TYPES OF CONTRACT OF SALE OF LAND

1.      Oral Contract:
This is a common method of acquiring land under native law and custom. Here, the requirement of writing is not essential. An oral contract is valid under Nigerian law.
2.      Open Contract:
This provides for only the minimum requirements of the statute of frauds especially with respect to the content of the memorandum. The contract is however not detailed enough since it leaves some of the terms of the contract to be implied by law. In Ojukpan v Grovuyovbe, the court held that a purchase receipt in respect of land is evidence that there was an agreement for sale and the consideration for such sale was paid by the purchaser. Also see the case of Osagie v Odeyinka where the court held that where land is sold and the purchase receipt is issued, the purchaser acquires an equitable interest in the land which can be enforced by an action for specific performance to compel the vendor to carry out a formal conveyance. As noted earlier, the vendor in such a situation is an implied trustee of the land for the purchaser who is the beneficial owner pending the execution of a formal conveyance. In consequence of this, any improper dealing with the land by the vendor will constitute a breach of that trust. 
3.      Formal Contract:
This is a contract of sale of land which in addition to the names of the parties, the property and the price, provides for some special conditions of sale as may be agreed by the parties. It is usually divided into three parts namely: a. the particulars of sale b. the general condition of sale c. the special condition of sale. The particulars describe the subject-matter of the contract. The conditions state the terms on which the land is sold. Clearly, a formal contract of sale is a more detailed contract.
            Special conditions to be contained in a formal sale of land include: 
   a.      Payment of deposit:
Payment of deposit is a guarantee that the purchaser is serious with the transaction and will complete the deal. However, it is not essential to the formation of a complete and binding contract. The import of this statement is that the mere fact that deposit wasn’t paid will not make a contract not binding and enforceable.
It is important to consider the distinction between deposit and part-payment. According to the court in Biyo v Aku, a deposit is some token payment and is non-refundable in the event of default by the purchaser. Where deposit is paid, contract is not finalized. This means the vendor is at liberty to assume after waiting within a reasonable period of time that the purchaser is no longer interested. He can sell to any other prospective buyer. For part payment, the contract has been concluded leaving the payment of the balance of the purchase price outstanding. Here, since the contract is binding, either of the parties can sue for its enforcement. The vendor can sue for the balance and the buyer can sue for specific performance. In this case, P had made payment of twelve million naira to V and had been put in possession. The court held that non-payment of the balance of the purchase price did not vitiate the valid contract of sale of land they had entered into. See also Gege v Nande.
            The thin line of distinction between the two is that a deposit is a mere promise by the purchaser to complete the transaction, subject to any default on the part of the vendor e.g. where the vendor can’t convey good title.  Thus, it is not regarded as consideration. 
   b.      Payment of balance and interest on unpaid purchase price:
This depends on the nature of contract between the parties. If what was advanced to the vendor was part performance, it stands to reason that the balance must be paid upon the completion of the contract or on the date fixed for payment since the purchase price can’t be changed. It is not unusual to find a clause in the agreement that where the purchaser defaults in payment of the balance, his liability becomes not only the balance but also interest for default. But where the default in payment was due to the fault of the vendor, the purchaser may pay only the balance (Esdaile v Stephenson). It has been noted that where a deposit was advanced, the purchase price can be changed since there was no binding contract between the two. 
   c.       Capacity of the vendor:
The contract should provide for the capacity of the vendor whether the vendor has legal title to the property or an equitable interest. A vendor could be selling as a beneficial owner, mortgagee, Personal Representative, trustee etc. The capacity of the vendor determines the covenant for title to be implied in the conveyance upon completion. In Green v Whitehead, it was held that a vendor couldn’t compel the purchaser to accept a conveyance under a capacity different from that which he covenanted to have. 
   d.      Chattels & Fixtures:
A chattel is a personal property usually movable e.g. cars, table, cooker etc. as distinguished from real property. Fixtures are personal property fixed to the land and are assumed to be part of it e.g. doors, ceilings etc. 
   e.       Date of Completion:
This depends on the nature of the contract. But the general rule is that time is not of the essence of a contract of sale of land. Thus, where the parties fail to agree on the date of completion, the law implies that the transaction should be completed within a reasonable time. In Johnson v Humphrey, the court noted that reasonable time is the time within which a legal business can be concluded. It is objective and depends on what the parties consider as reasonable time. Note that where there’s no date of completion, parties can introduce completion date into the agreement. 
   f.        Vacant Possession:
The law implies that the vendor will deliver to the purchaser, vacant possession of the property. But where the land is purchased with liabilities with the purchaser having notice of existing tenancy in respect of such land, he is bound by the tenancy. 
   g.      Possession before completion:
Unless the parties agree otherwise, possession is delivered to the purchaser after completion. But where it is the intention of the parties that the purchaser should enter into possession of the land before the contract is concluded, it must be stated clearly in the contract. In Johnson v Humphrey, Miss Humphrey orally agreed to sell her bungalow to Mr Johnson. They agreed a price but the agreement was that she would complete and give vacant possession when she could find alternative accommodation. The next day she signed a memorandum of the oral agreement. This memorandum did not mention the arrangement as to when completion was to be given. Miss Humphrey refused to complete. Mr Johnson sought specific performance. It was refused. The memorandum was incomplete because it did not incorporate the arrangement as to when possession was to be given.  Even if this were wrong, there had been a failure to agree on the time for completion.  There was no room for an implied term that completion would take place within a reasonable time: the parties had expressly made some other bargain as to completion. The term was that completion would take place when Miss Humphrey could find suitable alternative accommodation. This was too vague to be enforceable. Accordingly, they had failed to reach agreement on a central term and there was no contract. 
   h.      The Risk and responsibility of the property:
The risk in the property passes to the purchaser immediately after contract and the vendor is under no general duty to insure or continue to maintain the insurance on the property. 
   i.        Exceptions and reservations:
Unless the parties have agreed in the contract on the exceptions and reservations to be included in the Deed of Assignment, these can’t be introduced for the first time at the conclusion stage. 
   j.        Arbitration Clause:
Purchasers are advised to always insert in the contract of sale arbitration clause to ensure speedy disposal of any dispute arising or connected to the transaction.

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