BEWARE OF PROPERTIES WITH FRAUDULENT GOVERNOR’S CONSENTS IN LEKKI

There is a dangerous proliferation of illegally acquired governor’s consents and certificates of occupancy in circulation obtained with forged survey plans now in Lagos, particularly in Lekki axis. Just in case, you are in doubt, then you need to be informed that Lagos State Governor, Gov. Babatunde Fashola revoked, withdrew and cancelled some governor’s consents in Lekki based on fraud perpetrated on the survey plans sometimes ago. The notice was published on 11th February, 2013 in Guardian newspapers.

This trend has shattered lofty hopes of many potential land owners and   property investors into pieces. The attending and ‘unintended’ consequences are absolutely unimaginable and devastating. Many think buying land/property with governor’s consent or certificate of occupancy is a safe investment, only to later realize that their dream has turned into horrible nightmare.

The banking industries are also not susceptible to this fraudulent activity. As a matter of fact, banks are most potentially vulnerable. Many of them have inherited bad loans and irrecoverable debts as a result of illegally acquired governor’s consent or C of Os obtained with fictitious survey plans, used by fraudsters to swindle banks. This massive accumulation of bad loan has brought many banks to their knees and their credit collection and recovery departments are fighting endless legal battle in recovery. While some banks are gambling with their customers’ hard earned money by granting huge loans without proper scrutiny of titled documents, survey plans provided for loan facility, some are not aware of these fraudulent activities. Failure of banks to cross examine survey plan (annexed governor’s consent or C of O) to verify that it properly describes and defines the property used as collateral has led to financial loss. As a matter of fact, many are engaged in a scheme in which they obtain loans using illegally acquired titled documents (governor’s consent or C of Os) obtained with forged survey plans. So much for that, that is a topic for another article.

EXAMPLE OF GOVERNOR’S CONSENT OBTAINED WITH FORGED SURVEY PLAN.

Recently, a client who is wary of land scam and doesn’t want to invest his hard earned millions on a bad property decided to contact us for a land verification exercise. The property is said to be free from government acquisition in Orile-Ibamo village excision parcel A, and that it has a governor’s consent, survey plan and other relevant documents. On investigation in Alausa, and it was confirmed that the governor’s consent is indeed in land records and registered. At this stage, it is widely believed that the transaction can be concluded. The agent started engaging in high-pressure selling tactics often emphasizing the need for quick action. Please, refuse to be pressured to make an immediate decision. Generally, they steer you away from using a solicitor to handle the deal and a surveyor to conduct site inspection and preliminary survey, arguing that you don’t need added expenses.”You don’t need a surveyor when you haven’t made payment for the land, do you?” Now it is time for surveyor to conduct site inspection, to find out if the survey plan annexed to the governor’s consent properly defines and describes the property. The property is along Emmanuel Ibitolu street, Orile-Ibamo village Off Ado-Badore road, Eti-Osa Local Government Area, Lagos State.

After I carried out site inspection as the surveyor (representing the buyer), I discovered a ‘misrepresentation’ on survey plan. The property is presently within government acquisition and not free as claimed on survey plan. For this reason, the so called governor’s consent is as good as invalid and illegal because a forged survey plan had been used to obtain it. The property is not within the perimeter of land released by government in Orile-Ibamo village excision parcel A .It means coordinate of somewhere else that is free from government acquisition had been used to prepare survey plan for this property, which is not free from government acquisition. This is a clear case of fraud, a false representation that deceives and intended to deceive another so that the individual will act upon it for his or her injury. Those documents have been designed to mislead and made with intent to deceive the victim. There is danger in rushing to purchase a property because it is said to have a titled document without thorough verification.

FIG 1: SURVEY PLAN WITH FALSE REPRESENTATION OF PROPERTY             USING FICTITIOUS COORDINATES.

FIG 2: FRONT PAGE OF DEED OF ASSIGNMENT

FIG 3: LOCATION MAP SHOWING ACTUAL LOCATION OF PROPERTY (RED)AND MISREPRESENTATION (BLACK) OF PROPERTY WITHIN EXCISION.

FIG 4: LAGOS STATE OFFICIAL GAZETTE DESCRIPTION FOR ORILE IBAMO VILLAGE (PARCEL A).

 We informed the seller about this mischievous act, he could not believe his ears. In his disbelief, he contacted the wicked quack surveyor, who he said has a shopping complex along Addo road. He later told us that, after the quack surveyor had been informed about this fraud and dishonesty that the man could not deny it and he has ever since refused to answer his calls. What is most painful is that the owner has bought 5 other plots in that neighborhood through this wicked fraudulent man and collected millions of naira for processing the governor’s consents using forged survey plans. He asked for our assistance to find out status of other properties. Behold all the 5 plots are government acquired lands! This is just a possible awful consequences of using unskilled, untrained, illiterate omonile surveyor to carry out your survey because you think their charges are cheap. It is not cheap; it is actually expensive given the injury and financial tragedy that come with this disservice.

However bad you think land scam is, it is even worse. Here is a diligent man who had invested his entire gratuity buying landed properties .Now; he wants to pay for his children school fees who are studying abroad. It is really heart breaking and what an awful situation! This is one of many possible outcomes of land scams.

Most Nigerians don’t have a huge stock portfolio, large savings accounts or private jets. For most, having a piece of land to go with is their little piece of God’s green Earth. Having a landed property remains the greatest treasure that most people consider as personal dreams. Unfortunately, many have laboured so hard during their active years to achieve this personal lofty dream only for their hopes to be dashed into pieces with fictitious survey plans drawn up intentionally to mislead land buyers and commit what most people understand to be fraud-intentional misrepresentation or concealment. Unfortunately, intentionally misleading someone to their ultimate detriment is not only fraud but might lead to “unintended consequences”.

FIG 5: ILLEGALLY ACQUIRED GOVERNOR’S CONSENT USING FORGED SURVEY PLAN.

HOW TO PROTECT YOURSELF FROM BUYING PROPERTY WITH FRAUDULENT TITLE?

Being aware that land scam is real and how they work is usually not enough. Land fraudsters tend to target unsuspecting clients, so if you are on look out for them, you are far less likely to fall victim.

a)     Approach every property sale with caution, regardless of how that contact is made.

b)    Get an experienced property lawyer to thoroughly investigate ownership and handle transaction.

c)     Get to confirm the titled documents (governor’s consent or C of O) in

Land Registry.

d)    Consult  an honest registered surveyor to inspect  property

                               i.            To find out status of property.

                             ii.            To find out if  survey plan annexed to titled document properly defines and describes the property.

                          iii.            To possibly determine size (area) of property. This is to ensure you get value for your money.

e)     Insist on getting all information about  land sale before you agree to buy   property.

f)      Resist high pressure sales tactics. Agent pushes you to buy quickly, giving you ‘warnings’ about competition from others buyers or rising prices.

g)    There is no small issue concerning any land matter, it is usually bigger than it literally seems to be. It is also important and good practice to meet actual owner of property before payment.

As a point of principle, when buying property, always seek advice from independent parties- i.e. someone not acting for the seller. Get an experienced property lawyer and surveyor. I just can't begin to state how important it is to have competent, honest and qualified professionals working on your behalf.

Getting a site inspection survey at the time of purchase can save time, money and protect you from having bad investment   in long run. The importance of a land survey inspection before you make the most important financial decision of your life has never been greater. No one can locate your property boundaries on the ground, map and certify that location except for a registered land surveyor.

Contact us (ordinance concept) today to verify status of that land  and land documents before buying Mobile:08037046468, 08028541100,email: ordinanceconcept@gmail.com Verify that land before buying it. Don’t be lured into buying properties with fake documents. Many have lost their entire life savings due lack of a proper land verification. Getting a land verification exercise at the time of purchase can save you from a lifetime tragedy. Be warned!!!

Don’t entrust your most valuable asset, your real property to chance...

ABOUT THE AUTHOR

Folarin Noah is a Registered Surveyor in private practice in Lagos. He exposes frauds and scams in property market and dedicates his time to provide solutions to real property needs of landowners and continuing education to clients and professional service providers in land matters as it relates to surveying. 

Email address:ordinanceconcept@gmail.com or follynoa@yahoo.co.uk,

landsurveymatters@gmail.com

Mobile: +2348028541100,+2348037046468 ,PIN 7A45A7E3,

HOW TO PROTECT YOURSELF FROM BUYING PROPERTY WITH FRAUDULENT TITLE?

HOW TO PROTECT YOURSELF FROM BUYING PROPERTY WITH FRAUDULENT TITLE?

Being aware that land scam is real and how they work is usually not enough. Land fraudsters tend to target unsuspecting clients, so if you are on look out for them, you are far less likely to fall victim.

Take the following steps and you can be sure of safe transaction.

a)     Approach every property sale with caution, regardless of how that contact is made.

b)    Get an experienced property lawyer to thoroughly investigate ownership and handle transaction.

c)     Get to confirm the titled documents (governor’s consent or C of O) in

Land Registry.It is not safe to stop at the stage,as there are countless illegal title documents in Land Registry (obtained with fraud or fictitious survey plans).

d)    Consult  an honest registered surveyor to inspect  property

                               i.            To find out status of property.

                             ii.            To find out if  survey plan annexed to titled document properly defines and describes the property.

                          iii.            To possibly determine size (area) of property. This is to ensure you get value for your money.

e)     Insist on getting all information about  land sale before you agree to buy   property.

f)      Resist high pressure sales tactics. Agent pushes you to buy quickly, giving you ‘warnings’ about competition from others buyers or rising prices.

g)    There is no small issue concerning any land matter, it is usually bigger than it literally seems to be. It is also important and good practice to meet actual owner of property before payment.

As a point of principle, when buying property, always seek advice from independent parties- i.e. someone not acting for the seller. 

Get an experienced property lawyer and surveyor. I just can't begin to state how important it is to have competent, honest and qualified professionals working on your behalf.

Surveyors who foresee possible problems with survey can be a valuable asset to their clients. Those who carelessly fail to protect or inform the client in all survey matters may find themselves burdened with defending negligence.

Getting a site inspection survey at the time of purchase can save time, money and protect you from having bad investment   in long run. 

The importance of a land survey inspection before you make the most important financial decision of your life has never been greater. No one can locate your property boundaries on the ground, map and certify that location except for a registered land surveyor.

Do not entrust the most valuable asset you have on this Earth, your real property, to chance. Call a registered surveyor.

ABOUT THE AUTHOR

Mr. Folarin N.O is a registered surveyor in private practice in Lagos. He dedicates his time to provide solutions to real property needs and continuing education to clients and professional service providers on land matters.

For further information or in case you have any comment or feedback, don’t hesitate to contact the author.

Mobile: +234(0)8028541100,    +234(0)8037046468 

Email: folynoa@yahoo.co.uk   or landsurveymatters@gmail.com

SURVEYORS’S DUTY OF CARE AND PROFESSIONAL NEGLIGENCE

INTRODUCTION

In our day-to-day lives we all rely on professionals such as doctors, accountants, lawyers, surveyors, contractors, engineers and others to provide us with services and give us expert advice on how to handle certain situations. Such professionals generally are hired based on their expertise in a certain field and are expected to perform their duty with an appropriate level of skill and within a reasonable skill. Professionals are held to a higher standard of performance because they present themselves as more highly trained. Sometimes a professional fails to meet certain standards of care and you suffer a loss as a result; this is professional negligence and the professional may be liable for your losses.

When they make errors, the nature of the error can be very costly for a client; a doctor may kill a patient with negligence, a lawyer may fail to achieve the right outcome in a case, a contractor could build a house which falls down. If a land surveyor is under contract to perform a professional service, and that service leads to injury, the victims of that injury can sue for damages in a malpractice suit.

All professionals owe their clients a duty of care. A duty of care is a legal obligation which is imposed on an individual requiring adherence to standard of reasonable care while performing any acts that could foreseeably harm others.

Under the law, professionals have a duty of care to the people who hire them, because people are relying on their skills and expecting them to exercise reasonable caution.

When a surveyor acts for a client under a contract, in return for payment of a fee, the law will imply a term into that contract to that effect. At the same time, the professional relationship between the surveyor and client also gives rise to a duty of care. Even where there is no contract, if the surveyor knows or ought to know that someone is relying on his or her advice, survey plan or information to take decisions, he or she will owe that person a duty of care.

Regardless of the profession that an individual practices, each should understand the effect of today’s action on the future. It has been imposed on surveyors the certainty that they may be liable for cost resulting from professional negligence. 

CONSEQUENCES OF NEGLIGENCE OR MISTAKES

Pilots die by their mistakes, Doctors go to jail for their mistakes. A defective survey can make two communities to fight and kill themselves perpetually over land disputes. A mistake is potentially damaging to the surveyor and injurious to the public. Surveyors provide important services to individuals, governments and other professionals when it comes to accurate measurements, definition and demarcations of boundaries and other key features of a piece of land. As surveyors, we owe a duty of care to the public in securing and protecting property rights. Cadastral information is a core data set of any land management and administration. Land surveyors are the first line of protection for private property rights, therefore surveyors must be right and believable and surveys must be legally correct.

Claims against surveyors are usually made in cases where the duties of a surveyor were not properly carried out. Claims against surveyors for professional negligence reflect the importance of a professional survey. If a surveyor is negligent, the effects of this negligence could mean financial loss to their clients and troubles to the public, ultimately influencing what the public think about the profession. Making claims against surveyors for professional negligence compensation is one of the legal options available if a surveyor employed has been negligent in their professional duties.

WHAT IS DUTY OF CARE?

All professionals owe their clients a duty of care, which is normally defined as ‘providing a service to the standard of a reasonably competent member of that profession’. A duty of care is a legal obligation which is imposed on an individual requiring adherence to a standard of reasonable care while performing any acts that could foreseeably harm others. Surveyors  owe a duty of care to the public and of course to the profession.

This duty of care arises from two independent sources. Where a surveyor acts for a client under a contract, in return for payment of a fee, the law will imply a term into that contract to that effect, if none is expressed ^[1]. At the same time, the professional relationship between the surveyor and client also gives rise to a duty of care in tort. Even where there is no contract, if the surveyor knows or ought to know that someone is relying on his advice or survey plan or information to take decisions, he will owe that person a duty of care ^[2]. It is the first element that must be established to proceed with an action in negligence.

It is the duty of a land surveyor in his (her) profession to use that degree of knowledge, skill, and care ordinarily possessed and used by members of that profession, and to perform any service undertaken as a land surveyor, in a manner that a reasonably prudent land surveyor would use under the same or similar circumstance.¹²

SURVEYORS’ NEGLIGENCE?

What is negligence? Conduct that falls below the standards of behavior established by law for the protection of others against unreasonable risk of harm. A person has acted negligently if he or she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances.

As with many other specialized professionals, land surveyors can be sued for failing to meet a specified duty. If a land surveyor is under contract to perform a professional service, and that service leads to injury, the victims of that injury are able to sue for damages in a malpractice suit. Malpractice can also occur in this field when a land surveyor participates in unethical conducts. Whatever the type of survey was provided, most surveyors negligence claims will require some form of evidence from an independent surveyor.

WHAT IS BREACH OF DUTY?

In order to make a claim against a negligent surveyor then it is necessary to show that there is a duty of care between the parties and that the negligent surveyor has failed to act with the degree of care and skill expected of a reasonably competent surveyor, therefore leading to financial loss.

More specifically, to recover in an action for professional negligence, the plaintiff has the burden of proving: (1) the standard of care within the profession; (2) the defendant’s failure to adhere to the professional standards; and (3) that the defendant’s failure to adhere to the professional standards proximately caused harm to the plaintiff.⁴

If a land estimates are found to be inaccurate or unsatisfactorily completed, a malpractice lawsuit may be filed. Additionally, if a land surveyor surveys property for a prospective buyer and carelessly defines that properties boundary, they can also be held liable.

Of course not every mistake will amount to a breach of the duty to exercise reasonable skill and care. Even though a duty of care is owed, a surveyor will not be liable for losses unless it can be shown that he fell below the minimum standard expected of reasonably competent surveyors.

In addition to his duty to his client or others to carry out his work with reasonable skill and care, the surveyor is bound by the rules of conduct of his profession and is subject to his professional body's disciplinary proceedings for a breach of those rules.

The claimant must be able to show a duty of care imposed by law which the defendant has breached. In turn, breaching a duty may subject an individual to liability.

WHAT IS STANDARD OF CARE?

Surveyors are expected to perform with the same degree of care and skill exercised by others in the profession in the same area of expertise.

By virtue of Surveyors Council of Nigeria’s registration, surveyors are not restricted in the areas in which they may practice. A surveyor in general practice may consider other areas of first order control, topographic mapping, GPS, utility surveys, forensic surveys and property surveys are all covered under the umbrella of a registration or license. This may be so, but once a surveyor undertakes any project within any area of surveying, the court will assume that that surveyor will exhibit that degree of skill, care and ability that a surveyor who practices daily in that area possesses.

When a surveyor’s work is questioned, a court will require testimony of an expert in that particular field to inform the court of the standard of care. In claiming damages against a surveyor, it is proper to introduce evidence and testimony from other surveyors about what an ordinary skilled surveyor prudently does. Taking the exercise of proper care and skill a step further, it may be said that the standard expected of any professional is that of “due diligence”

PROFESSIONAL NEGLIGENCE

Professional negligence is in two forms.

        i.            An error - something you did wrong.

      ii.            An omission - something you failed to do.

Reasonable Competence                        

A surveyor will only be considered to be negligent if they have failed to act with the degree of care and skill to be expected of a reasonably competent surveyor. Examples of professional negligence by surveyors include but not limited to:-

• Miscalculations
• Misrepresentation
• Use of defective/fictitious coordinates
• Endorsing a land in government acquisition as free from known government acquisition, thereby misleading prospective buyers.
• Defective orientation
• Defective title and location
• Failure to inspect the property properly
• Exaggeration of area/size of land
• Failure to make sufficient enquiries
• Producing an inadequate or defective report
• Failure to carry out proper demarcations and pillar numbering before or after preparation of survey plans.
• Honest mistakes
• Backdating.

Whichever area of surveying you are involved in, there is always a goal. But even with your level of skill and preparation, in practice, for one reason or another, it’s not always achievable. The risk of making mistakes is real and potentially very damaging –for both you and your client.

Surveying requires special skills, education, training or experience. If a person engages in an activity requiring special skills such as piloting an airplane, the standard by which his conduct is measured is the conduct of a reasonably skilled, competent, and experienced person who is a qualified member of the group authorized to engage in that activity.

In other words, the hypothetical reasonable person is a skilled, competent, and experienced person who engages in the same activity. Often persons practicing these special skills must be licensed, such as surveyors, physicians, lawyers, architects, pilots, and drivers. Anyone who performs these special skills, whether qualified or not, is held to the standards of conduct of those properly qualified to do so, because the public relies on the special expertise of those who engage in such activities. Thus, an unlicensed driver who takes his friends for a joyride is held to the standard of conduct of an experienced, licensed driver.

The law does not make a special allowance for beginners or quacks with regard to special skills. The learner, beginner, or trainee in a special skill is held to the standard of conduct of persons who are reasonably skilled and experienced in the activity. Sometimes the beginner or quack is held to a standard he cannot meet. For example, a first-time driver clearly does not possess the experience and skill of an experienced driver. Although it may seem unfair to hold the beginner  or quack to the standards of the more experienced person, this standard protects the general public from the risk of a beginner's lack of competence, because the community is usually defenseless to guard against such risks.

SURVEYOR’S OBLIGATIONS TO THE CLIENT

The surveyor, when performing a given service for a client, assumes certain ethical obligations in addition to liabilities. But these obligations to the client may not supersede or interfere with the surveyor’s obligations to associates or to the public. He or she should serve clients faithfully but should refuse to do that which is illegal and unethical and that which violates a duty of responsibility to others. The surveyor advises clients about what is right and proper. However, if a client insists otherwise, the surveyor must withdraw, with notification being given to the client in writing. Regardless of the fee charged, the surveyor is obligated to perform a correct survey.

Communications between the surveyor and clients are confidential and should remain so. But the surveyor may not be party to an illegal act or fraud and communications concerning illegal acts or fraud are not confidential.

SURVEYOR’S OBLIGATIONS TO THE PUBLIC

The surveyor has the following obligations to the public

Ø  To see that client’s boundaries are properly monumented without subtracting from the rights of the adjoining land owner.

Ø  Not to initiate boundary disputes.

Ø  Not to aid in unauthorized surveying practice.

Ø  To see that those who prove unworthy of their privileges have those privileges deprived.

Ø  To produce a quality product/survey regardless of price.

Ø  To protect the public against foreseeable risks

SURVEYOR’S OBLIGATIONS TO OTHER SURVEYORS AND THE PROFESSION.

Surveyors not only have obligations to one another but also to the profession as a whole. In the event a surveyor discovers an error or disagrees with the work of another surveyor, it is the duty of that surveyor to inform the other surveyor of such fact.

In general, surveyors should not criticize another’s work in public or become associated with other surveyors who do not conform to ethical practices. They should cooperate with other surveyors concerning information of mutual interest of benefit and support their professional organizations.

  

CONCLUSIONS

The practice of land surveying as a learned profession should be to safeguard life, health, and property and to promote the public welfare, its practitioners in can be held accountable to the profession and members of the public by high professional standards in keeping with the ethics and practices of the other learned professions. If you have accepted an assignment as a surveyor, know that your profession needs you and you are rendering a valuable service to the public as well. Professionalism is measured by the quality of services rendered to the public and not by self proclamation. The rules and regulations of the profession are meant to protect the public from unsatisfactory services and undue risks.

 A client employs a land surveyor to obtain a certain level of expertise. For the surveyor, there is only one rule: Bring to the client the level of expertise expected. There are no such surveys as good and poor surveys, only adequate surveys that purport to do the job that was intended. Surveyors who foresee possible problems with surveys can be a valuable asset to their clients and can stay out of troubles. As with many other specialized professionals, it must be emphasized that surveyors can be sued for failing to meet a specified duty and a client has a tendency to sue surveyor.Therefore, we must conduct our business and professional practice defensively, as if we will be going to court on every project that will turn out and that every survey plan is a litigious element because it is a registrable instrument.

As a professional land surveyor, you can and should know more about the law as it affects your daily practice. All professional land surveyors should keep in mind that licensing statutes are for the protection of the public’s welfare and professional exist to serve the public, not themselves.

 REFERENCES

1.Robillard, Walter G., Wilson, Donald and Brown, Curtis, Evidence and Procedures for Boundary Location, Fifth Edition

2.  Robillard, Walter G., Wilson, Donald A. and Brown, Curtis M., Brown’s Boundary Control and Legal Principles, Fifth Edition

3. Traversing the Law-Testifying in Court, Jeff Lucas.POB magazine

4. Traversing the law: Does a mistake constitute negligence? Jeff Lucas.POB magazine

5. http://www.canter-law.co.uk/index.php

6. Wikipedia Free Encyclopedia. http://en.wikipedia.org/wiki/Negligence

7. The Free Diction by Farlex. http://legal-dictionary.thefreedictionary.com/negligence.

ABOUT THE AUTHOR

Folarin Noah is a Registered Surveyor in private practice in Lagos. He dedicates his time to provide solutions to real property needs of landowners and continuing education to clients and professional service providers in land matters as it relates to surveying. Email address:follynoa@yahoo.co.uk, mobile: +2348037046468