The House Nobody Owns

There is an offer on the house, and it is a good one.

The buyer is serious, the money is available, and the six surviving children of the man who built it are, for once, in agreement that selling is sensible. The house is thirty-one years old, three of them live abroad, the roof has gone twice, and the rent from the two shops in front does not cover what the compound costs to keep.

The eldest signs a contract. The buyer’s solicitor asks for the title documents and receives a Certificate of Occupancy in the father’s name, dated 1994, and a death certificate.

What the solicitor says next takes four months to be understood and another two years to be accepted. It is not that the family needs more paper. It is that the person who could have sold this house died in 2009, and the law has not produced a replacement for him. There are six people with rights in it and none of them, alone or together in that configuration, can convey it to anybody.

(A constructed illustration. The pattern is ordinary; the persons are not real.)

It is not that the family house belongs to everyone. It is that it belongs to nobody who can give it away.

Family property is not a category families choose. In the great majority of cases it is created by a death.

Where a man governed by customary law dies intestate owning land he acquired himself, that land does not vest in one child, and it is not divided among them as separate parcels. It devolves upon his children as family property — a single holding, owned by the family as a unit, in which each child has an interest but none has a share he can point to, sell or give away.

Nothing announces this. There is no instrument, no registration, no moment at which anybody signs anything. The Certificate of Occupancy stays in the dead man’s name, sometimes for two generations. The family continues to describe the house as “our father’s house,” which is accurate, and to assume that this means it can be dealt with the way his other property was, which is not.

Family property can also arise by grant or conveyance to a family as such, and in many communities communal land held under customary tenure has always been in that form. But the intestacy route is the one that reaches the ordinary Nigerian household, and it is the one that converts self-acquired property — a house bought with a salary, built over fifteen years, owned outright — into something with entirely different legal characteristics, in a single afternoon, without a document.

A further layer sits above all of this. Under the Land Use Act 1978 all land in each state is vested in the Governor, and what a holder possesses is a right of occupancy. Alienation of a right of occupancy requires the Governor’s consent. So a family house carries two constraints rather than one: the internal customary constraint on who may deal with it, and the statutory consent requirement on any dealing at all.

These rules are stated at the level of general principle. Customary law varies between communities, and the rule that applies in a particular case is the rule of the particular custom, proved as a fact. But the structure below holds across most Nigerian systems, and it is the structure that surprises people.

Everything in Act Two turns on the membership of the family, and on that question the law has moved substantially in the last decade.

Daughters are members. A custom that excludes a female child from her father’s estate is void, and the Supreme Court so held in Ukeje v Ukeje (2014). A partition or sale effected without the daughters is a partition or sale effected without principal members, with the consequences set out in Rule Three.

Children born outside a marriage are members where the parentage is established, for the reasons set out in Sibling 03 — the constitutional protection against disability by reason of the circumstances of birth applies here as it applies to a share in an estate.

A widow is not a member of her husband’s family in the proprietary sense, which is a hard thing to state and an important one to state accurately. Her position in the house rests on her right as a widow and on the rules discussed in Sibling 08, not on membership of the holding. Where the house is family property, it is not hers to be given and it is not the family’s to take from her by a rule the courts have voided.

The practical effect of these movements is that a great many arrangements made confidently between 1990 and 2015 are now defective, because they were made with a smaller family than the law recognises. A sale agreed by four brothers of a house in which three sisters also had interests was not a family sale. It was a disposition by some members, and Rule Three says what that is worth.

A family house is usually the largest thing a Nigerian family owns and the least useful. It is capital that cannot be moved.

It cannot be sold without an assembly nobody can convene. It cannot be mortgaged, because no lender will take a security that the borrower cannot show he is entitled to give. It cannot be devised, because no member owns a share to leave. It cannot be divided informally, because informal division changes nothing about the legal position and merely creates a further set of expectations to be disappointed.

Meanwhile it depreciates in the ordinary way of buildings, consumes rates and repairs, and is occupied by whichever members are present, who thereby acquire the costs and the resentment without acquiring the asset. Two generations of this converts a house that was worth something into a house that is worth less, held by a family that has grown from six people to forty and now cannot identify its own principal members without a genealogy.

The statutory layer compounds all of it. Even where the family does agree, a disposition of a right of occupancy requires the Governor’s consent, and a consent application is made on the strength of documents — a certificate in the name of a man who died in 2009, and no instrument anywhere showing how the holding passed to the people now proposing to sell. Families in this position frequently discover that the internal agreement they spent two years assembling is the easier half of the exercise, and that the registry will not act until the devolution can be shown on paper that does not exist.

The most damaging feature is silent. Because the asset cannot be realised, it does not participate in the family’s economic life at all. It secures no borrowing, funds no education, starts no business. It is wealth in the sense that it appears on a list, and in no other sense. The second-generation essay in the family governance cluster describes how wealth fails to survive three generations; this is one of the specific mechanisms by which Nigerian wealth does it.

An asset that cannot be sold, charged, divided or devised is not an inheritance. It is an obligation with an address.

There are two problems here and they need different answers. The first is how to stop a house becoming family property. The second is what to do with one that already has.

Preventing it is straightforward and almost never done. The conversion happens on intestacy; a will prevents it. A house devised to named persons in defined shares passes as their property, not as family property, and it can be sold, charged and divided by the people who own it. This is the single most valuable line in this essay and it costs the price of a properly drawn will.

A lifetime transfer does the same more definitively, moving the house into the name it should be in while the transferor is alive and can execute what the registry requires. The funding sub-cluster’s essay on land sets out why the deed alone does not achieve the transfer and what does.

A trust does something neither of the others can. It gives the property a single legal owner — the trustee — with a defined class of beneficiaries and a written mechanism for deciding what happens to it. That is precisely the structure the family house lacks: somebody who can sign, and a rule for how the decision is made. A family house settled on trust remains available to the family, and becomes capable of being managed, let, insured, repaired and, if the terms allow, sold. Sibling 09 of this cluster takes the instrument apart, and the seven-step architecture in the set-up cluster is the build.

Getting an existing family house out requires the family to act as an institution once. Identify the members, including the daughters and the children whose entitlement is now settled. Identify the head. Convene properly. Decide between partition, sale or settlement on trust. Record it in a deed. Obtain the consent the Land Use Act requires. It is a project of months and it is done once.

Families that expect to do this more than once should build the mechanism rather than repeating the crisis. The family constitution essay in the family governance cluster sets out how a family creates a forum, a membership roll and a decision rule — which is, in the end, the only thing the family house has ever been missing.

He left them a house and no way of deciding about it. The house is still standing. The deciding has not started.