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Principaux points saillants de la loi foncière 2020 du Ghana

Principaux points saillants de la loi foncière 2020 du Ghana

Article by Elizabeth Ashun and Theodosia Tandoh of Bentsi-Enchill, Letsa & Ankomah, Ghana

It has been a little over a year since Parliament passed the Land Act 2020 (Act 1036) (the “Land Act”). Until the Land Act was passed, Ghana’s land law was contained in several legislations and cases. It consolidates Ghana’s land law and updates the legal framework for land administration. Industry players are getting accustomed to this new law – an all-in-one law for all things related to land law in Ghana.

This article will discuss the key highlights of the Land Act and identify some of the significant changes made to land law and practice in Ghana.

Codification of land interests

The Land Act has codified the various interests in land namely allodial title, common law freehold, customary freehold, usufructuary interest, leasehold interest and customary tenancy – which hitherto were defined by case law and academic literature.

Restriction against the grant of freehold interests

The creation and vesting of a freehold interest in stool, skin, clan or family land in any person is prohibited. To ensure compliance with this prohibition, the Lands Commission recently issued a notice indicating that it would not accept any land instrument for processing and registration, which vests a freehold interest in the grantee. The notice however added that instruments that vested freehold interests and have already been presented for registration as well as those which have been duly registered would not be affected.

Restriction on foreign ownership of land

The Constitutional restriction on foreign ownership of land has been restated in the Land Act. A non-Ghanaian may not be granted a leasehold interest that exceeds fifty (50) years at any one time. But the Land Act now explains what constitutes a non-Ghanaian company or corporate body, being a company or corporate body with more than forty percent of the shareholding or ownership held by non-Ghanaian citizens.

Customary Land Management

Discriminatory customary land practices are prohibited in accordance with the Constitution. Chiefs, tendanas, clan heads, family heads and other authorities who are responsible for the management of stool, skin, clan, family or group land are held as fiduciaries and charged to be fair, transparent, open and impartial in making decisions that affect land. They also have a duty to establish a Customary Land Secretariat (“CLS”) to manage their lands. Among the duties of the CLS is to submit records of all land transactions to the Lands Commission and the Office of the Administrator of Stool Lands every six (6) months. The CLS will run the system of recording customary interest and rights in land alongside the title registration and deeds registration.

Court judgements to include site plans

Court judgments affecting land must be accompanied with site plans indicating the extent and boundaries of the land forming the subject matter of the judgment. This aims at resolving land boundary issues and reducing the likelihood of manipulating the size of lands after court judgments. The judgments must also state the specific interests granted, which can be registered. This will aid the Lands Commission make accurate entries in the land register and reduce duplication and mistakes.

 Spousal Property

Spouses who jointly acquire land will be deemed joint parties to the conveying instrument, unless the conveyance expresses a contrary intention. Thus, even if the instrument names only one spouse, the other spouse would be deemed to be party to it. And, the spouses are deemed to be tenants in common, unless the instrument indicates a contrary intention.

However, a spouse’s freewill to deal with their interest in land is not absolute. A spouse who intends to alienate property acquired during marriage must obtain the other spouse’s written consent, unless there is a written agreement to the contrary. This will aid in eliminating fraud by spouses and promote transparency in dealings with jointly-acquired property. However, by the 2021 Supreme Court decision in Adjei v Adjei, such property is “presumed to have been jointly acquired by the spouses,” and a spouse who seeks to rebut this presumption must provide evidence to the contrary.

There is therefore a lack of clarity on the matter, and we recommend that the Land Act is revised to provide that the required written consent applies only where the other spouse intends to alienate an interest in jointly-acquired property. Until this issue is clarified, spouses may consider clearly indicating in either the conveying instrument or a separate agreement, that the property is not intended to be treated as jointly-acquired.

Title Documents

A person in possession or control of a document of title is not entitled to retain the document on conveying the whole interest in land. The grantor of the land must deliver the title document to the transferee at the time of the conveyance.

Alternative Dispute Resolution

The Land Act encourages settlement of land disputes, in registration districts (currently Accra, Tema and parts of Winneba and Kumasi) through the dispute resolution procedures in the Alternative Dispute Resolution Act, 2010 (Act 798) (the “ADR Act”). If the alternative dispute resolution fails, then the matter may be sent to court. The mode of dispute settlement replaces the non-functional land title adjudication committees that were required to settle land disputes in the registration districts. The courts are currently enjoined not to entertain disputes arising from land title registration districts unless the procedures under the ADR Act have not been exhausted.

Land Guards

The use of land guards to protect the development of land or deny land owners access to land, which has almost become a norm in parts of Ghana such as Accra, Tema, Prampram, Kasoa, etc has been criminalized by the Land Act. Acts such as unlawful supervision or control of land developments, use of physical violence to prevent a person with a valid interest in land from gaining access to their land or from developing their land and extortion of money from lawful land owners is expressly prohibited; and perpetrators of such conduct will be liable on summary conviction to a term of imprisonment between five and fifteen years.

Electronic Conveyancing

Electronic conveyancing (“E-conveyancing”) has been introduced to expedite the transfer of an interest or right over land. The Lands Commission has been mandated to develop a land information system, equipped with the requisite information technology (IT) infrastructure to facilitate E-conveyancing.

Only qualified legal practitioners possessing the required facilities and equipment to the satisfaction of the Lands Commission, may be granted access to provide E-Conveyancing services and such access is not transferable. This is a step in the right direction to ensure a trustworthy E-conveyancing system. The Land Act does not provide a comprehensive framework for E-conveyancing and regulations will need to be made swiftly to prescribe the processes and procedures.

Compulsory Acquisition of Land

The powers of the state to compulsorily acquire land, which were previously provided in the repealed State Lands Act, 1962 (Act 125) have been expanded. The State has power to compulsorily acquire land: (i) for a public purpose and in the interest of defence, public safety, public order, public morality, public health, town and country planning or resettlement purposes; (ii) for a road, highway, railway, bridge, pipeline, canal, dam, sewerage system or any public utility service; or (iii) in order to secure the development or utilisation of that land or other land in a manner that promotes the public benefit.

The State is required to clearly indicate the necessity for an acquisition and provide reasonable justification for causing any hardship to any person who has an interest in or right over the property that is compulsorily acquired. The need for prompt payment of fair and adequate compensation is also paramount.

The Lands Commission is prohibited from facilitating a compulsory acquisition of land unless the intended user of the acquired land proves in writing to the Lands Commission that the funds for the payment of compensation and other costs have been paid into an interest yielding escrow account. The Lands Commission is responsible for managing the escrow account in trust for the intended beneficiaries. This requirement will ensure that funds for payment of compensation are readily available to persons whose lands are compulsorily acquired.  State Ministries, Departments or Agencies are also required to obtain Cabinet approval and make budgetary allocation for the payment of compensation and other costs before the compulsory acquisition of land commences. In addition to the requirements discussed above, chapter seven of the Land Act details the procedure for compulsory acquisition and the payment of compensation.

Protection of public lands from adverse possession

Public lands are automatically protected under the Land Act from encroachment, sale and adverse possession. It is no longer possible to acquire an estate or interest in public land by prescription or adverse possession and notwithstanding the provisions of the Limitation Act, 1972 (NRCD 54), a person who unlawfully occupies public land does not acquire an interest in or right over that land by reason of the occupation. It is also an offence to unlawfully appropriate, sell or convey public land and occupy, encroach on or interfere with public land without reasonable excuse.

 Consent to alienation of land

On an application for a licence or consent to assign, sublet, part with possession or mortgage of land, a lessee is not required to make any payment to the lessor except for reasonable administrative costs associated with the grant of consent. The lessor is required to grant or refuse the consent providing reasons for such refusal within three months and if the lessor fails to do so, the lessor shall be deemed to have granted consent. A lessee who is dissatisfied with a refusal for consent may refer the matter for resolution under the ADR Act and the Land Registrar may also on its own account proceed to register an interest if he determines that a lessor has unreasonably withheld consent.

The Land Act seeks to revolutionise Ghana’s land law and practice. It is vital that regulations are made swiftly to detail necessary processes and procedures to support its implementation and operationalization.  And, the law must be enforced to achieve sustainable land administration and management in Ghana.

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