgagees in the creation, perfection and actualization of the mortgage traffics? 16 How far the Land Use Act has addressed the problems of land speculation, land grabbing and incessant land dispute and urban pass? 17 Apart from these, the over concentration of power of land management in an individual rather than trigger 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 inco nsistency only breeds fear, distrust and doubts in the bosom 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 infinite20 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 nonagenarian in the Act22 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 becom e 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 alternatively of the current position as document evidencing title to land. 23 Still on the Act, the provision relating to bear requirement24 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 Governors consent to any mortgage transaction and must also obtain the Governors consent when usage 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 h sr.er/occupier26 for the purpose of payment of compensation should be reviewed to facilitate the enforcement and realization of the mortgage transactions. With the amendment i n place, the primeval mortgage institutions (PMIs) will be able to take the full benefit of the loan window provided for in the National Housing stemma Act27 to secure their investment with a block of mortgages over the properties being developed.digression 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 occurrence whereby one only reads about revocation in the newspapers and whereat it is done with military fiat, falls short of transnational best practices obtainable in more civilized climes. 28 To avoid conflict between State countenance 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 resembling source of authority and streamline land administration in the state thus education land management reliability and efficiency, all geared towards boosting investors confidence in the system and unlined production and delivery of housing units. Mortgage lawMortgage 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 kindred consensual security interest is created or retained against the consumers 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 locomote for the construction of houses. Statutorily, the primary mortgage institution s (PMIs) established under the law30 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 conclusion that without it housing development will suffer from dearth of block of funds and will have to depone on individual savings and financial support from friends and relatives. But what is the state of our law on mortgages? With hardly a(prenominal) 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 set out in fee simple or tail when such proprietary interest does not come thr ough in our statute books. Our mortgage enforcement procedures are still tangled in the webs of the common law and crude statutory provisions. The rights of the mortgagee to freely realize his investment is hampered by our laws31 and courts. 32 There is the need to review our laws on the subject of mortgage. The Property and Conveyancing Act33 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 mortgager 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 ex isting 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 formation 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 Law35 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 vendors or mortgagors title previously to completing his dealing, and for securing his own position afterwards. 36 Documentation and registration of all transaction and transactions involving land is at the heart of ensuring record keeping, f acilitating 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 provide land information recording and retrieval system in the country the Land Instrument Registration Act39 1924 which later became state laws40 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 effectiven ess, 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 keep an eye on 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 land42 and thus stem the tide of land frauds that are rampant in our urban centres.