Scanned with CamScannerScanned with CamScanner—? PROGOLOMENA | ‘of Us- even the truly homeless live somewhere, and each therefore stands 19 " Some relation to land as owner, occupier, tenant, licensee or squatter. Yet it cannot be gain said that the question of land, especially as it relates to its distribution, division, transfer and generally to its administration and management still remains highly very contentious even in the post-independence era. It in this view that the study that underpins conveyancing in Tanzania becomes imperative not only to Ardhi University students but also to the ordinary Tanzanian who is constantly vexed by the question of land. Yet again anyone desirous of grasping the principles of land law and conveyancing in Tanzania is faced with myriad challenges, first, land law and conveyancing in Tanzania is a function of historical evolution premised on medieval English law of property which in itself dates back to the Norman invasion in 1066. To therefore understand land law and conveyancing, one must seek to demystify its historical foundations. Secondly, principles of land law and conveyancing in Tanzania are enshrined in a complex web of legal framework. There are more than fifty statutes that in one way or another Thus, the Manual seeks, amongst others, to address these issues. It aims at giving the Ardhi University students a succinct understanding of conveyancing in Tanzania, a thorough grasp of the legal framework and a simplified concise exposition of the i processes and formalities that precedes the legal transfer of land from one person to doubt, Principles of land law and conveyancing in Tanzania has greatly been case law. In this regard, so as give the reader a jurisprudential analysis of Manual is rich in case law. Noteworthy, reference has been made to The dicta of these judgments, some of which have been point out our courts’ efforts to build and enrich the ng ) in Tanzania. This Manual should be supplement to Scanned with CamScannerTABLE OF CONTENTS CHAPTER ONE ne } 1.0 Introduction to Conveyancing, 1.1. Conveyancing defined.. 1.2. The Relationship between Conveyancing and Other Laws, 1.3 The Concept of Property... 1.4 Ownership, Possession and Title.... CHAPTER TWO 2.0 Categories of Conveyancing.... 2.1, Registered and Unregistered title in tanzania.. 2.3.Registration... 2.3.1Mirror Principle. 2.3.2 Curtain Principle 2.3.3 Insurance Principle.. 2.3.4 Case Law Analysis .... CHAPTER THREE 3.0 Granted Right of Occupancy... Scanned with CamScannerScanned with CamScannerScanned with CamScannerCHAPTER ONE 1.0 INTRODUCTION TO CONVEYANCING 1.1 Conveyancing defined. Conveyancing is generally understood as the transfer of estates and inter by legal process. Hence Abbey Robert and Richards Mark rightly consider conveyancing as ‘the process by which legal title to property is transferred.” According to the Black's Law Dictionary conveyancing is the act of or business of drafting and preparing legal instruments, especially those (such as deeds or leases) rests in land that transfer an interest in real property. 1.2 The Relationship between Conveyancing and Other Laws jpon three particular stanchions; Conveyancing is a second level subject that rests ul that of land law, contract law, and equity and trusts. As regards land law, it (land law) details the estates and interests that will form the subject matter of all soteretlaus & Conveyancing transactions and, therefore, without an understanding of land law, it is eae difficult to grasp conveyancing both in theory and practice. Indeed, according to B. ee Walker, ‘you can study land law without conveyancing, but not conveyancing without geno) land law’. Consequently, one intending to study and practice conveyancing must carry knowledge of land law to the point when it will be possible for him to embark with profit on a study of conveyancing. On a third front, the link between conveyancing and equity and trusts is anchored on the fundamental distinction of interests in land as either being legal or equitable. This distinction largely defines the transfer of title or interests in land and the rights and obligations that flow therefrom. 1.3 The Concept of Property The concept of property is not one that easily renders itself to conceptualization especially in the legal realm. To non-lawyers, property is the thing which is owned. This usage, according to K.J. Gray and P.D. Symes, whilst being harmless enough in day to- day speech, it does obscure certain salient features of property as a legal phenomenon, for, semantically, property is the condition of being ‘proper’ to (or belonging to) a particular person. Thus, originally, property was the relationship Scanned with CamScannerCHAPTE! 1.0 INTRODUCTION To Ron canta! 1.1 Conveyancing defined. Conveyancing is generally understood as the transfer of estates and interests in land by legal process. Hence Abbey Robert and Richards Mark rightly consider Conveyancing as ‘the process by which legal title to property is transferred.” According to the Black's Law Dictionary conveyancing is the act of or business of drafting and preparing legal instruments, especially those (such as deeds or leases) that transfer an interest in real property. 1.2 The Relationship between Conveyancing and Other Laws Conveyancing is a second level subject that rests upon three particular stanchions; that of land law, contract law, and equity and trusts. As regards land law, it (land Betec tom ces the estates and interests that will form the subject matter a a Actin Conveyancing transactions and, therefore, without an understanding of land law, it is ‘Sevidian’ difficult to grasp conveyancing both in theory and practice. Indeed, according to B. © Walker, ‘you can study land law without conveyancing, but not conveyancing without oienhi> land law’, Consequently, one intending to study and practice conveyancing must carry knowledge of land law to the point when it will be possible for him to embark with profit on a study of conveyancing. On a third front, the link between conveyancing and equity and trusts is anchored on the fundamental distinction of interests in land as either being legal or equitable. This distinction largely defines the transfer of title or interests in land and the rights and obligations that flow therefrom. 1.3 The Concept of Property ; concept of property is not one that easily renders itself to conceptualization in the legal realm. To non-lawyers, property is the thing which is owned. >, according to K.J. Gray and P.D. Symes, whilst being harmless enough in Scanned with CamScanneree "between the thing (or “object Da to the definition of ‘property nd the person (or ‘subject’) which provided the key To the contrary, in legal = prevailing betwee; ae ?Pective, property is the network of legal relationships the bundle of ee in respect of things. In the lawyer's eyes, ‘property’ IS Object of this appears to give interested parties a chance to attend, observe and ipate in the bidding and to seek an injunction against the sale in case any thing en done in an improper way. Failure to notify the mortgager I€ ees does not render the sale void, ors ties of the Seller e is given the power of sale to realize his or her security in ‘once the power of sale has accrued, the mortgagee | er benefit at the time of his choice. A number of cas Scanned with CamScanneral Finance Co. Ltd In the case of Cuckmere Brick Co. Ltd v wo aie (1971)Ch.949 the mortgage property was allegedly sold bel colt , i mol a badly attended auction. In an action for damages against the aa ad ; ircumstances it t the sale in the circums for the mortgager submitted that mortgager’s property. Justice salmon stated that tl MCL oo, speculate as to the most appropriate time to sell. That it i lize hi a higher price could be obtained. The mortgagee has the right to realize his he mortgagee has no duty to waiting, security by turning it into money when he likes. s emedies of Equitable Mortgagees mae available to 3 equitable mortgagee may as well be similar to ese available to a legal mortgagee. The only difference is that the equitable mortgagee can only realise his remedies upon a court order. And the remedies available are discretionary. In the case of Barclay’s bank co. Itd v North Cote and Another 1467 of 1974 (unreported)Senkandi J. observed that while sec. 138 of the RTA(Uganda) provides for creation of equitable mortgagees by deposit of title deeds as security, neither the RTA nor the Mortgage Act make provision for the remedies available to an equitable mortgagee. Accordingly, his honor felt compelled to look elsewhere for such remedies. The issue has been covered in the case of Barclays bank v Gulu millers Itd (1959) EA 540 where it was held that it would appear that the difference between an equitable mortgage and a legal mortgage as regards mortgagees is that whereas a legal mortgagee may realize his security under the mortgager by exercising most of the statutory powers conferred upon him without recourse to the courts, an equitable mortgagee must of necessity apply to the court for exercise of any of these Powers, Justice Sekandi further stated that the appropriate procedure to follow for an equitable mortgagee seeking to realize his security was in the first instance to sue the mortgager and obtain an order for an account of the outstanding mortgage debt, then he should seek a declaration that he is entitled to a charge on the land Comprised in the certificate of title referred to in the memorandum of deposit to eiareetaeiecareretnaetinertagen an application pursuing any or all the he a the ae earty.by Mortgage act. 25 Scanned with CamScannerq “Gquity’s Protection of the mM, ‘s protection of the me er x = lortgager is summed up in the maxim, nce eed ier = The test for a mortgage is substance and not form ie Ree ie - a transaction is @ mortgage or some other transaction, Te I5 3 ae mn joe * and not form. As such if parties enter into a contract of ee | ich is in ich essence mortgage equity will regard it as mortgage and all the quence of a mortgage will follow. no of days on the Equity of Redemption ‘gris means that the court will not permit any attempt by theme mortgager’s right to redeem his property. the cose of Samuel V Jarrah timber and wood paving corporation (2908 324 it was clearly stated that: rigagee to exclude between a mortgager the mortgager invalid and sgnce a Mortgage always a mortgage means that no contract 4 a mortgagee made at the time of creation of a mortgage prevents getting back his security. Any bargain which has that effect is | consistent with transaction of a mortgage”. ty’s intervention is premised on the fact that mortgagers are usually in a dire ‘of money who may willingly accept whatever terms creditors may impact inst them e.g. In the case of Matambulire V YozefuKimera CA 37 of 1972 eported) the plaintiff, in desperation to go on pilgrimage to Mecca mortgaged land to the defendant on condition that if the plaintiff failed to pay the loan within ified period, the defendant would become the absolute owner of the land. the contractual date of payment had expired the defendant claimed ownership land and rejected the plaintiff's subsequent attempt to redeem the same. It that the plaintiff was entitled to redeem his land until his right to do so was d by a court order or the land was disposed of in a mortgage sale. 2 of GA Investments property Ltd v Standard insurance Co. Itd AR 264 it was stated that a clause in a mortgage agreement that gives a n option to purchase the mortgaged property is a clog because it Scanned with CamScannerCHAPTER FOUR DISPOSITIONS AFFECTING LAND ion that can affect land. It provides 4.0. Introduction ind dispositi and discusses the This chapter deals with covenants a! the covenants that run with the land and as benefits and burdens, essential requirements for effective dispositions. Land may be disposed of in a variety of ways. The Land Act provides for rules that regulate dispositions of land (other than village land) in Tanzania. This discussion focuses on dispositions that affects land or relates to land in Tanzania Mainland. According to section 2 of the Land Act disposition means any Si transfer, grant, partition, lease, assignment, surrender, or disclaimer and include the her servitude or any other interest creation of an easement, a usufructuary right or ot! any other act by an occupier of a right of in a right of occupancy or a lease and ‘occupancy over that right of right of occupancy or under a lease whereby his rights over that right of occupancy or lease are affected and an agreement to undertake ale, exchange, any of the dispositions so defined. anism under which land or interest Thus disposition include any of the forms or mechi in land can change hands (e.g between the occupier and any interested party). Part VIII of the Land Act deals with dispositions affecting land. According to section 61 no disposition other than customary right of occupancy can be carried out without ‘complying with the provisions of the Land Act. These dispositions include lease, mortgage, and right of occupancy. Any such disposition carried out outside the provisions of the law shall be ineffectual to create, ‘extinguish, transfer, vary or affect any interest in land i.e right of occupancy, lease or mortgage. Apart from the use of the word ineffectual it is interesting to note that in ‘some other provisions of the Land Act the words void and inoperative have been employed.Section 36(1) b ,37 (8) (9). Despite this view it is somehow confusing as section 36(1)(b) consider all dispositions which do not comply with the requirements of sections 37,38,39 and 40 as void while section 61 (1) generally consider any disposition which does not comply with the provisions of the Land Act as ineffectual to create or transfer an interest ina latter requirement goes hand in hand with the need for registration under 27 > Scanned with CamScannersecon 62(2) of the Land Act. t would therefore appear tat wile section (10) 'S specie to certain pected scenarios, ection 61(1) is a general provision which apply to all dispositions, Thusifadispeston only comply with section 36 without complying with section 62 it will be ineffectual but emphasize on compliance with section 61 will automatically heed the requirements of section 36 as well because it is part of the overall requirements for effective disposition. 4.1 Qualities of Effective Dispositions In order for the stated disposition to be effective it must meet certain requirements: re ( Must be undertaken on the prescribed forms specified for such disposition. Rt 6 Must be registered under the relevant law unless exempted ie contract for 3 disposition under the Act. €2(2) Must be executed through signing it or affiing thumbprint or other mark as personal evidence of his acceptance’ save for organizations which may follow what thelr constitution provides or otherwise, and Cf. 62() Must be in writing. For contracts of disposition of a right of occupancy, derivative right or mortgage, the contract has to be in writing or there has to be a written memorandum of its terms (evidence in writing), Sections 62 (1) and 64(2) of the Land Act. Section 62 (2) (3) and (4) section 63 a However, writing is not a pre-requisite in Short term lease, Disposition by order of a court, and Disposition by operation of law. Likewise the requirement for writing does affect; (i) creation or operation of a resulting implied or constructive trust, (ii) the making or operation of a will, or (ili) an arrangement recognized by customary law for temporary disposition of customary interest in land. Freedom of Disposition and Public Policy ry rigors inherent in conveyancing legislations are often the function of the to strike a balance between the freedom of disposition and public policy. Like of contract, property law rests upon the doctrines of sanctity and freedom of ‘As such, it works on the premise that there is private autonomy in property this means that individuals are viewed as having the Scanned with CamScanner ns. In a nutshell,Jations, which power is a fundamental ‘one of the consequences of having a s a power to effect changes in the nd the thing in which he has the hat necessarily imports a an efficient system of power to effect changes in their legal rel incident of having property. Accordingly, property right is that the holder of that right has legal relationship constituted between himself at proprietary right. It js this aspect of private autonomy tl sense of freedom of disposition. This autonomy is crucial to property distribution. In this respect one author writes: ‘if in a pure liberal market society, the market is to carry ‘out its function of various uses, property must be freely alienable. This allocation of resources amongst seems to require a system ‘of property law design disposition.” ed to sustain freedom of ised in consideration of public .sfer of property rights. This the private acts of However, the freedom of disposition must be exerci: policy. The state, therefore, plays a role in regulating tran: role stems from the notion that there is a strong public interest in individuals who attempt to dispose of their property to others. One may question why there is such a public interest in private acts dealing with acquisition and transfer of property rights. Sukhinder Panesar aptly provides the answer: ‘On a theoretical level analysis, the state interest in private property transactions may be justified by the desire to achieve wider social and economic goals. Property is an important means of liberty and survival; without any property there is no liberty or ‘security. Property is also a fundamental vehicle through which commerce and Sea is generated. The state therefore has a strong interest in seeing is distributed in a manner that maintains liberty and security but at the Scanned with CamScannermortgages and charges are strictly regulated especially when the mortgagee/chargee intends to exercise his statutory power of sale. In essence, disposition of land must be preceded by compliance with statutory requirements in order to give legal validity to a particular property right, which Is elther being transferred or is being created out of a larger proprietary right, The formalities are dependant upon the nature of conveyancing. It Is thus prudent that land disposition the categories of conveyancing is elaborated before the formalities ofl are looked into. 4.3 General Formalities of Disposition in Land - dispositions in land are constrained by a number of formalities As was seen above, % rules in the context of that must be satisfied. Traditional justifications for formality real property are said to protect original parties making a disposition of ownership or an interest in land. Unike personal property, real property has the characteristic of durability, land is said to be permanent and thus rights created therein have 2 degree of permanence and stabilty. In this respect a property transaction involving land is treated as more important than any other. type of property transaction. The second reason for formality rules in real property law is that they protect third parties. An efficient system of conveyancing is dependent on the ability of third parties to establish exactly what they are purchasing, what interests already exist in the land and how that land is restricted in its use in the future. Dispositions in land are normally conducted in two stages. The First stage entails contract for the sale of land and the second stage involves completion of the contract. The latter stage is commonly referred to as the “conveyance stage” for it is at this stage that the transfer of the interest in land is effected. In a nutshell, when the preliminary negotiations between the prospective vendor and the purchaser have taken place, the parties enter into a formal contract to execute in favour of the ser a conveyance of the legal estate in the land to be sold. ract for the sale of Land Stage extent, a contract for the sale of an estate in land is just like any other must comply with the basic requirements for a contract not under a seal: be an offer and an acceptance, there must be consideration, and the ell Scanned with CamScanner 30i ‘i fies must also be of Parties must have intended to create a legal relationship. The partie Contractual capacity. , contract for the sale of land must strictly be in writing section 61 of the Land Act No The insistence on written documents such as contracts (and a deed of conveyance) protects the original parties from ill-thought transactions bes they may regret later on, Third parties are also protected. In view of the above, section 61 of the Land Act explicitly states that a memorandum of a disposition in land must in writing. 4.5 Completion of the Contract/Conveyancing Stage Having prepared a valid contract for the sale of land, the next step in land disposition is the process of transferring the interest or estate in that land to the purchaser. This is the completion of the contract or the conveyancing stage. The conveyancing process entails but is not limited to the following: ~ Investigation of title to land. ~ Searches to establish the legal ownership of land and the presence or absence of encumbrances. - Preparation of Conveyancing documents, approving and engrossing them. Engrossing refers to the making of final fair copies of a conveyance/document. Usually after engrossing, the document is known as an engrossment. ~ Execution, attestation and verification of the said documents, ~ Registration of the said documents to transfer either ownership or security or even discharge an interest, ‘The above procedures are not necessarily chronolo undertake a number of steps simultaneously as conveyancing may allow. 4.6.Disposition requirement Generally, as noted the disposition of a ri of the commissioner or an authorized offi gical and one may always the circumstances of the ight of occupancy does not require consent -@ Contract for the disposition of land, ck oF Fequired consent, 1s inoperative, that is, 31 E Be. Bis Scanned with CamScanner otherwise is proper but for the |unenforceable to the extent that such enforcement is prejudicial to the interests of the paramount landlord. However, where such enforcement is not thus prejudicial, a party who has performed his or her part of the bargain may be assisted by oe enforce the contract against the defaulting party. So a party who defaults to submit a written contract for consent or refusal by the specified authority may be compelled to do so if the other party has performed his or her part ‘of the bargain. Of course where such consent is sought and is refused, the contract becomes wholly unenforceable, though valid, and any expenses incurred by the parties may be recovered by legal action, if necessary.” 4.7 Dispositions which Require Approval Assignment of a right of occupancy which was granted to the assignor less than three years before the proposed assignment is to take effect, a Joan granted on the security of every mortgage of a right of occupancy or mortgage of a lease, partition of land granted under a right of occupancy, creation of an easement, transfer, sale, grant and surrender. It is worthy noting that the term disposition has been defined Under the Act to include sale and assignment. In most cases the terms assignment and transfer have also been used to imply inter alla sale of land/interest in land. According to section 37 (1) and (2) disposition of a right of occupancy does not require consent. Therefore, if the words assignment and transfer under Regulation a quoted above were not intended to include sale which would seem to be the case it would be that sale requires approval of the commissioner in order to take effect and not a mere notification. It will therefore mean that it is only the other forms of i disposition, or those of the nature stated under Regulation 4(2) that will no require h approval. jitions which do not require Approval issignment of a right of occupancy which was granted to the assignor three years before the proposed assignment is to take effect, a mortgage of a right of ‘or mortgage of a lease by a prescribed lender, a sale of mortgaged land ed lease by a mortgagee in the exercise of the power of sale under 1 a lease of a mortgaged land or mortgaged lease by a mortgagee in the 32 Scanned with CamScanner€xercise of power of lease under section 128 of the Act, a lease, an exchange, a Grant of usufructuary, a disclaimer. 42GN 74 2001, Regulation Where approval is required it is upon the parties to apply for such approval in the prescribed forms and signed by the parties. The application must also be accompanied by certificate of occupancy or letter of offer three sets of deeds of disposition and evidence of payment of all rent, taxes, and other dues to the government in respect of the land.Consequently, in relation to a right of occupancy sale means a transfer of an interest in or over land on conditions attached to the granted right of occupancy. There is no requirement for approval at all for assignment of a right of occupancy or mortgage by a prescribed lender (mortgagee). What is required is a notification to the commissioner.The Commissioner will endorse the notification with his signature and official seal and deliver a copy to the Registrar Of Titles to make entry on the register. The only disposition requiring approval is an assignment/transfer of a right of occupancy within 3years from its grant. The idea is to find out about compliance with development conditions and avoid land speculation.These category of dispositions have elaborate procedures for approval namely (i) application in a prescribed form (ii) determination by the commissioner followed by certificate of approval which has to be is copied to the Registrar. 4.8 Ingredients of a Good Registration System From the above discussion on the aims and systems of registration, it is possible to deduce the factors that make a registration system desirable. These factors may be summarized in a four-fold scheme as follows: A. Accuracy- a good registration system must be accurate and reliable. In most Circumstances, this is achieved through effective survey. As such, in an effective registration system, there is as a Pre-requisite survey followed by boundary placement, which may be either general or fixed boundaries. State indemnity, guaranteed Sections 24 RTA and 39 RLA(Kenya) amounts to a recognition of the accuracy the registration ought to achieve. This ingredient dispenses with unnecessary title investigation. 33 Scanned with CamScannersystem must be simple to understand and grasp- and RTA insist on Conveyancing being done in simple stration and preparation of documents should not be within the reach of the average landowner. out full-scale registration and to enlist the cooperation of land registries is a must. The more the registries are e more the landowners will endeavour to register for numerous land registries scattered all over the to note that though attempts have been made to system reflects the above-mentioned principles be achieved. Numerous problems are evident in the of a majority of landowners; high costs in the of skilled and efficient manpower. Scanned with CamScannerREFERENCES {/MEGARRY’S Manual of the Law of Real Property, Sixth Edition, Steve , Steve London, 1982 at 4 2.Bum, Cheshire & Burnt.; Modern Law of Real Property 15th (Ed) (1 yy Butterworths at 141 3,Onalo P, Land Law and Conveyancing in Kenya, Heinemann Law & ef (1986) aumbbey R & Richards M, A Practical press Ltd., London, 200, p. 1 s,Bryan A. G (ed), BLACKS LAW DICTIONARY, (8th ed), Thomson | Approach to Conveyancing, (3 6.Walker B., Conveyancing, (2nd ed), Blackstone Press Ltd., Londy a WMramba S, Manual on Land Law and Conveyancing in 9: Principle and Practice in Kenya. 7.Teng 8,0jienda T, Conveyancin ~ ie. Scanned with CamScanner