COURSE: LAND LAW

COURSE CODE: LW 214

ZANZIBAR UNIVERSITY
Right of Occupancy
We can cover procedures, determination, characteristics, types of right
of occupancy, conditions, breach of conditions, and revocation of the
Right of Occupancy.
 Right of Occupancy
Means exclusive right to the use and occupation of land. Under section
2 (LTA an LA)
The Right of Occupancy is divided into:-
I. Granted Right of Occupancy and
II. Deemed Right of Occupancy/Customary
1. Granted Right of
Occupancy
Statutory right of occupancy and use of land by any appropriate
government authority under the provision of law.
Granted by either the Commissioner or Minister
2. Deemed Right of Occupancy/Customary
This is the right to occupy and use under the customary law.
This occupancy is allowed to most Tanzanian African decent.
 Nature of Customary Land
Tenure in Tanzania
Customary land tenure in Tanzania obtained through the following
ways:
I. By way of gift from some one else
II. By way of inheritance
III. By way of clearing the vacant land
IV. By way of purchasing
Status of the Customary
Land Tenure
The main question may be the relationship between the deemed right
of occupancy and the granted right of occupancy
The law is that once the land declared to be planning area land
surveyed, marked, mapped, and allocated to the particular individual.
The deemed right of occupancy come to an end (extinguished).
Methuselah Paul Nyangwaswa v Christopher Mbote Nyirabu[1985] TLR
103
Mulbadow Village Council v NAFCO [1984] TLR 15
 Types of Granted Right of
Occupancy
The Rights of occupancy can be categorized on the following:-
i. The time/duration classification
This category includes, long term rights of occupancy (99 years),
short term rights of occupancy (less than 99 years but not less than
5 years) and periodic term rights of occupancy (year to year or not
more than 4 years).
ii Functional classification /according to use
Under the functional classification, the rights of occupancy
includes:- agricultural, pastoral land, mixed agricultural and
pastoral land, and building purposes.
Land Occupation under the
Land Act
The right to occupy land on individual basis or in association with
others. Such rights are granted rights of occupancy and derivative
rights. Section 19 (1).
Both rights are available to non-citizens individually or where they form
majority in the shareholder of a body corporation provided such grant is
for Investment purposes under the Tanzania Investment Act 1997.
The law also provide room for partial transfer of interest by a citizen for
purposes of investment approved under the Tanzania Investment Act,
1997 in a joint venture to facilitate compliance with development
conditions. 19(2)
Land Occupation under the
Land Act
Non-citizen cannot be allocated land for any other purpose than
investment. Section 20 (1).
If an application for a right of occupancy or a derivative right, which is
made by a non citizen or a foreign company, is for residential purposes,
use of such land shall be secondary or ancillary to the investment
approved under the Tanzania Investment. 25(1) (i).
 Powers of Local Government
Authorities in Granting Residential
License
A Local Government Authority can grant a residential license subject to
the following conditions.
I. to any person occupying land without official title or right within
the area of jurisdiction of that local authority as his home;
II. for a term which shall not be less than six months and not more
than two years which may be renewed for a similar term.
III. subject to any conditions, including conditions as to the payment of
any fees or charges which may be specified in the license or which
may be prescribed.
Conditions on the Right of Occupancy
Mainland
A right of occupancy is normally accompanied with conditions.
The conditions are one of the ways in which the Government can
ensure control and regulate development in land.
The conditions can facilitate orderly land use planning with the support
of planning law.
Conditions Right of
Occupancy in Mainland
Apply for planning consent under Town and Country Planning Act
(Building rules) within 6 months of the grant of right of occupancy.
Payment of premium, premium may only be demanded when a
Certificate of Title is being delivered to the occupier.
Failure to pay shall be deemed to be a breach of a condition of the right
of occupancy and gives the right to the state to revoke the right of
occupancy.
Right of Occupancy in
Zanzibar
The right of occupancy for a Zanzibari may arise in any of the following
ways:-
(a) a grant from the Minister;
(b) recognition of a rightful interest following an adjudication carried
out under the Land Adjudication Act and subsequent registration under
the Registered Land Act;
(c) inheritance of a lawful registered interest;
(d) purchase of a lawful registered interest; or
(e) gift of a registered interest from
Conditions Right of
Occupancy in Zanzibar
The right of occupancy shall exist under the following circumstances:-
(a) that the holder of the interest be a Zanzibari over the age of
eighteen,
(b) exclusive right to occupy and use the land which comprises his right
(c) that the holder of the right of occupancy shall have the right to make
disposition of the land or other interests therein to any other Zanzibari,
(d) that the interest be held in perpetuity without specific term and be
inheritable under the appropriate provisions of the Zanzibar law of
Succession.
Section 8 of the Land Tenure Act
Length of the Term of the
Granted Right of Occupancy
Duration of the right of occupancy is definite while in Zanzibar is
indefinite.
A right of occupancy may be granted for a term up to but not exceeding
ninety-nine years; for a term together with an option for a further term
or terms which together with the original term may be up to but shall
not exceed, ninety-nine years; or from some lesser periods.
Where the right of occupancy comes to an end through affluxion of
time the person or organization occupying the land shall if complied
with the terms and conditions be offered a renewal of that right of
occupancy before being granted to any other person. See 32 (1) of the
Land Act.
Change of Use
An occupier of land may apply to the commissioner for a change or
variation to that right of occupancy so as to enable him to undertake
developments or use of that land or disposal of the whole or part of
that land in connection with the development of that land which is not
permitted.
In order for an approved change of use to take effect it must have been
endorsed on the certificate of occupancy, signed by the commissioner
with his official seal and all additional rent have been paid. See Section
35 of the Land Act
Disposition of Right of
Occupancy
Disposition of a right of occupancy does not require the consent of the
commissioner or authorized officer.
It requires notification to the Commissioner
Once the commissioner has received the notification he may issue the
parties a notice requiring them to submit additional information or
apply for approval.
See section 36, 37, 38 of The Land Act
Disposition of Right of
Occupancy
The Minister vide GN 74/2001 made regulations that differentiated
between categories of disposition that require approval and those that
do not require approval.
The application for grant of approval of disposition should meet the
following:-
(a) made on a prescribed form; (b) signed by all the applicants; (c)
accompanied by any other information which is prescribed or which
may be required by the Commissioner; (d) accompanied by any fees
which may be prescribed. Section 39 (1) of the Land Act.
Breach of Conditions of
Right of Occupancy
Failure to comply with the obligations or liabilities constitutes a breach
of the condition. Section 44 of the Land Act.
Where the occupier of land has breached the conditions of the right of
occupancy certain consequences follow.
The law empowers the President to revoke the right of occupancy for
good cause. Section 45 of the Land Act.
Breach of Conditions of
Right of Occupancy
Good causes include abandonment (un-used) for 2 years, attempted
disposition of the right of occupancy to a non-citizen contrary to the Act
and any other law etc.
A right of occupancy which has become liable to be revoked ceases to
be liable if the breach is subsequently remedied.
Case for breach of condition
In Rajabu Hassara v Saraya Rashid (1983) TLR 111 the appellant was
offered the right of Occupancy in respect of a certain plot in 1968.
The Right of Occupancy was eventually revoked by the President for
alleged non-compliance with the conditions stipulated in the Right of
Occupancy in question. The crux of the appeal is whether or not there
had been "good cause" for the revocation of the Right of Occupancy,
following which the said plot was reallocated to the respondent.
It was held inter alia that non-compliance with the conditions stipulated
in the Right of Occupancy constitutes "good cause" for the right to be
revoked.
Notice to revoke
Case of Agro Industries LTD v. AG (1994) TLR 43
It was stated notice before revocation important for issuing a notice to
revoke a right of occupancy is to afford a party an opportunity to put up
a case against the proposed revocation.
Revocation and its Effects
Revocation arises where a holder of right of occupancy has breached
conditions of his occupation.
The President approves a revocation the Commissioner shall publish it
in the Government Gazette and newspaper.
Once it is published all rights and interests in the land will revert to the
president.
All exhausted improvements shall vest in the president and all rents and
taxes shall be extinguished.
Payment of fees and taxes shall not have any effect toward revocation.
Section 49 of the Land Act.
Action to Enforce Revocation
for Breach of Condition
The Commissioner can serve a notice of revocation.
The notice takes effect 90 days after it has been served the notice can
be served in cases where
(a) a notice served under section 47 has not been complied with,
(b) the breach of condition is so serious
Auctions of Right of
Occupancy
The Minister may after considering the advice of the commissioner
direct that general land be made available for development through
auction or a process of tendering for the land.
Creation of Derivative Rights for
Non-citizens and their Implication
Derivative right is to be created for non-citizen, the land will be
identified, designated and gazetted for investment purposes and
allocated to the Tanzania Investment Centre which shall create
derivative rights to investors.
The non-citizen as, any body corporate of whose majority shareholders
or owners are non-citizens is deemed to be non citizen or foreign
company.
Creation of Derivative Rights for
Non-citizens and their Implication
All land acquired by non-citizen prior to the enactment of the Act are
deemed to have no value except for exhausted improvements for which
compensation may be paid.
See Section 20 (1 - 5) of the Land Act.
Ceiling of Land Occupancy
The Minister is required to make regulations that provides for a
maximum area of land a person may hold under single right of
occupancy or derivative right. Under section 21 of the Land Act.
Such ceiling must comply with the process provided for under section
179 of the Land Act
Factors that may be taken into account for a ceiling to occur includes
land use, location, feasibility studies and proven ability of applicant to
develop the land.
Incidents of the Granted
Right of Occupancy
The incidents define the granted rights of occupancy as to be granted
by the president, in general or reserved land, of the land which has
been surveyed, has to be registered under the Land Registration Act,
Cap 334 to be valid and indefeasible, for a period of up to but not
exceeding 99 years, at a premium, for an annual rent, subject to
conditions, liable to revocation and liable to compulsory acquisition by
the state for public purposes subject to the prompt payment of
compensation.
Section 22 of The Land Act.
Incidents of the Granted
Right of Occupancy
The granted right of occupancy does not confer water rights, rights over
the foreshore, mineral rights, and rights to extract gas.
No legal claiming for the proprietor of the land for the above
concerned.
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