LAND LAW

BY DATIUCE DIDACE

LAND LAW
*Whatever attached to land it becomes part of a land and this depends on the degree of
attachment as well as its purpose of attaching. E.g;- If someone decides to put carpet on the floor
may not be part of a land but when he puts tiles this may be part of a land.

Definition of Land according to Land Act Section 2 – "land" includes the surface of the earth and
the earth below the surface and all substances other than minerals or petroleum forming part of or
below the surface, things naturally growing on the land, buildings and other structures permanently
affixed to or under land and land covered by water;

According to legal Latin Maxim which states that Quicquid plantatur solo, solo cedit (Latin,
"whatever is affixed or attached to the soil belongs to the soil") is a Legal Latin principle related to
fixtures. The legal principle means that something that is or becomes affixed to the land becomes
part of the land; therefore, title to the fixture is a part of and passes with title to the land and
consequently whoever owns that piece of land will also own the things attached.

That maxim is different from the Zanzibar Land tenure Act 1992 Section 2- “land” includes
land covered by water, all things growing on land, and buildings and other things permanently
affixed to land, except trees when specifically classified and owned separately.

Differences between chattels and Fixtures

‘Fixtures’ are those material things which are physically attached to land so that they become part
of the reality and the property of the landowner. An object which becomes a fixture merges, so to
speak, with the land and accordingly passes automatically with all subsequent conveyances of the
land unless lawfully severed from it. A fixture will always belong to land owner a chattel may
belong to another.
A chattel on the other hand is a physical object which never becomes attached to the land even
though placed in some close relation with it and so does not pass with conveyances of the land.

Factors for determination of whether the item attached form a part of land depend on two
factors;-
1- Degree of annexation(attachment)
According to the degree of annexation test, an article is a fixture if it is attached to land or a
building in a substantial manner, such as by nails or screws. The more firmly or irreversibly the
object is affixed to the earth or a building, the more likely it is to be classified as a fixture. There
must be a physical connection with the land or with something that is part of the land and object.

2- The purpose of annexation

The determination of the status of an item is not conclusively determined by the degree of
annexation. If the circumstances show that the object was intended to form part of the landscaping
or architectural design of the premises and is resting by their own weight, then they can be regarded
as fixtures. Items attached to the land for the purpose of enjoyment are regarded as chattels.

Case;-
Elwis v. Maw(1802) 3 EAST 38.
Facts
 LAND LAW
BY DATIUCE DIDACE

In this case the farmer had build at his own cost of shade for animals, carpenters shade and fuel
house and the tenant removed before the end of the lease.
Held
It was held that the farmer could not remove chattels even if they were fixed to his hold for his sole
purpose of improving his agricultural operation

LAND AND PROPERTY

In common law land has been taken as a property because it has value due to his benefit.
While property involve everything which are tangible or not tangible. e.g;- Music is a property
because it can be converted.
Property in common law sometimes known as chartel, also known as real property and personal
property which may include movable and immovable properties.
Real properties refers to properties which we cant carry but we can carry its tittle. e.g;- house,car
e.t.c. While personal properties refers to property that could be of personal complain or claim the
interests or damages.

SOURCES OF LAND LAW

1- Constitution of the United Republic of Tanzania (URT)

Constitution of URT talks about right to own property in Article 24 (1) Every person is entitled to
own property, and has a right to the protection of his property held in accordance with the law.

2- Written laws(statutes)
 Land tribunal Act No.8 1994
 Survey Act No. 9 1990
 The village land Act 1999
 The land tenure Act No.15 2003
 Land registration Act Cap.334
 The land acquisition of property Act
 The land disputes Act
 The mining Act
 Zanzibar land tenure Act N0.12 of 1992

3- Customary laws
The Land Act provides the acquisition of customary laws as long as those customs fulfill the needs

4- Islamic laws
Especially when it comes to the issues of inheritance where by Muslims have their own ways of
inheriting as long as the parties in the case agreed to use Islamic law.

5- English laws
The court shall apply ;- Constitutional law, doctrine of equity, statutes of general interpretation in
implementing and interpreting Land Act 1999.

6-Case laws
These are cases and decisions of the judges in the courts concerning the land which may also be part
of the foundation of the laws of land.
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BY DATIUCE DIDACE

LAND TENURE
This name has been taken or modified from a latin word known as tenere which means to hold.
This is a way or condition or mode of owning the land where by the tenure signifies the rights and
mode of owning the land.

*Characteristics of land tenure

1- Mode of production
2- Social economic activities
3- It is not static it changes according to the need of time.

*Factors which lead to land tenure

1- Size of population
2- Climate
3- Religious beliefs
4- Political interests.

RIGHT OF OCCUPANCY
According to Section 2 of L.A Right of occupancy means a title to the use and occupation of land
and includes the title of a Tanzanian citizen of African descent or a community of Tanzanian
citizens of African descent using or occupying land in accordance with customary law.

Right of occupancy can be categorized into two bases;-

 Duration- In term of duration there is a specific time to acquire the right of occupancy,
when the expire the right transfer to the granter or customary obliged person.
E.g;- In Zanzibar granted right is 99 years as long time and five years as short time. But for
the customary is 99 days.
 Function- In term of function a person granted right of occupancy according to his function
either is for agriculture,building, manufacture, infrastructure, school, mosque etc

*Types Of Right Of Occupancy

1- Granted right of occupancy
2- Customary right of occupancy

1- Granted right of occupancy – This is right of occupancy which is granted through permission
of government.

Procedures for granted right of occupancy, Section 24 - 30.

1. Application for right of occupancy to commissioner for Tanzania mainland and Minister for
Zanzibar. S.24 Land Act cap 113 1999.
2. Procedures for application for granted right of occupancy. S.25 Of Land Act.
3. Determination of application by Commissioner. S.26 Land Act.
4. Offer of a right of occupancy by commissioner or minister in Zanzibar. S.27 Land Act cap
113 1999.
5. Acceptance of offer of granted right of occupancy by the applicant. S.28 Land Act cap 113
6. Grant of right of occupancy by issuing a certificate of granted right of occupancy to the
applicant. S.29 Land Act cap 113.
7. Registration of letter of an offer. S.30 Land Act cap 113
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BY DATIUCE DIDACE

2- Customary right of occupancy

According to S.2 of L.A is the deemed right of occupancy is granted by the Village Council
because all of the village land is vested under the Village Council. This is the right of occupancy
either by purchase, by gift or by inheritance. S.7

Procedure for customary right of occupancy

1. Application of an offer by applicant to village council within 90 days from the day he
received an offer.
2. Procedure for application for customary right of occupancy
3. Determination of an application by the village council within 90 day.
4. Issue of an offer for a customary right of occupancy, when the village council has formed
opinion to grant customary right of occupancy.
5. Acceptance of an offer of customary right of occupancy by the applicant
6. Issue of certificate of customary right of occupancy to the applicant.

Circumstances existing in the right of occupancy

1. The applicant of the interests must be a Zanzibarian
2. The holder of the right of occupancy shall have the right to make deposition of the land or
any other interest, there in to any Zanzibarian
3. The holder of the right of occupancy shall have an exclusive right of occupancy and use the
land which comprised his right.
4. That the interests be held in perpetuity without specific term and be inheritable under
appropriate. E.g;- Zanzibar law of Succession. S.8(4) and (4).

TERMINATION OF INTERESTS OF LAND

1- Revocation of an offer.
2- Surrender of land.
3- Abandonment of land.
4- Compulsory acquisition of land.

1- Revocation of an offer (annulment or canceling)

The president is empowered to revoke the right of occupancy mainly in the following

Section 45 of Land Act;-Liability to revocation for breach of condition

(1)Upon any breach of condition arose subjects to which any right of occupancy has been granted,
the right of occupancy shall become liable to be revoked by the President.

Reasons for revocation of an offer.

Section 45(2) of Land Act;-

The President shall not revoke a right of occupancy save for the good cause. In this subsection
"good cause" shall include the following–
(i)There has been an attempted disposition(way) of a right of occupancy to a non-citizen
contrary to this Act and any other law governing dispositions of a right of occupancy to a non-
citizen;
(ii)The land the subject of the right of occupancy has been abandoned for not less than two years;
(iii)Where the right of occupancy is of land of an area of not less than five hundred hectares, not
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BY DATIUCE DIDACE

less than eighty percent of that area of land has been unused for the purpose for which the right of
occupancy was granted for not less than five years;
(iv)There has been a disposition or an attempt at a disposition which does not comply with the
provisions of this Act;
(v)There has been a breach of a condition contained or implied in a certificate of occupancy;
(vi)There has been a breach of any regulation made under this Act.

Case;-
Rajabu Hassara v. Saraya Rashid (1983) TLR 111
Facts;-
The appellant was offered the right of occupancy was eventually revoked by the president for
alleged non compliance( failure to act in accordance with a wish or command) of the condition
stipulated in the right of occupancy in question. The crux(important point) of the appeal is whether
there had been “ a good cause” for the revocation of the right of occupancy following which the
said plot was relocated to the respondent.
Held;-
It was held that inter alia that non compliance with the condition stipulated in the right of
occupancy

Sarjit singh v. Sebastian christom (1988) TLR 24

Facts
The appellants right of occupancy was terminated and offered it to the respondent who was finally
issued the certificate of occupancy the plot . The appellant is appealing to the high court after being
dissatisfied by the judgment and decree of the resident magistrate court.
The appellant advocate argued the district land officer has no power in law to revoke a right of
occupancy duly granted. He added that the resident magistrate erred in law considering the
certificate of occupancy as constituting the right of occupancy itself. The land magistrate ought to
have held that the right of occupancy vested in the appellant immediately after he has accepted the
offer of the right of the right of the occupancy. The respondent advocate argued inter alia that tittled
to the land vests only when certificate is issued.
Held
1. A right of occupancy is created by approval the applicants application for the grant of the
same(right of occupancy) and acceptance by the applicant of the granted right.
2. The revocation by district land officer was of no effect as it was made by the someone who
had no power to revoke tittle of provided under section 10 of L.A cap 113.

2- Surrender of land(submit to their authority.)

Section 42 of Land Act, Power to surrender right of occupancy
1) An occupier of land under a right of occupancy may surrender the whole or a part of the land
comprised in that right of occupancy.

Reasons or circumstances for the Surrender of land.

Section 42(2) The Commissioner shall not accept any surrender of the whole or a part of any
occupied land unless the following circumstances apply–
(a) All rent, taxes and dues owned to the Government in respect of that land are fully paid up;
(b) The land will not create, cause or give rise to or a transfer of, any liability in contract, tort or
otherwise to the Government;
(c) The land is not subject to any subsisting mortgage, charge or encumbrance;
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BY DATIUCE DIDACE

(d) The land is not subject to any action in court by a lender to possess and sell the land;
(e) The land is not subject to any action by a trustee in bankruptcy on
behalf of creditors or is not otherwise subject to an order of
attachment by any court;
(f) The surrender is not designed to defeat the rights of a spouse to share in or obtain part of the
land;
(g) Every co-occupier and person or body having any interest in that land has consented in writing
to the surrender;
(h) The land is surrendered in consideration of natural love and affection.

(3) Where the Commissioner is satisfied that an application for the surrender of the whole or a part
of the land is due to hardship or poverty and by reason of that hardship or property, the applicant is
not able to pay any rent, taxes and other dues which he owes to the Government, the Commissioner
may remit the whole or a part of any monies which the applicant owes the Government.

3- Abandonment of land
The giving up of a thing absolutely, without reference to any particular person or purpose. For
example, vacating property with the intention of not returning, so that it may be appropriated by the
next comer or finder. The voluntary relinquishment of possession of a thing by its owner with the
intention of terminating ownership, but without vesting it in any other person. The relinquishing of
all title, possession, or claim, or a virtual, intentional throwing away of property.

According to Section 51 of Land Act, Abandonment of land held under a right of occupancy
(1)Land held for a right of occupancy shall be taken to have been abandoned where one or more of
the following factors are present–
(a) The occupier owes any rent, taxes or dues in respect of the land and has continued to owe such
rent, taxes or dues or any portion of them for not less than five years from the date on which any
rent, taxes or dues or any portion thereof first fell to be paid;
b)The occupier has left the country without making any arrangement for any person to be
responsible for the land and for ensuring that the conditions subject to which the right of occupancy
was granted are complied with and that occupier has not given any appropriate notification to the
Commissioner;
(c) Any building on the land has failed into a state of such disrepair that it has become a danger to
the health and safety of any person occupying that building for any lawful purpose or a neighbour to
the occupier;
(d)Persons with no apparent lawful title so to do are occupying or using the land or any buildings on
the land and one or more of those persons or a person from a community which contains one or
more such persons have so occupied or used the land or any building on the land for a period of not
less than two years immediately preceding the date on which in accordance with this section, the
Commissioner publishes a notice of abandonment in the Gazette;
(e) by reason of the neglect of the land, the land is–
(i) no longer capable, without significant expenditure and remedial work, of being used for
productive purposes; or
(ii) suffering serious environmental damage.

Case
Yusuph Tindibali v. Stephano. High Court 1985. 0661 E.A.

4- Compulsory acquisition of land.

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BY DATIUCE DIDACE

Is the power of government to acquire private rights in land without the willing consent of its owner
or occupant in order to benefit society. This power is often necessary for social and economic
development and the protection of the natural environment. Compulsory acquisition requires
finding the balance between the public need for land on the one hand, and the provision of land
tenure security and the protection of private property rights on the other hand.

Section 3 L.A.A
The President may subject to this provision of this Act acquire any land for any estate or term where
such land is required for any public purpose.

Reasons or circumstances or Purpose for compulsory land acquisition

The president may acquire the land only for the public purpose where it is required for any of the
following interests

Section 4 of Land Acquisition Act.

(1) (a) For exclusive Government use, for general public use, for any Government scheme, for the
development of agricultural land or for the provision of sites for industrial, agricultural or
commercial development, social services or housing;

(b) For or in connection with sanitary improvement of any kind, including reclamations;

(c) for or in connection with the laying out of any new city, municipality, township or minor
settlement or the extension or improvement of any existing city, municipality, township or minor
settlement;

(d) For or in connection with the development of any airfield, port or harbor;

(e) For or in connection with mining for minerals or oil;

(f) For use by the Community or a Corporation within the Community;

Relevant case
Mulbadaw Village Council and 67 Others vs. National Agricultural and Food Corporation
(1984) TLR.
Fact
The plaintiffs, a village council and 67 villagers of the same village sued the National Agricultural
and Food Corporation (NAFCO) for a large tract(area) of land in Hanang District, damages for
trespass and other related reliefs. National Agricultural and Food Corporation was given land by
district of Arusha region

ISSUES
8. Whether Act applies to the land belonging to peasants.

9. Whether land held under customary tenure falls under the definition of granted right of
occupancy

10. Whether authorities can grant a formal right of occupancy in respect of Land held under
customary tenure, i.e. deemed right of
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BY DATIUCE DIDACE

Held:

 The Mulbadaw Village council and Mulbadaw Villagers were lawfully possessing land and
they could only be deprived off their land by due operation of Law, not by mere blessings of
the government and party leaders in Hanang District and Arusha Region;
 The provisions of the Land Acquisition Act (No. 47 of 1967) were not followed in acquiring
land belonging to Mulbadaw Village Council and Mulbadaw Villagers and therefore such
acquisition was unlawful;
 Where someone is in lawful occupation of land no valid right of occupancy can be offered to
anyone else over the same land unless the provisions of the Land Acquisition Act (No. 47 of
1967) have been complied.

RIGHTS AND INCIDENTS (EVENTS) OF LAND OCCUPATION

RIGHTS OF LAND OCCUPATION

A) Rights to occupy land

Section 19 of L.A
(1)The rights to occupy land which a citizen, a group of two or more citizens whether formed
together in an association under this or any other law or not, a partnership or a corporate body, in
this Act called "right holders", may enjoy under this Act are hereby declared to be–
(a) a granted right of occupancy;
(b) a right derivative of a granted right of occupancy, in this Act called a derivative right.

B)Rights of Occupation of land by non-citizens

Section 20 L.A
(1) For avoidance of doubt, a non-citizen shall not be allocated or granted land unless it is for
investment purposes under the Tanzania Investment Act Cap. 38*.

*Creation of derivative right for non-citizen and their application.

Section 2 L.A
"derivative” is something which is based on another source.
“derivative right" means a right to occupy and use land created out of a right of occupancy and
includes a lease, a sub-lease, a license, a usufructuary right and any interest analogous to those
interests;

The application of derivative right is explained under

S.20(2) Land to be designated for investment purposes under subsection (1) of this section shall be
identified, gazetted and allocated to the Tanzania Investment Center which shall create derivative
rights to investors.

The Land Act defined non-citizen under the

S.20(4)For the purposes of this Act, any body corporate of whose majority shareholders or owners
are non-citizens shall be deemed to be non- citizens or foreign company's.

In-case of termination of derivative rights by non-citizens;-

S.20(5) At the expiry, termination or extinction of the right of occupancy or derivative right granted
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BY DATIUCE DIDACE

to a non-citizen or a foreign company, reversion of interests or rights in and over the land shall vest
in the Tanzania Investment Center or any other authority as the Minister may prescribe in the
"Gazette".

D)Rights of Ceiling (limitation) On Land Occupancy

According to S.21
(1)The Minister shall make regulations prescribed under Section 179 of this Act providing for an
area of land that a person can hold under single right of occupancy or derivative right or in any way
otherwise disposed of to any person or body corporate.

Factors for ceiling on land occupancy

1. Scarcity of land the number of ceiling can be low
2. Availability of land the number of ceiling can be higher
3. Land use, which depends on the needs of the user.
4. Development of land, where it needs ability of applicant of land for development of the
land.
5. Land location, E.g availability of land in town is different from availability of land in rulal.
And this is according to S.18 of village Act (2) The Minister shall make regulations prividing for an
area of land which a person can hold under a single right Of Occupancy or derivative right of
Occupancy or in any way otherwise disposed of to any person or body of persons.

INCIDENTS OF OCCUPANCY

S.22. Incidents of granted right of occupancy

(1)A granted right of occupancy shall be–
(a)granted by the President;
(b)in general or reserved land;
(c)of land which has been surveyed;
(d)required to be registered under the Land Registration Act Cap. 334*, to be valid and, subject to
the provisions of that law and this Act, indefeasible;
(e)for a period up to but not exceeding 99 years;
(f)at a premium;
(g)for an annual rent which may be revised from time to time;
(h)subject to any prescribed conditions;
(i)capable of being the subject of dispositions(character)
(j)liable, subject to the provisions of this Act, to revocation;
(k)liable, subject to the prompt payment of full compensation, to compulsory acquisition by the
state for public purposes.

EASEMENTS AND ANALOGOUS(EQUIVALENT) RIGHTS

*Meaning of Easement;- This is a right to cross or otherwise use someone else's land for a
specified purpose. Easement has been explained in;-

S.31 of Limitation Act cap 89

(1) Where any easement has been enjoyed peaceably and openly as of right, and without
interruption, for twenty years, the right to such easement shall be absolute and indefeasible.
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BY DATIUCE DIDACE

(2) "Easement" includes–

(a) the access and use of light or air to and from any building enjoyed with the building as an
easement;
(b) any way or water course, or the use of any water, enjoyed as an easement.

*The impacts or nature of the easement on the servient land.

According to S.144 of L.A Nature of easement

(1)Subject to the provisions of this Act or any other written law applicable to the use of land, the
rights capable of being created by an easement are–
(a) any right to do something over, under or upon the servient land; or
(b) any right that something should not be so done; or
(c) any right to require the occupier of servient land to do something over, under or upon that land;
(d) any right to graze stock on the servient land.

(2) The rights capable of being created by an easement do not include–

(a) any right to take and carry away anything from the servient land;
(b) any right to the exclusive possession of any land or any part of it.

(3) Except where an easement has been created for specific period of time which will terminate at a
fixed date in the future or on the happening of a specific event in the future or on the death of the
granter, the grantee or some other person named in the grant, an easement burdens the servient land
and runs with the land for the same period of time as the right of occupancy or lease held by the
granter who created that easement.

(4)Subject to the provisions of this Part an easement shall be capable of existing only during the
subsistence of the right of occupancy or lease out of which it was created.

*Terminology
S.145 of Land Act
(1)The land for the benefit of which any easement is created is in this Act referred to as the
"dominant land" and the land of the person by whom an easement is created is referred to as "the
servient land".
(2)An easement is, in this Act, in relation to the dominant land referred to as "benefiting" that land
and is, in relation to the servient land, referred to as "burdening that land".
(3) Subject to the provisions of this Part, an easement shall be capable of existing only during the
subsistence of the right of occupancy or lease out of which they were created.

*Modes of creating an easement

1- Express Easements
This is created by a deed or by a will. Thus, it must be in writing. An express easement can also be
created when the owner of a certain piece of property conveys the land to another, but saves or
reserves an easement in it. This arrangement is known as an "easement by reservation."

Types of Express Easement

A) Express grant- This is through the use of prescribed instrument to grant such an easement in
favor of another, thus under this mode, parties enter into express agreement by executing a deed
necessary for creating the easement.
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BY DATIUCE DIDACE

According to S.146 of L.A

(3) An instrument creating an easement shall specify clearly–
(a) the nature of the easement and any conditions, limitations, and restrictions subject to which it is
granted;
(b) the period of time for which it is granted;
(c) the land, or the particular part of it burdened by the easement;
(d) the land benefited by the easement, and shall, if so required by the Registrar, include a plan
sufficient to define the easement.

B) Express reservation- As opposed to express grant the owner of the servient doesn't actively
grant but reserves for himself in favor of a land retained by himself, the easement must be expressly
mentioned.

According to S.146 of L.A

(2) Any occupier referred to in subsection (1) or any lessor transferring, assigning or leasing land or
a lease may in the transfer, assignment or lease grant an easement for the benefit of the land
transferred, assigned or leased over land retained by him or reserve an easement for the benefit of
land retained by him.

2- Implied easement
This is when no document or agreement has created an express easement, an easement right may
still be understood (or "implied") by a situation or circumstances. To create an easement by
implication.
An easement created out of implication are of two form;-
1. Implied grant
2. Implied reservation

According to S.146 of L.A (4) Where a co-occupier, by any disposition, severs any building or part
of it or any land separated by a common dividing wall or other structure, then, whether that wall or
other structure is a party wall or other structure,there shall be implied in the disposition cross
easements of support of the dividing wall or other structure in respect of the severed buildings or
land and the occupiers of the severed buildings or land and their successors in title shall be entitled
to the benefit and subject to the burdens of the cross- easements.

The general rule

'No easement will be implied in favor of granter, if he wishes to reserve any easement he must do so
expressly'.

Exceptions of general rule

a) Easement of necessity
It must be absolutely necessary to attach the easement to that particular land for the use (not just
enjoyment) of particular property as it would not be possible to use the land without it. For instance
otherwise that land would be landlocked.

b) Intended easement
This easement arises if there is a common intention between the parties to use the property in a
particular way, in some definite and particular manor which is specific and not merely general.
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BY DATIUCE DIDACE

Cases
Nickerson v Barraclough ([1981] Ch 426, CA (Eng))

Facts
Concerned a plot of land that had formed part of a larger estate. The estate had been divided into a
number of plots (including that owned by the plaintiff). It was contemplated that the plots would be
used for building purposes. The plans prepared at the time of the sale in 1906 had shown the
intended line of the roads to be built to serve the development. The conveyance had, however,
expressly stated that the line of the roads might be changed.
Issues
The question was whether, despite this, there could be an easement of necessity. Does a finding that
there is no intention to create an easement (here based on the express intention not to create an
easement) prevent a successful claim to an easement of necessity? Or are easements of necessity
based on public policy (or is public policy an aid to construction so as to make it easier to find that
there is an easement of necessity)?
Held
No easements were granted over any part of the seller’s land until the roads had been completed.
The English Court of Appeal held that easements of necessity are based on intention. A clearly
expressed intention not to grant an easement prevents an easement of necessity from arising.

*Characteristic of easement

Re Ellenborough Park [1955] EWCA Civ 4

Facts
Ellenborough Park is located across the street from a row of houses. The person who owned the
land the park was on gave the builders of the houses "the full enjoyment at all times hereafter in
common pleasure of the ground" when he sold them the land to build the houses. The people who
now live in the houses are applying to have their right to use the park recognized as an easement.
The trial judge found that this did constitute an easement, which the owners of the land appealed.

Issues
What do you need to have in order for an easement to exist?

Held or Decision
Appeal dismissed, easement granted.

Reasons for the decision

Evershed, writing for a unanimous court, states that there are four things that must be present in
order for an easement to exist:
1. there must be a dominant and servient tenement;
2. an easement must "accommodate" the dominant tenant (the use of the land in question must
be "connected" to the use of the dominant land - merely adding to the property value is not
enough to satisfy this);
3. the dominant and servient owners must be different people; and
4. the right must be capable of being the subject matter of a grant.
◦ this is because easements cannot be passed by possession, because they do not
physically exist – they can only pass through grants
◦ the right must be a "right of utility and benefit", and not merely for recreation or
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BY DATIUCE DIDACE

amusement.

*Categories of easement

1. Public right of way

This is a public right which exercised by anyone, this is clearly reserved as easement.

According to Section 151

Power of Minister to create public rights of way
(1)The Minister may, subject to and in accordance with sections 152 and 153 create rights of way
which shall be known as public rights of way.
(2)A public right of way may be–
(a) a right of way created for the benefit of the Government, a local authority, a public authority or
any corporate body to enable all such organizations, authorities and bodies to such organizations,
authorities and bodies to carry out its functions, referred to in this Act as a wayleave; or
(b) a right of way created for the benefit of the public, referred to in this Act as a communal right of
way.
(3) A public right of way shall attach to and run with the servient land in respect of which it has
been created and shall be binding on all occupiers from time to time of the servient land, any
manner they are occupying the land, whether under a right of occupancy or a derivative right
thereof, or under customary law or as a successor in title to any such occupier or as a trespasser.

2. Way leave
This is used for particular purpose and for public or access to property granted by a landowner for
payment, for example to allow a contractor access to a building site. Or a right given to particular
organization or institution e.g;- Army's road which is authorized for army.

According to Section 151

(4) A wayleave shall authorize persons in the employment of or who are acting as agents of or
contractors for any of the organizations, authorities and bodies to enter on the servient land for the
purpose of executing works, building and maintaining installations and structures and insetting all
such works, installations and structures on the servient land and to pass and repass along that
wayleave in connection with purposes of those organisations, authorities or bodies.

3. Communal right of way

This is given to a certain community and provides right of such community.

According to Section 151

(5) A communal right of way created for the benefit of the public shall entitle the public to pass and
repass along that right of way and in areas designated for that purpose, to undertake recreational
activities of the kind permitted in that designated area.

Powers of Registrar with respect to public right of way

According to Section 155
(1)Where the Minister has made an order to create a public right of way, the Commissioner shall
cause to be delivered to the Registrar all the necessary documents, plans, demarcations and surveys
of the route of that public right of way to enable the Registrar to exercise his powers under this
section.
(2) On receipt of the information referred to in subsection (1), the Registrar shall, after the expiry
 LAND LAW
BY DATIUCE DIDACE

of the time allowed in subsection (6) of section 144 to appeal against the order of the Minister, take
any action which he may consider necessary and desirable or which may be prescribed–
(a) to cause to be recorded, using such forms as may be prescribed, the route of the public right of
way on any certificate of occupancy or other document of title held in any office of the land registry
having reference to land over which the public right of way has been created; and
(b) to cause to be delivered to him all certificates of occupancy having reference to land over which
the public right of way has been created held by–
(i) persons occupying such land under such right of occupancy; or
(ii) any lender of money secured by a mortgage or lien who is holding that certificate of occupancy
as part of the security for that loan, so as to amend that certificate of occupancy by recording the
route of the public right of way on that certificate of occupancy.

MORTGAGE

According to Section 58 of Transfer of property decree cap 150

(1)Mortgage is the transfer of an interest in a specific immovable property for the purpose of
securing the payment of money advanced or to be advanced by way of loan, an existing or future
debt, or the performance of an engagement which may give rise to pecuniary(financial) liability.

HISTORY OR BACKGROUND OF MORTGAGE

The law of mortgage has got very long history.

In ancient system the law of mortgage was same as pledge(promise), a property being a
gage(valued object) which is forfeited on default payment. This stage was affected by transaction
of either by delivery of possession or condition conveyance.

In Roman law the earlier type of security

First stage was fiduciary, In case of failure to pay the amount the land will be forfeited(penalty).
Second stage- Pignus is a pledge or pawn arising where a creditor has to transfer not ownership but
of possession without liability of being forfeited.
The last stage was Hypoesthesia which is the form of pledge without delivery of possession, but
the creditor has been given a power to sell the land.

In common law origin of mortgage was rather than pledge then mortgage transfer was not title but
possession. When creditor took profit of discharge with both principal and interest the transaction
will serve to be vivum vadium.
Vivum vadium or living pledge is a sort of pledge which is not actually a mortgage. VIVUM
VADIUM, or living pledge, contracts. is when a man borrows a sum of money (suppose two
hundred dollars) of another, and grants him an estate, as of twenty dollars per annum, to hold till the
rents and profits shall repay the sum so borrowed.
Mortuum vadium - a mortgage agreement in early English law that gave possession of the
mortgaged land and the use of its rents and profits to the mortgagee until such time as the mortgage
was paid.

Principles of Mortgage
After the common law mortgage was modified by three major principles;-
1. Equity looks at the essence(nature) of transaction which is borrowing transaction. This is
where by you don't have money but you have a land, so the bank can give or lend you
 LAND LAW
BY DATIUCE DIDACE

money and the land remains as a security.

2. A borrower needs protection, the borrower needs money and is a weak person thats why
he needs protection, and the weaker person will not be penalized.
3. The condition of forfeiture, in default of payment on the due date is penalty, so isn't
allowed

In the case of NBC v. Dar es salaam Education and office statuonery.(1995)

Facts
The respondent borrowed money from the appellant bank, Upon failure to pay the appellant
exercised his right under mortgage -deed and sold the house, after the sale of the house brought a
suit before the court of law on the next day.
The civil procedure code for order of temporary injunction restrain the NBC from transferring the
title of the house and preventing eviction of tenants therefrom.
Held
The judge who heard the application issued an order that the sale of the of the house should be set
aside, and that NBc and registrar of be restrained from transferring the title to the house and further
prevented eviction of the tenants.
Where a mortgagee is exercising its power of sale under a mortgage-deed, the court can not
interferer unless there was corruption or collusion with the purchaser in the sale of property.

MORTGAGE TERMINOLOGIES
Section 58(2) of Transfer of property decree cap 150
Mortgagor- The transferor (Land owner)
Mortgagee- The creditor (The boss)
Mortgage-money- Is a principle of money and interest of which payment is secured at being time.
Mortgage-deed- Is an instrument by which transfer is effected.

CHARACTERISTICS OF MORTGAGE
1. Mortgage property is served as security, that means is there waiting for time to be paid. It is
governed by a principle that 'Once mortgage always mortgage'
2. Mortgage shall always remain mortgage as intended by the parties.
3. Redemption(payment). The right to redeem shall always be there until the payment of
money is fulfilled. The creditor has the right to apply for closure of that property in default
of payment.
4. There must be limitation, that means within 12 years if the bank did not seek for closure the
debt will be closed also. S.3(1) Limitation Act.

In the case of Malekela mahita v. Kibuwi Nzengwa(1989)

Facts
In a suit before trial primary court to redeem a mortgage purportedly(claimed) enter into more than
70 years ago, the appellant succeeded on appeal by the respondent, the district court found that there
had been no mortgage arrangement as contended by the appellant and that even if there had been
one period for redeeming it had lapsed.
According to the primary court decision was reversed. The High court on further appeal found that
there was mortgage but its redemption was hopelessly barred by limitation.
Held
A suit to redeem the land in possession of mortgage must be brought within 12 years as prescribed
 LAND LAW
BY DATIUCE DIDACE

under Law of limitation Act S.3(1)

TYPES OF MORTGAGE

1.Simple Mortgage
According to Section 58(3) of Transfer of property Act
Where, without delivering possession of the mortgaged property, the mortgagor binds himself
personally to pay the mortgage-money, and agrees, expressly or impliedly that in the event of his
failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged
property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of
the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple
mortgagee.

There are two to be considered in this Section

1. No delivery of possession
2. In case of default payment the mortgagee shall sell the property

2. Mortgage by condition of sale

According to Section 58(4) of Transfer of property Act
Where, the mortgagor ostensibly sells the mortgaged property-
i. On condition that on default of payment of the mortgage-money on a certain date the sale
shall become absolute, or;
ii. On condition that on such payment being made the sale shall become void, or ;
iii. On condition that on such payment being made the buyer shall transfer the property to the
seller,
The transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by
conditional sale:
PROVIDED that no such transaction shall be deemed to be a mortgage, unless the condition is
embodied in the document, which effects or purports to effect the sale.

This means It shall stand to be mortgage until that date and after that date thats where the sale is
going to be absolutely.

3. Usufructuary Mortgage

Usufruct is a limited real right (or in rem right) found in civil-law and mixed jurisdictions that
unites the two property interests of usus and fructus:
 Usus (user) is the right to use or enjoy a thing possessed, directly and without
altering(modify) it.
 Fructus (fruit, in a figurative sense) is the right to derive profit from a thing possessed: for
instance, by selling crops, leasing immovables or annexed movables, taxing for entry, and so
on.

According to Section 58(5) of Transfer of property Act

Where the mortgagor delivers possession, or expressly or by implication binds himself to deliver
possession of the mortgaged property to the mortgagee and authorizes him to retain such possession
until payment of the mortgage money, and to receive the rents and profits accruing from the
property or any part of such rents and profits and to appropriate the same in lieu of interest or partly
in payment of the mortgage money, partly in lieu of interest and partly in payment of the mortgage
 LAND LAW
BY DATIUCE DIDACE

money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary
mortgagee.

There are three things to be considered

1. Delivery of possession
2. Retain possession
3. Receives rents and profits

4.English Mortgage
According to Section 58(6) of Transfer of property Act
Where the mortgagor binds himself to repay the mortgage money on a certain date, and transfers the
mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to
the mortgagor upon payment of the mortgage money as agreed, the transaction is called an English
mortgage.

There are two things to considered here;-

1. Transfer of property to mortgagee absolutely
2. With the condition of redeem.

5. Anomalous Mortgage
A mortgage which is not a simple mortgage, a mortgage by conditional sale, an usufructuary
mortgage, an English mortgage or a mortgage by deposit of title deeds within the meaning of
section 58 is called an anomalous mortgage.

RESTRICTION OF THE USE OF LAND

A number of restrictions on land are a result of actions by government units. Many

restrictions, however, are created by land developers. Such devices take several forms and can
be either positive or negative in nature. They include defeasible fees, EASEMENTS, equitable
servitudes, and restrictive covenants.
Defeasible Fees In defeasible fee estates, the grantor gives land to the grantee, subject to certain
conditions. For example, A might convey a parcel of land to B, provided that it be used for school
purposes. The effect of the defeasible fee is that it restricts the use of the property by the possessor.
Failure to observe the conditions causes the property to revert to the grantor. Estates of this type are
no longer favored in most jurisdictions, because they make the transfer of land cumbersome and do
not take into account unforeseen situations. The limited scope of defeasible fees makes them of
limited value.
Easements Easements are rights to use the property of another for particular purposes. A common
type of easement in current use is the affirmative grant to a telephone company to run its line across
the property of a private landowner. Easements also are now used for public objectives, such as the
preservation of open space and conservation. For example, an easement might preclude someone
from building on a parcel of land, which leaves the property open and thereby preserves a park for
the public as a whole.
 LAND LAW
BY DATIUCE DIDACE

Equitable Servitudes Equitable servitudes are land-use restrictions enforceable in a court of

Equity. They are created by the language of the promise in the form of a Covenant (agreement)
between two individuals. For example, suppose A owns a parcel of land on the edge of a city that A
subdivides the parcel into ten lots, numbered 1 to 10. A then records a declaration of restrictions,
limiting each of the ten lots to use solely for family dwelling, providing that only a single-family
house may be built on each lot. A sells the lots to ten people, and each deed contains a reference to
the declaration of restrictions by record book and page number, coupled with a provision that the
person purchasing the lot and all successive purchasers of the lot are bound by the restrictions.
Restrictive Covenants Restrictive covenants are provisions in a deed limiting the use of the
property and prohibiting certain uses. They are similar in effect to equitable servitudes, but
restrictive covenants run with the land because the restrictions are contained in the deed. Restrictive
covenants are typically used by land developers to establish minimum house sizes, setback lines,
and aesthetic requirements thought to enhance the neighborhood. The legal differences between
equitable servitudes and restrictive covenants are less important today, as courts have merged the
terms into one general concept.

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