Is Your Residents' Association Constitution Legally Binding?

Every organised Nigerian estate has a constitution. It sets out the committee structure, the dues, the rules about noise and building works and gate hours, and what happens to residents who do not comply.

Most committees treat it as settled law for the estate. Then a resident refuses to comply, says "I never agreed to any of this," and the committee discovers it has never thought about why the document binds anybody.

This article covers what actually makes an estate constitution enforceable, who it binds, and the four things that weaken it.

Before we start: Home Access builds estate management software. We are not a law firm and this is not legal advice. If your constitution is being challenged, or you are drafting or amending one, engage a Nigerian property lawyer.

A constitution binds by consent, not by geography

The single most important idea, and the one most committees have backwards.

An estate constitution is not legislation. It does not apply to an area. It is closer to the rules of a club, binding on the people who agreed to be bound and on nobody else.

This is why the Megawatts decision matters. In Megawatts Nig Ltd v. Registered Trustees of Gbagada Phase 2 Residents' Association (Suit No. FHC/L/CS/982/2020), the Federal High Court in Lagos held that while people who voluntarily join an association are bound by its rules, those merely presumed to be members by an alleged custom cannot be compelled to follow those rules against their will, because sections 40 and 41 of the Constitution guarantee freedom of association.

So "he lives here, therefore the constitution applies to him" is not a legal argument. It is an assumption, and it is the assumption that fails.

Note also that the association in that case was registered as incorporated trustees, and still lost. Registration gives the body legal personality. It does not make its rules binding on people who never joined.

The four sources of authority

In practice, an estate constitution draws its force from some combination of four things. Most estates have never worked out which ones they actually have.

1. Documented consent to membership. A signed membership form. An acknowledgement of the estate rules at move-in. Anything demonstrating that this specific person agreed. This is the strongest and rarest.

2. A covenant in the purchase documents. Where the deed of assignment, sale agreement or estate covenant obliges the buyer to comply with estate rules and pay a service charge, the obligation is contractual and arises from the purchase, not from association membership. This is the strongest footing available to most estates, and many committees have never checked whether their estate has it.

3. Proper adoption at a general meeting. A constitution adopted at a properly convened, quorate general meeting binds the members who were entitled to participate in that decision, whether or not they attended. A document that circulated and was never formally adopted binds nobody.

4. Conduct. A resident who has attended meetings, voted, paid dues for years and used association facilities has behaved as a member. That is evidence of consent, though weaker than a signature.

Work out which of these your estate actually has. Most committees discover they are relying entirely on the fourth, which is the weakest.

The four things that weaken a constitution

It was never properly adopted. Ask when your constitution was adopted, at what meeting, and whether that meeting was quorate. A surprising number of estates cannot answer. Some are working from a draft the developer provided. Some inherited a document from a committee three cycles ago with no record of its adoption.

If it was never adopted, that is fixable. Put it to a properly convened, quorate general meeting, minute the vote, and record the numbers. Do that before you need it.

It has been amended informally. A dues increase agreed on WhatsApp. A new rule announced by the committee. A gate-hours change decided by three people. Constitutions specify how they may be amended, usually requiring a general meeting and a defined majority. Amendments made outside that process are vulnerable, and so is every enforcement action taken under them.

It is silent on the things that matter. Most estate constitutions describe positions and meetings well, and are vague on the questions that actually cause disputes: who is a member and how do they become one; who is liable for a rented unit, landlord or tenant; what are the consequences of non-payment, precisely; what majority is needed to pass a levy; how are disputes resolved. A constitution silent on these does not resolve them.

It contains provisions that would not survive a challenge. Rules purporting to deny a resident access to their own property, to seize belongings, or to compel membership are the ones most likely to be struck down, and their presence weakens confidence in the rest of the document.

Who does it bind?

Take each category deliberately.

Owner-occupiers who signed something or bought subject to a covenant. The strongest position.

Owner-occupiers who never signed anything and bought before any covenant existed. The Megawatts problem. If your estate has residents in this category, they are where challenges will come from.

Tenants. A tenant has a contract with their landlord, not with your association. Unless the tenant has separately acknowledged the estate rules, the constitution binds them only weakly. Capture that acknowledgement at move-in. It takes a minute and it cannot be reconstructed afterwards.

Absentee plot owners. They have not moved in, may never have attended a meeting, and often argue they receive nothing. If your constitution imposes obligations on undeveloped plots, that provision needs to be clearly adopted and clearly justified.

Visitors, contractors, domestic staff. Not members and not bound. Your control over them comes from your rights as an occupier of the estate's common areas, and from the resident who invited them, not from the constitution.

Practical steps

Find the document and check its provenance. When adopted, at what meeting, with what quorum. If the answer is unknown, re-adopt it properly at your next AGM.

Ask your lawyer to look at the purchase documents. If the deed of assignment binds buyers to the estate rules and a service charge, your position is far stronger than the constitution alone. Many committees have never checked.

Start capturing consent now. Every new resident, owner or tenant, acknowledges the estate rules on arrival, in writing. You cannot fix historical gaps, but you can stop adding to them.

Fix the silences. Membership, liability for rented units, the consequences of non-payment, the majority needed for a levy, dispute resolution. Draft the amendments, circulate them with the AGM notice, adopt them properly, minute the vote.

Remove what will not survive. Anything purporting to deny access to a person's own home, or to seize property.

Keep it where the next committee will find it. A constitution nobody can produce is a constitution you do not have.

The realistic position

Your constitution probably binds most of your residents most of the time, because most residents do not challenge it. That is not the same as being enforceable, and the gap only becomes visible when someone decides to test it, usually the resident with the largest arrears and the most to gain.

The committees that hold up are the ones that can produce a properly adopted document, evidence of each resident's consent, and a record of consistent application. Those are three separate things, and most estates have none of them.

Written by Home Access, a Nigerian estate management platform used by residents' associations to keep auditable records of residents, dues and gate activity. homeaccess.africa

This article is general information, not legal advice. Speak to a qualified Nigerian property lawyer about your association's constitution.