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Opinions of Wednesday, 24 June 2020

Columnist: Limann A. Mohammed

The implication of the doctrine of caveat emptor in the purchase of land in Ghana

Introduction

Caveat emptor is a Latin phrase which literally translates to “let the buyer beware”. The doctrine is actually part of a long phrase: Caveat emptor, quia ignorare non debuit quod jus alienum emit which stands for "Let a purchaser beware, for he ought not to be ignorant of the nature of the property which he is buying from another party."

This simply means, it is the buyer’s responsibility, not the seller’s, to find out if there is anything wrong or any defect with whatever they intend to purchase or buy. So, in purchasing or buying a parcel of land, the bounden duty or burden is on the purchaser or buyer to conduct reasonable due diligence about the land to be able to take the decision.

Legal Position

According to the Supreme Court, the apex court, in Brown V. Quashigah [2003 - 2004) SCGLR 930 at 954:

“The principle of caveat emptor is still a postulate of our law. A prospective vendor or purchaser of land cannot shift onto the shoulders of the existing owner the burden of informing them of the encumberance, title or interest held in him. In many cases it will not even be enough to conduct a search in the Deeds Registry or the Land Title Registry”.

This means that a prospective purchaser or buyer of land must take steps to conduct reasonable due diligence. Some of the areas the due diligence must cover include the following:

a) Site visits – the prospective purchaser or buyer should visit the site alone to talk to neighbours about the ownership of the land, find out if there are disputes, and observe the physical nature of the land - whether the place is flood prone or earthquake zone, whether there is fence wall, construction ongoing or building materials on site etc;

b) Conduct official search at Lands – It is imperative to conduct a search at the Deeds Registry or Land Title Registry to know if the land is registered and the true owners of the land;


c) Engage a licensed Surveyor to pick the coordinates – it is recommended to engage a licensed Surveyor to cross check if indeed that site plan of the Vendor or Seller matches with the physical land at the site.


d) Conduct a search at the Town and Country Planning - this will enable the prospective buyer or purchaser to determine the zoning plan in order to determine whether the intended purchase of the land is aligned with the zoning plan.


e) Conduct a search at the Court’s Registry – it is also recommended to write to the Registry of the Court where the land is situate to check if there is any litigation in respect of the land;


f) Buying a land from a married person – it is always recommended to talk to the other spouse of the seller on the purchase and make sure the other party is aware and willing to witness the transaction to avoid future dispute.


Conclusion

His Eminence Dr. Date-Bah JSC in the Brown V. Quashigah case at page 966 cautioned that:

“Purchasers of land, who ignore signs of possession by a party other than their vendor on the land, do so at their own risk are likely to come to grief”

Consequently, it is instructive to note that prospective purchasers or buyers who fail to undertake reasonable due diligence before purchasing or buying land do so at their own peril.

The possible exception to the application of the doctrine of Caveat Emptor is where a vendor or seller has made misrepresentations, fraudulent or false statements in respect of the land, the subject matter of the transaction.

Email: Mohammed.limann@gmail.com

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