MZUMBE UNIVERSITY

MBEYA CAMPUS COLLEGE

DEPARTMENT OF LEGAL STUDIES

COURSE : LLB II

SUBJECT CODE : LAW 221

SUBJECT : LAND LAW II

LECTURER NAME : DR. LAURENT AGOLA

NATURE OF ASSIGNMENT : INDIVIDUAL ASSIGNIMENT

JULIUS LUCIAN KOMBA 2631018/T.22

ADRIA M. MUSHI 2631208/T.22
MERINA J. ABEL 2631072/T.22

QUESTION

Critically discuss the extent of the rights of a holder of a right of occupancy under joint
occupancy.
 WORK OUTLINE

INTRODUCTION

Herein we have begun with the explanation of some concepts in co-occupancy like;

 Co-occupancy as recognized under Section 159 (1) of the Land Act [CAP 113 RE 2019]
 Occupancy in common as hold of land in undivided shares, under the occupancy in
common the document must indicate the shares of each occupier as per section 159(3) (b)
of the Land Act [CAP 113 RE 2019]
 Joint occupancy
 Grey Area in Joint Tenancy Process and Practice
 We opine and strongly recommend on Payment of Capital Gain Tax that there should be
a prescribed form to this effect.

MAIN BODY

Herein also, we have scrutinized the extent of the rights of a holder of a right of occupancy under
joint occupancy by providing the; The principal features of a joint occupancy as follows:-

 The right of survivorship (jus accrescendi),

 The presence of the four unities,
 and Lack of words of severance.

The following are the rights to which a holder of a right of occupancy under joint occupancy has;

 Use and Enjoyment

 Transferability and Responsibilities
 Management and Control
 Dispute Resolution and Termination.

CONLUSION.

We also recommend the legislators to consider amendments to address the procedure for joining
a spouse as a joint owner of landed property and payment of Capital Gain Tax for the property.
INTRODUCTION

Co- ownership; is the term used to describe the form of ownership in which two or more
persons are simultaneously entitled in possession to an interest or interests in the same asset. 1
Section 159 (1) of the Land Act, [Cap 113 R.E 2019], “the Land Act” recognizes co-ownership
of land. However, the law makes it very clear that, although the land can be owned jointly, such
landed property is undivided. It further specifies that the co-occupancy of landed property
allowed in Tanzania may be either joint occupancy or occupancy in common. Now let us spend
some time to discuss these two types of ownership created by our law. This discussion will
enable us to determine which kind of co-occupancy suits what kind of relationship. 2 A person
can hold the right of occupancy alone or with another person, thus the holding can be in severalty
or concurrently. Holding severally refers to holding individually while holding concurrently
refers to two or more persons having simultaneous interest in land. 3In Tanzania, there is a
possibility of one person holding land individually or more persons holding land together, the
occupation can take the form of joint occupancy or occupancy in common. 4 The nature of
occupation must however be indicated in the instrument or document creating the interest
whether joint occupancy or occupancy in common as per section 159(3) (a) 5. And for joint
occupancy no separate shares and the document cannot state the individual shares.

Occupancy in common; this is the form of co-ownership in which the co-owner hold distinct
shares or notional proportions of entitlement. Tenant in common hold land in undivided shares,
under the occupancy in common the document must indicate the shares of each occupier as per
section 159(3) (b)6. Therefore under this sense, it can be said that tenant in common own specific
but undivided shares in the land.

Tenancy in Common Practice. Application for a grant of right of occupancy under tenancy in
common is a straightforward process. It is done by filling in application forms with names of co-
owners and indicating each share for each co-owner as required by Section 159 (3) (b) of the
Land Act. However, this type of co-ownership is not free from legal hurdles. The Complex issue
1
Gray K and Gray F. Susan,(2005),Elements of Land,4th Edition. Pg.1021
2
The Land Act , cap 113 R.E 2019
3
Tenga WR(2008), Manual on Land law and conveyancing in Tanzania
4
ibid
5
ibid
6
ibid
arises when the registered holder of the right of occupancy wishes to join another person as a co-
owner. The procedures for joining another person as a co-owner under tenancy in common are
the same as those highlighted above in joint tenancy. They also include payment of Capital Gain
Tax for the portion which is being transferred. Nevertheless, the most important feature in this
kind of co-ownership is that each co-owner has a defined share (s) in such undivided property.

Joint occupancy; refers to the occupation of the land exist where interest or estate in land is
vested simultaneously in two or more person without the words of severance. Under joint
occupancy two or more persons are treated as one owner, each of them possesses the entire joint
property by every part and by the whole.7 Here means no single joint occupier holds a separate
share in the land himself, the total interest in land is vested in each and all of the occupiers. In the
case of Burton v. Camden LBC8, it was said that the essence of joint tenancy consists in the
theory that each joint tenant is wholly entitled to the whole of the interest which is the subject
of co-ownership. Joint Occupancy/ Joint Tenancy

This is the type of co-occupancy by more than one person of undivided landed property and
owners do not have specific shares. In this kind of ownership, joint owners do not have specific
shares and upon the demise of one of the owners, the interest of such land automatically passes
to the surviving occupier. Under this type of co-occupancy, a joint occupier may transfer his
interest therein inter vivos only and only to the co-occupier and if any disposition is to be made,
then it must be made jointly by joint occupiers. Taking into account the strict nature of this mode
of land ownership, the Land Act, section 159 ( 8) states in clear terms that;

“Joint tenancy capable of being created shall be for spouses only.”

Although other people apart from spouses may create this kind of ownership, the leave of court
must first be obtained.

Grey Area in Joint Tenancy Process and Practice. Currently, the straightforward practice to
register the Joint Tenancy is only made during application for a granted right of occupancy
where the application forms give room to indicate both spouse names as joint owners. On the
other hand, if one of the spouses is already a holder of the right of occupancy and wishes to join

7
Tenga WR(2008), Manual on Land law and conveyancing in Tanzania
8
(2000)2 AC 399
a spouse as a joint owner, the process is more complicated as there is no specific form to join the
spouse. In practice, one has to invoke section 52 of the Land Registration Act, [Cap 334 R.E
2019]9 “the Land Registration Act” which allows a person to transfer a right of occupancy to
himself and another person. It is only through this process the spouse can be joined in joint
ownership. This process is completely a normal transfer which, among other things, includes
payment of Capital Gain Tax (CGT).

In our opinion this complicated process is unnecessary and payment of Capital Gain Tax is
illogical because there is no gain between the spouses as they are recognized as one soul. We
also find it unnecessary to go through transfer process to join a spouse as a joint occupier. We
strongly recommend that there should be a prescribed form to this effect.

MAIN BODY.

Under joint occupancy two or more persons are treated as one owner. It exists where an entire
estate or interest in land is vested simultaneously (at the same time) in the two or more co-
owners. Each of them possesses the entire joint property by every part and by the whole. No
single joint occupier holds a separate share in the land himself. The total interest in the land is
vested in each and all of the occupiers. As between themselves joint occupiers possess separate
rights but as against third parties they constitute a single composite owner.

Now on looking to the extent of the rights of a holder of a right of occupancy under joint
occupancy the following are the principal features of a joint occupancy which are: -
(i) The right of survivorship (jus accrescendi),
(ii) The presence of the four unities, and
(iii) Lack of words of severance.
The Right of Survivorship (jus accrescend). This is the distinguishing feature of a joint
occupancy that on the death of one joint occupier his interest in the land passes to the other
surviving joint occupiers. This process continues until there is but one survivor who holds the
land as a sole owner. Jus accrescend takes precedence over any disposition made by a joint
occupier e.g. will. Also the same principle applies where the joint occupier dies intestate i.e. joint
occupancy cannot pass under will or intestacy and his interest in thereby extinguished. As a
9
[CAP 133, R.E 2019]
result, each joint occupier holds nothing and yet holds the whole. He may become entitled to
nothing or to all depending on whether or not he survives his fellows unless he converts his
interest into occupancy in common. On the death of a joint occupier his interest vests in the
surviving occupiers by the jus accrescend principle-right of survivorship. 10 Under section 69 (1)
of the Land Registration Act Cap 334, if one of two or more joint owners of an estate or interest
dies his name shall be deleted from the land register on the application of any interested person
accompanied by proof of death.

According to section 159 of the Land Act where the land is to be disposed, each / all joint
occupiers must consent.11 A joint occupier can transfer his interest during his life time intervolves
to other occupiers only. He cannot transfer to a person who is not a joint occupier unless he had
severed the occupation.12 Joint occupiers may agree by executing an instrument to sever the joint
occupancy into occupancy in common. 13 The severance must be registered accordingly to be
effective.
Joint occupancy can only be created by leave of court unless it is between spouses. Any joint
occupancy created without leave of a court will take effect / operate as occupancy in common. 14
The right of survivorship (jus accrescendi); this is the distinguishing feature of a joint occupancy
that on the death of one joint occupier his interest in the land passes to the other surviving joint
occupiers, as per section 159(4) (b).15 In the case of Cffynn v Gardner16, the court stated that the
most survivorship called Jus accresendi is by which the entire interest remains to the survivor of
several joint tenants on death of one and ultimately to the last survivor. Jus accresendi takes
precedence over any disposition made by a joint occupier, example a will. Also the same
principle applies where the joint occupier dies intestate, means that joint occupancy cannot pass
under will.17 In case the land has to be disposed, each or all joint occupiers must consent as per
section 159(4) (a)18. A joint occupier can transfer his interest during his life time intervivos to the
other occupiers only.He cannot transfer to the person who is not a joint occupier unless he had
10
Ibid section 157 (4) (b)
11
Ibid section 157 (4) (a)
12
Ibid section 157 (4) (c)
13
Ibid section 159 (7)
14
Ibid section 159 (8)
15
[CAP 133, R.E 2019]
16
(1935) 14 W.A.C.A 260
17
Tenga WR(2008), Manual on Land law and conveyancing in Tanzania
18
ibid
severed the occupation as per section 159(4) (c)19.The joint occupiers may agree by executing an
instrument to sever the joint occupancy into occupancy in common as provided under section
159(7).20

Hereunder are the unities which are possession, interest, title and time.

Unity of Possession. Each joint occupier is as much entitled to possession of any part of
the land as the others. No occupier can point any part of the land as his own to the exclusion of
the others. If this was possible there could be separate ownership and not joint occupancy. In
Bull vs Bull21 it was stated that each is entitled to possession of the land, use and enjoyment of it
in a proper manner and neither can turn the other.
The mother and son jointly purchased a property, however the son contributed a greater
proportion of the original purchase price and took on full legal title to the house. Both parties
intended to live in the property on the agreement that the mother would occupy two rooms of the
house and the son being the principle user of the remainder. After some time the parties had a
disagreement and the son subsequently asked his mother to cease occupation of the property.
Lord Denning presiding, that the son was holding the property jointly on trust for his mother and
himself and that the presumption of sale should not interfere with the mother’s right of
occupation. Where the property is owned by tenants in common, all tenants are entitled to enjoy
the benefit of the property. It was also stated that each occupiers is entitled to possession of the
land, use and enjoyment of it in proper manner and neither can turn to other.
No joint tenant may ever physically delineate any part of land as being his to the exclusion of the
other co-owner or prevent another co-owner from taking his appropriate allocation of the rents
and profits derived from the land. 22 Under the Land Act section 159(4) it states that where the
land is occupied jointly under a right of occupancy or lease no occupier is entitled to any
separate share in land. Therefore no joint occupier can point at any part of the land/ house as his
or her own because that would amount to partition.

Unity of interest. The quality of interest is equal ie rent and any profits of the land are
divided equally. As a result there cannot be joint occupancy between occupiers with interests of

19
ibid
20
ibid
21
(1955) 1QB 234
22
Gray K and Gray F. Susan, (2005), Elements of Land, 4thEdition. Pg. 1030
different nature e.g freeholder and leaseholder. Also there cannot be joint occupancy between
those whose interests are similar but of different duration ie estate in fee simple and estate in fee
tail due to their varied duration.
The unity of interest requires that the interest held by each joint tenant should be the same in
extent, nature and duration. Section 159(4)23 requires all the joint occupancy to occupy the land
under the same interest not separately. In theory of law each joint tenant has the whole of
property, the rent and profits of the land are divided equally between all the joint tenants, there
can be no joint tenancy between those with interests of different nature, such as a freeholder and
a leaseholder and also there can be no joint tenancy between those whose interests are similar but
of different duration. All of these can be done only by all the joint tenants jointly; one alone
cannot effectually bind the estate.

The Unity of title. Each joint occupier must claim his title to the land under the same act
or document/ instrument/certificate of title.24 The root of title must be the same. Root of title is
the same because it is acquired through the same conveyance.
Each joint tenant must claim his title to land under the same act or document or instrument of
certificate of title as provided under section 160(1) 25.This requirement is satisfied if all the joint
tenants acquired their rights by the same conveyance or if they simultaneously took possession of
land and acquired title to it by adverse possession. In the case of ward v. ward 26 it was stated that
when two or more persons acquire a title under statute by joint possession they become joint
tenants of the property so acquired, but their beneficial interests may be those of tenants in
common in equity.

Unity of time.The interest of each occupier must vest at the same time and not at
different times. Tenants under joint tenancy must have acquired their interests at the same time.
For example, suppose the land is under occupation by spouses in such occupation the interest in
the land is to acquire at the same time by those spouses
Lack of Words of Severance. Severance is the process of separating off the share of a joint
occupier so that the concurrent interests will continue but the right of survivorship will no longer

23
[CAP 133, R.E 2019]
24
Sections 159(3) (a) and 160 of the Land Act
25
ibid
26
(1871) 6 Ch. App. 789
apply. The parties will hold separate shares as occupiers in common.27 In joint occupancy there
are no words that imply separate un-divided shares in the property i.e share and share alike, to
be divided amongst, between, equally, ½ to A and 1/3 to B etc.28

The following are the rights to which a holder of a right of occupancy under joint
occupancy has;

Use and Enjoyment: Holders of a right of occupancy under joint occupancy have the
right to use and enjoy the land for the specified purpose outlined in their title deed. This includes
activities such as farming, construction, or any other lawful use permitted by the terms of their
occupancy.29
Transferability: The rights associated with a right of occupancy, including those held
jointly, are generally transferable subject to certain restrictions. However, any transfer must
comply with the provisions set out in the Land Act and other relevant laws governing land
transactions in Tanzania.30
Management and Control: In cases of joint occupancy, decisions regarding the
management and control of the land are typically shared among the co-occupants unless
otherwise specified in their agreement or title deed. This may involve decisions related to
development, maintenance, or any other matters affecting the land.
Responsibilities: Each co-occupant is responsible for fulfilling their obligations as
stipulated by law and any agreements between them. This includes maintaining the land in good
condition, paying any applicable fees or taxes, and adhering to any regulations governing land
use.
Dispute Resolution: In situations where disputes arise among co-occupants regarding the
use or management of the land, mechanisms for dispute resolution are available under Tanzanian
law. These may include mediation, arbitration, or seeking redress through the courts if necessary.

27
See Form 61 for Instrument of Severance
28
Consider the cases of Pemberton v. Barnes (1871) Ch.D.675, Herichand Aggarwal v. Dhillon (1969) HCD n. 165.
29
Kevin, G & Suzan F, (2005) Elements of Land Law, 4th Edition, Oxford University Press, New York
30
Megarry, R (2002) A Manual of the Real Property, 8th Edition, Sweet & Maxwell limited, London.
 Termination: The termination of a joint right of occupancy can occur through various
means such as mutual agreement among co-occupants, expiration of the occupancy period
specified in the title deed, or legal action taken by one party to terminate the joint arrangement.

CONCLUSION:

In conclusion, holders of a right of occupancy under joint occupancy in Tanzania have specific
rights that allow them to use and manage the land collectively while also bearing individual
responsibilities towards its upkeep and compliance with relevant laws. Understanding these
rights is crucial for ensuring harmonious co-existence among co-occupants and proper utilization
of land resources.

With the emerging inheritance problem, succession issues and for the purpose of avoiding future
disputes on land, it is high time for Tanzanian community to consider embracing the co-
ownership modalities. Co-ownership of property is considered as one of the best estate planning
techniques. We further call for the responsible authorities to modify and customize the practice
of co-ownership in terms of registration and taxation. We also recommend the legislators to
consider amendments to address the procedure for joining a spouse as a joint owner of landed
property and payment of Capital Gain Tax for the property.

BIBLIOGRAPHY

STATUTES
The Land Act [Cap 113, RE 2019]

CASES

Bradley v Fox I ll 2d 106 (1955

Dunbar v Plant [1998] Ch 412; [1997] 4 All ER 289

Re K [1985] CL 85; [1985] 1 ALL ER 403

Re Pechar (decd) [1969] NZLR 574

Rasmanis v Jurewitsch(1960) 88 WN PTI (NSW) 59

Re Thorp (1961) 80 WN (NSW) 61

Re Barrowcliff (1927) SARS 147

Cffynn v Gardner (1935) 14 W.A.C.A 260

bull vs. bull [1955] 1 Q.B.234

Burton v. Camden LBCm(2000)2 AC 399

BOOKS

Kevin, G & Suzan F, (2005) Elements of Land Law, 4 th Edition, Oxford University Press, New
York

Megarry, R (2002) A Manual of the Real Property, 8 th Edition, Sweet & Maxwell limited,
London.

Meggary & Wade (2012). The Law of Real Property, 8th Edition, Sweet & Maxwell, London.

Tenga, W.R(2008) Manual on Land and Conveyancing in Tanzania