Transfers within a family — to a spouse, to children, to a family company — are common and perfectly lawful. They are also where most of the informality creeps in, and informality is what causes trouble later.
Section 42(2) and (3) — the consideration must be stated
(2) The consideration for a transfer of land shall be specified in the transfer.
(3) Where the consideration is not an amount of money, the approved form shall be amended to state concisely the nature of the consideration.
So a gift is not a problem — but it must be described. “Natural love and affection”, or the transfer of another asset, or the assumption of a debt, is stated as what it is.
Under section 42(4), a person who executes a transfer which does not specify the correct consideration is guilty of an offence — a fine not exceeding K200. Recording a nominal “K1” on a transaction that is really a sale, or an invented price on a gift, is an offence and creates a document that misstates the transaction.
It also produces a mismatch that surfaces later — on a resale, in a family dispute, in an estate, or before the Internal Revenue Commission on stamp duty.
The recipient of a gift is fully protected
Subject to section 28, a transferee — whether voluntary or not — is not, except in case of fraud, affected by actual or constructive notice of an unregistered interest.
The words “whether voluntary or not” matter. In some systems a volunteer takes subject to equities a purchaser for value would defeat. Here, once registered, the donee holds with the same indefeasibility as a buyer, subject only to the section 33 exceptions.
Ministerial approval is not waived for family
Section 128(1) of the Land Act 1996 defines a controlled dealing as a disposition of, or a contract or agreement to dispose of, a leasehold estate. A gift is a disposition. There is no family exemption.
So the transfer is void without the Minister’s approval, and approval must be withheld unless rent is paid to date and the improvement conditions have been performed — or special grounds of an urgent or exceptional character are shown.
The one genuine exception is a transmission — title acquired on death or insolvency — which is expressly excluded from the definition. See transmission on death.
The 28-day presentation and lodgement requirement in section 128(4) applies too, on pain of a fine up to K5,000.
What goes wrong with family transfers
- Nothing is registered. The parties agree, the occupier moves in, and no transfer is ever lodged. Years later the registered proprietor has died, or sold to someone else, and the family member has no registered interest — and under sections 24 and 45 notice of their claim binds nobody.
- No approval obtained, so the dealing is void and cannot be registered even when someone finally tries.
- An informal “sale” within the family with money paid in instalments and no security — remember section 44: a transferor has no equitable lien for unpaid purchase money.
- Occupation mistaken for ownership. Living on the land for decades does not make you the registered proprietor.
- The lease lapses in the meantime — rent unpaid, conditions unmet, and the whole thing is forfeited.
Lodge a caveat to protect the intended transferee’s interest — and diarise the three-month lapse, which requires proceedings and written notice to the Registrar. Do not rely on the family understanding.
Customary land is a different question entirely
None of this applies to customary land. Under section 132 of the Land Act, a customary landowner has no power to sell, lease or otherwise dispose of customary land or customary rights otherwise than to citizens in accordance with custom — and a contract to do so is void.
Transfers within a family on customary land are governed by the custom of that place, and disputes go to the Land Courts, not to the Registrar.
Doing a family transfer properly
- Search the title and confirm who the registered proprietor actually is.
- Check rent and improvement conditions before anything else.
- Obtain Ministerial approval where the lease has more than five years to run.
- State the true consideration, or describe the gift concisely.
- Deal with stamp duty — take advice on what is payable.
- Execute in the approved form and lodge with the duplicate title, within 28 days.
- Consider whether a transfer is what you actually want. If the intention is to provide for someone after your death, a will may be the better instrument — see the Wills, Probate and Administration Act (Chapter 291) — and the land then passes by transmission, which needs no Ministerial approval.
Sources
- Land Registration Act (Chapter 191) — ss 24, 28, 33, 42, 44, 45, 82–91; Part XII
- Land Act 1996 — ss 122, 127–129, 132
- Wills, Probate and Administration Act (Chapter 291)
- Timothy v Timothy [2022] PGSC 82; SC2282
Before relying on anything here, read the current text of the Land Act 1996 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.