Ghana’s housing deficit, which is currently estimated at about 1.7million units, has had significant impacts on property development and accommodation especially in the capital city of Accra. Government’s inability to provide social housing and lack of affordable homes by real estate developers have led to the phenomenon of middle-income earners moving to acquire lands towards building their own properties.
This development has, however, given rise to multiple issues of litigation resulting from land disputes, encroachment, improper land title registration procedures and use of land guards to carry out all manner of violence in the name of land protection.
In a bid to address some of these issues arising from land ownership, The Business and Financial Times’ (B&FT) Kennedy Aryeetey spoke to an astute lawyer, Emmanuel Mate-Kole, of Bentsi-Enchill, Letsa & Ankomah law firm, to understand the position of the law on land ownership and registration in Ghana, and also to recommend the best legal approach in acquiring land in the country.
B&FT: Who owns land in Ghana? What does the constitution say about land ownership/acquisition?
Ans: Lawyer Mate-Kole:
The entities that own land in Ghana are;
- The Stool;
- The Family;
- The Individual; and
- The State.
The Constitution vests all “Public Lands” in the state. “Public lands” are lands which were vested in the state before the coming into force of the Constitution on behalf of and in trust for, the people of Ghana for the public service of Ghana, and any other land acquired in the public interest, for the purposes of the Government of Ghana.
The Constitution also vests all “Stool Lands” in the appropriate stool in accordance with customary law. Stool land includes any land or interest in, or right over, any land controlled by a stool or skin, the head of a particular community or the captain of a company, for the benefit of the subjects of that stool. The Administration of Lands Act, 1962 (Act 123) has a more expanded definition and it adds “clan” to the definition of stool land.
The Administration of Lands Act and our customary law also recognises ownership of land by clans or families. The Constitution guarantees ownership of land by individuals either alone or in association with others.
B&FT: What is the difference between Leasehold and Freehold land ownership and how long can an individual own land? What happens after this period is exhausted?
Ans: Freehold Interest. This is the highest interest in land in Ghana and runs for an indefinite period. It goes with the right of beneficial occupation of the land which may devolve upon successors forever. This form of ownership is normally granted by a stool or a family. However, Freehold interests are gradually becoming rare especially in the towns and cities as there rather seems to be a gradual shift towards the creation of leasehold interests.
This is an interest granted by the owner of land to another for a specified period. The period granted may be short as one year or as long as 99 years. Government lands are granted on leasehold basis. Recently, the practice has been that Government grants land for a maximum period of 50 years. Government rarely goes beyond 50 years.
The highest interest a foreigner can have in land in Ghana is a 50-year lease. On the expiry of the 50 years, an application has to be made to the Lands Commission for an extension of the lease.
There is no provision for automatic renewal. The renewal is at the discretion of the Lands Commission. In practice, however, a refusal to renew or extend a lease by the Government of Ghana is rare. Provided that the leaseholder is in good standing and has observed the terms of the lease, there is no reason why the lease, whether of Government land, stool or family land will not be renewed.
B&FT: Are there laws that protect land encroachers?
Ans: There are two laws that protect persons who do not have title but have managed to put up a building on the land. These are the Land Development (Protection of Purchasers) Act, 1960 (Act 2) and the Farmlands (Protection) Act, 1962 (Act 107).
Act 2 was enacted to protect purchasers of land and their successors whose titles were found to be defective after a building has been erected on the land and it applies to Accra only. However, Act 107 was an extension of the policy in Act 2 to include the Ashanti, Brong-Ahafo, Central, Eastern, Volta and Western Regions.
In order for a person with a defective title to claim protection under Act 2, that person must show that they built on the land in good faith and that they carried out a greater part of the work for the erection of the building. In one case the court said that a mere temporary structure will not qualify as a building but an outhouse or “boys quarters” is a building.
In addressing whether a person or encroacher acted in good faith, the courts have considered factors like:
1) Did the encroacher conduct a search at the Lands Commission before building on the land;
2) Did the actual owner of the land challenge the encroacher to stop building and the encroacher continued to build on the land.
3) The courts have taken the view that a person can be said to have acted in good faith if the person had been diligent in respect of the land.
B&FT: Is there a law that prohibits individuals from owning land without developing any property on it for a period?
Ans: There is no law that prohibits individuals from owning land without developing any property on it for a period. This is usually a contractual arrangement. For example, in government leases, purchasers are given a grace period to start construction and a time to complete the building but these are contractual arrangements not statutory.
B&FT: How will you advise a prospective buyer to proceed in acquiring land?
Ans: The best legal procedure to follow when buying land to avoid litigation is to do a comprehensive due diligence.
Due diligence means conducting investigations into who owns land, finding out whether there are any encumbrances on the land, and the nature of the transactions that have occurred on the land. This would require the interested purchaser to conduct searches at the following divisions of the Lands Commission. Namely; the Public and Vested Lands Management Division, the Survey and Mapping Division and the Land Registration Division.
If the purchaser is satisfied with the findings of the search, then the purchaser can now engage the vendor and conclude the transaction.
Immediately the transaction is completed, the purchaser should swiftly register his interest in the land. Registration under the Land Title Registration Act constitutes notice to the world and anyone who acquires the same land is fixed with notice of a subsisting interest in the land. In this regard, no subsequent purchaser of the land can claim that he bought the land in good faith.