0.

Course Outline 2
1. Introduction to Land Law 3
2. Tenancy 14
3. Introduction to Customary Tenure 35
4. Customary Land Administration 46
5. Land Alienation Procedure 60
6. Land Registration 78
6.1. Torrens System of Registration of Land 90
6.1.1.Torrens System Additional Reading 98
7. Cadastre 118
 COURSE CODE : GEE 3522
COURSE TITLE : LAND MANAGEMENT II
Rationale
Land constitutes a basis for the Geomatics profession. The increasing demand of land in turn demands
an equally vibrant land management system. Therefore understanding issues concerning how it is
managed and the legal framework within which land is administered is therefore of paramount
importance. This course therefore provides a firm understanding of land management and its legal
framework that has been inadequately addressed previously.
Aim
The course aims at giving students with the understanding of law governing land and the issues of
land administration such as registration and conveyancing
Objectives
Upon completion of this course, students will be able to:
i. Explain the origins of land law, land tenure and land administration in general in Zambia.
ii. Apply land law in different situations that arise in day to day life
iii. Apply concepts of land administration in the ever increasing demand for the land resource,
effectively.
iv. Apply statutory provisions and controls in land administration
Course content
Common Law Heritage and its Influence on Land Law in Zambia
Sources of land law; common law; concepts of land; classifications and categories of property; law
and equity; Concepts of estates and tenure; statutory provisions and controls
Land Tenure
Definitions and concepts; types of land tenure; formal and informal tenure; land and rights in land;
property rights and property regimes; concept of ownership and interests in land; land tenure in
Zambia; statutory provisions and controls
Land Administration
Definitions and concepts; process; benefits; demarcation, adjudication; allocation; registration;
valuations and economic assessments; land governance and transparency; transparency assessment;
access to information and public participation; professional ethics and integrity; institutional and
organisational reforms; land administration in Zambia; statutory provisions and controls
Pre-requisites
None
Time Allocation
Lectures 4 hours/week
Laboratory/Tutorial 3 hours/week
Assessment
Assignments 5%
Labs 15%
Tests 20%
Final Exam 60%
Prescribed text(s)
1. Diane C.(2007), Land Law, Pearson Education, 8th Edition. ISBN13: 9781405858250, ISBN10:
1405858257
2. John D.(2008)Law Express Land Law, Pearson Education, 2nd Edition. ISBN13: 9781405873611,
ISBN10: 1405873612
3. Dale, P. M.(2000) Land Administration (Spatial Information Systems), Oxford University Press,
USA, ISBN: 0198233906, 978-0198233909
Recommended text(s)
1. Mvunga M.P.(1982)Land Law and Policy in Zambia, Institute of African Studies
2. Mvunga M.P.(1980) The Colonial Foundation of Zambia’s Land Tenure System NECZAM, Lusaka

0. Course Outline 2
 LAND LAW
HISTORICAL BACKGROUND

The first people to acquire land in Zambia were mineral prospectors and
they acquired land through two sources firstly, through mineral
concessions with chiefs, and secondly through the decentralisation of
North Eastern Rhodesia as a protectorate. In North Western Rhodesia the
landuse the land was acquired through mineral concessions with
Traditional Authorities, and the first to come was made that he be entitled
to mine in land authorized, and in exchange, he had to offer British
protection and pay loyalties. The British South African Company bought
the concessions from H. Ware but because they weren’t happy with H.
Ware so they sent Frank Lochivar to negotiate and many of the
concessions were incorporated in Lochivar concession because the
traditional authorizes had hoped that the British government would send
soldiers to help in the protection against enemies from the south. The
B.S.A Co. however alienated the land although they had no such rights.

In North Eastern Rhodesia on the other hand the company claimed titles
to the land through the declaration of North East Rhodesia as a
protectorate under the 1899 orders–in–council. The question is whether
the declaration of the protectorate conferred of the administrative
authority in the ownership of land, and this was finally resolved in the
Southern Rhodesia [in the application of 1919 act 211-law report].

And in this case the Privy Council held that the declaration of the
protectorate did not vest land in the crown. So if the crown wanted land it
would have passed legislation to that effect and hence it was only in 1928
when the order-in-council created reserves was passed that the crown
owned land (Crown Land).

COLONIAL LAND POLICIES

The land policies were passed on a belief that there would be lots of white
settlers hence certain land was reserved for the anticipated settlers and the
other land for Africans. However, the settler farmers relied on Africans
for their labour, they were few and there was competition between
African farmers and settler farmers. All this resulted in the BSA Co.
handing over administration power to the British colonial office including
the rights over land although rights over minerals remained with the

1. Introduction to Land Law 3

 company. In 1928 an order-in-council was passed which created native
reserves, and crown land. Although the land was meant exclusively
for native use pressure from settlers especially missionaries forced the
government to make allowances for non-natives to be granted leases in
these reserves. The settlers favored this move because they did not want
to have neighbors who had no knowledge of using the land.

PROBLEMS CREATED BY ESTABLISHMENT OF RESERVES

1. Insufficient access to the rail line – this meant that Africans

could not produce excess for sell
2. Most areas were inhabitable due to the absence of water supply and
the presence of tsetse flies as a result there was congestion and
overcrowding. As for the land left for the natives was largely un-
occupied, this becomes vacant for the settlers were fewer than
anticipated hence land with rich soils was left uninhabited whilst
natives occupied small reserves with generally poor soils.

The problems created by reserves led to the formulation of a new land

policy in 1938, under which trust lands were created. The native trust
land was vested in the colonial secretary of state and it comprised land set
aside for the exclusive use of the natives. The native trust land is
differentiated from a native reserve by the duration of an interest to a
non-native. Non natives in reserves can be granted an interest up to 5
years only where as in trust land such an interest may be up to 99 years
such an interest in the trust land is a right of occupancy whereas in
reserve land it is called reserve lease. The land policy was finally
implemented by the 1947 order-in-council.

1. Introduction to Land Law 4

 CROWN LANDS

These were the lands available for non-native settlements and mining and
covered all land with rich soils and all land along the line of rail as for the
tenure (conditions under which land is held) the choice was between lease
hold and freehold. The two systems of land tenure, freehold and lease.

FREEHOLD TENURE - The period for holding land is not prescribed

and the rights continue forever under freehold to the owner.

LEASE HOLD – The period of tenure is fixed for a certain period of

time and the rights ceases after that period of time.

Advantages of freehold tenure

1) It gives greater tenure security, in lease hold one cannot make long
term investment.
2) Lending institutions give more loans to freeholds than leaseholds
3) Leaseholds describe terms which have to be followed whereas
with freehold there is complete freehold ownership

Disadvantages

1) The government does not force any development initiatives and

hence the land held under freehold may not develop their land
waiting for it to increase in value so that they can sell it at a
higher profit
2) The question of land fragmentation – a piece of land is divided into
smaller unviable portions and as a result families on these portions
cannot do any project or programme on very small pieces of land.

In 1924 the then Northern Rhodesia governor, he was for freehold

arguing that settlers would be prevented from exploiting the soils fast
before going back to their homes, however, the successor was for lease
hold and his argument was that freehold was not conducive for
agriculture development in that freehold. Freehold title give the holder
the right to deal with the land in any way without restriction. The
Northern Rhodesia legislative council supported Maxwell’s policy and
hence from 1931 the land along the line of rail could be alienated on
leasehold tenure only. Other recommendations were that the term for

1. Introduction to Land Law 5

 leases should be as long as freehold title and hence agriculture leases
were to be of three types.

a) long term leases for 99 years

b) Short term leases to be for 30 years

Leases for small holdings to be for 99 years – As for long term

leases the provision was to be made for minimum amount of
development to be carried out within a specified time. So in 1947
the trust lands order–in-council was passed to set the trust land
policy in motion.

THE CONCEPTS OF TENURE AND ESTATES

Tenure comes from ‘tenere’ which means to hold, and estate is a piece of
land however in this context it means the length of someone’s interests in
a particular piece of land. In English law the concept of absolute
ownership of land (dominion) does not exist. The crown owns all land
and everybody else has a lesser interest.

Land Ownership has various sides to it. Important among the various
facets is Title to land, a term indicating the legal right to land. Tenure
refers to the conditions upon which land is held. The duration of a
tenancy of land (i.e. the maximum time before which the tenancy must
come to an end) is termed as estate for which the tenant holds the land.
The conditions or services in return for which land is held tells the nature
of tenure by which the tenant holds the land. Under freehold estate there
exist 3 types-:

1) Fee simple estate

2) Fee tail estate
3) Life estate

Fee relates to interests that can be held and capable of being inherited.

Fee Simple: a fee without limitation to any class of heirs; they can sell it
or give it away.

Fee Tail: a fee limited to a particular line of heirs, they are not free to sell
it or give it away.

1. Introduction to Land Law 6

 Estate Pur Autre Vie- this refers to life estate but here the measure
doesn’t count on the life of tenant but on a condition that it will be
granted to a person as long as another one lives.

ESTATES

Estates can be held in three types of ways

1) Estates in possession - here there is entitlement to immediate

possession although not ownership
2) Estate in remainder – here you get the remainder after another
interest has expired
3) Estate in reversion – here the land reverts to the owner after
another’s interests have expired

ALIENATION: To alienate property means to transfer to someone else.

LAND OWNERSHIP: A simple and not uncommonly assumed use of

the term ownership is to describe a relationship between a person (the
owner) and a thing (the object of ownership) in which the owner has
every possible right in the thing in the most absolute degree.

Various schools of thought define ownership differently. The Roman Law

based systems consider ownership in a concept known as dominium. This
is where the relationship between the owner and the object of ownership
in which the owner has every possible right in the item in the most
absolute sense.

The English Law based systems on the other hand are generally
characterized by the consideration of ownership as consisting of a bundle
of rights over land of which any selection may be detached and given to a
person other than the owner.

However, despite the differences in conceptual approach certain

tendencies in behavior as regards ownership remain constant in both the
Roman and English Law systems. For instance an individual who owns a
pen will have the right to write with it or lend it out but at no time has he
the right to poke it into another person’s eye. This illustration of
ownership rights and restrictions are universal, and shared by most legal
systems whether being Customary, Common Law based, Roman Law
systems.

1. Introduction to Land Law 7

 A.M. Honore’ in Oxford essays in Jurisprudence suggest a liberal concept
of ownership as a series of rights and incidents as follows;
1. Right to possess
2. Right to use
3. Right to manage
4. Right to income of the thing
5. Right to capital
6. Right to security
7. Right to incident of transmissibility
8. Absence of term
9. Prohibition of harmful use
10.Liability to execution
11.Incident of residuarity

(Right to possess: This is the privilege to hold or keep property by the

owner. This is the right to exclusively control the land i.e. exclude other
people from entry. This right may be exercised in a physical way to
prevent other people from entry on property.)

Honore’ further comments that the above listed may be regarded as

necessary ingredients in the notion of ownership. But they are not
individually necessary though they may together be sufficient conditions
to designate ownership of an item in a given system.

Objectively speaking land is not capable of being owned in the most

absolute sense. That is, you cannot own land and do as you wish with it
without regard to other living beings. In this respect even the English
system smartly avoids the direct connotation of owning land, but rather
uses owning an estate in land.

‘Ownership’ is a word derived from a very simple term ‘own’, defined by

the pocket oxford English dictionary as: Not another’s

The Roman legal based systems correctly defines ownership in dominium

as the unrestricted, and exclusive control which a person has over an item
of ownership. However, whether this concept can be extended to be used
over land is a matter of serious debate as land is a universal property
which cannot be subject to absolute private ownership. It belongs to all
living things, plants and animals. By virtue of their existence, all living
things are entitled to some space, somehow, somewhere on earth. And it
is not necessary that for any living being to exist it must first own some
space to live on, on the face of earth. Nature has never acknowledged
absolute private ownership of land, it is in actual fact is based on

1. Introduction to Land Law 8

 interdependence of systems. The fact the living exists naturally gives
them a right to live somewhere on land, and their existence does not
depend on whether they own land or not. They cannot be excluded from
land and get thrown into outer space for instance if the world gets
completely owned by limited people. Land like fresh air and water, as
necessity of life is fungible (not capable of being owned) and as such it
falls into a category of thing that are common to all (res communes).

Land as a shared property will always create condition where other living
beings will constantly impose restrictions onto the so called ‘land
owners’.

NATURE OF ESTATES OF FREEHOLD

In practice the fee simple owner is the actual owner of the land although
his legal rights are less than those of the absolute owner. This is shown
by-:

a) the right of alienation , i.e. the right to transfer to another the

whole or any part of the interest in land
b) the right of ownership to everything in, on, or over the land

THE RIGHT OF ALIENATION

The fee simple owner has the same right as the actual owner and hence
independent to dispose of his land to anybody he deems fit. He is under
no obligation to any third party apart from those he contracts with there
is however a regulatory limitation vested in the stall which tempers
with freedom of the owner In the land e.g. a statute may prohibit him
from building a home somewhere on his land.

1. Introduction to Land Law 9

 THE RIGHT OF EVERYTHING IN, ON OR OVERLAND

The general rule is that he who owns the soil is presumed to own
everything up to sky and down to the centre of the earth cujus est solum
ejus est usque ad colum et ad inferors. He is entitled to possession of any
chattel not the property of any known person which is found under or
attached to his land. But this does not apply to temporary chattel merely
resting on the surface.

1. Introduction to Land Law 10

 EXCEPTIONS TO THE GENERAL RULE

1) AIR SPACE – Intrusion into the air space above land is a trespass
and often also a nuisance. Aircrafts enjoy a wide dispensation
under the civil aviation act Cap 704 Section 7 of the act provides
that no action shall lie in respect of trespass or nuisance by reason
only of the flight of aircraft over property at a height which is
reasonable under the circumstances, otherwise there must be
previous notice to the owner or occupier of the land.

2) MINERALS – These are vested in the president by mines and

minerals act Cap 329.

3) WILD ANIMALS – At common law wild animals are not subjects

of ownership, the owner has a qualified right in them in that he has
the exclusion right to hunt and put then to his own use but as soon
as they fall dead they belong to the land owner even if killed by a
trespasser. Under the national parks and wild life act cap 316, they
belong to the president

4) WATER- Act common law a fee simple owner has no property in

water whether it percolates under the surface of his land of
percolating water the land owner may draw off, any or all of it
without regard to claims of neigbors. In case of water flowing
through a defined channel, the riparian owner can always take all
the water but he has certain variable right first of all he has the
sole right to fish in the water he is entitled to the ordinary and
reasonable use of the water flowing over the land. Under the
water Act Cap 312, Section 5 vests ownership of all water in the
president provided the land owner has the right to take free of
charge the water he may need for his own primary, secondary or
territory use. Primary use refers to domestic purposes and annual
life. Secondary use is for irrigation of land. Tertiary use is for
mechanical and industrial purposes or for generation of power.

1. Introduction to Land Law 11

 THE EXTENT TO WHICH THE DOCTRINE OF TENURE &
ESTATE APPLY

Under section 4 of land conversion of Titles Act 1975 all land in Zambia
is vested in the President. However, 99% of land had already been vested
in the head of state under the orders-in-council.
Section 31-2 of the Lands and Deeds Registry Act Cap 287, abolishes the
existence of fee tail in Zambia.

Section 5 of the Lands Conversion of Titles Act converts all freehold

estates of a term beyond 100 years to statutory leases of about 100 years.
Under customary land tenure chiefs have interests in the control, whilst
individuals have interests of use.

FIXTURES

The maxim ‘Quic Quid Plantatur Soloso Credit’ which means what is
fixed or attached to the land becomes part of the land. There are two
elements which have to be considered, firstly is the degree of annexation,
there must be substantial connection with the land or building on it.
Secondly, is the purpose of annexation? This infact is the main factor in
that the degree of annexation is regarded as being of an importance as
same as evidence of purpose. The rule is that articles not other wise
attached to the land than by their own weight are not to be considered as
part of the land unless the circumstances show that they were to be so. On
the contrary articles are fixation. To the land even slightly are to be
considered as part of land unless there is evidence to the contrary. if the
purpose of fixation is to improve the land then they are fixtures but if
the purpose is for decoration or enjoyment then it’s a mere chattel. if
the removal of the thing may cause damage either to the thing itself or to
the land then one can safely say it has been attached as part of the land
even if the person who fixed the thing is the land has no titles to the
land itself it will still be considered as a fixture and cannot be removed.
The general rule is that all fixtures attached by the tenant, become the
landlord’s fixtures however there are certain exceptions to the rule.

i) If it’s a chattel the tenant can remove it anytime but if it is a fixture

you cannot have the right to remove it.

1. Introduction to Land Law 12

 ii) Trade fixtures -: These attached for the purpose of trade or
business may be removed at anytime during the term but not long
afterwards

iii) Ornamental fixtures -: if they are for the purpose of improving the
land, then they are irremovable but if they are there for ornamental
purposes, they may be removed e.g. flower vessels and certain
paintains etc., these are also removable.

iv) Agriculture fixtures -: These are treated like trade fixtures

These exceptions were intended to encourage industrialisation.

LAW AND EQUITY

CONCURRENT INTERESTS

This can take various forms namely joint tenancy, tenancy in common,
corpacennary and tenancy by entities.

JOINT TENANCY

The distinguishing factors of a joint tenancy are as follows-:

1) The right of survivorship i.e. Jus accrescendi- it means that on

death of one joint tenant his interests in the land passes to the
other joint tenant and does not pass to the deceased descendants.
The joint tenant who survives becomes the sole tenant and the right
of survivorship operates notwithstanding the existence of the will.
The only way a joint tenant can alienate his interests to another
is by reversing the tenancy by inter vivos (= transfer of an
interest in land whilst you are alive) [ converting the interest of a
joint tenant to interests of tenants in common to allow your
interest to pass to somebody upon death]
2) There must be the four units in existence namely (vis a vis) unity of
inter unit of possession, unit of time and unit of title.

1. Introduction to Land Law 13

 CONTENTS: CONCURRENT INTERESTS, LEASES, LICENSES AND
TENACIES

CONCURRENT INTERESTS

Arise when two or more persons hold an interest in land in possession at the same
time.

Example:

a. Mulenga is granted land for life after which Simbangala is given a fee simple;
No concurrent ownership they hold interests which are not in possession at
the same time.

b. Mulenga and Simbangala are simutenously granted fee simple; then Mulenga
and Simbangala’s interests are concurrent.

Co-ownership can take various forms namely joint tenancy, tenancy in common,
co-parcenary and tenancy by entireties.

Joint Tenancy

The distinguishing factors of a joint tenancy are as follows-:

1) The right of survivorship (i.e. Jus accrescendi)- on death of one joint tenant
his interests in the land passes to the other joint tenant and does not pass
to the deceased descendants. The joint tenant who survives becomes the sole
tenant and the right of survivorship operates not withstanding the existence of
the will. The only way a joint tenant can alienate his interests to another is
by reversing the tenancy by inter vivos (i.e. transfer of an interest in land
whilst you are alive) [ converting the interest of a joint tenant to interests of
tenants in common to allow your interest to pass to somebody upon death]

2. Tenancy 14
 2) There must be the four unities in existence namely unity of interest, unity of
possession, unity of time and unity of title.

a. unity of interest- the co-owners must hold the same interest in the land

b. unity of possession- the property must be vested in possession to both

of the parties at the same time. Common also to tenancy in common
i. Unity of possession exists when each co-owner is entitled to
possession of the whole of the property: no one co-owner can
claim possession of any part to the exclusion of others.

c. unity of time- Co-owners must be able to take possession at the same

time.

d. unity of title- All the co-owners must acquire title to the land under the
same document. Note that neither a corporation nor a limited company
can have a joint tenancy with a natural person. Reason is because a
company never dies and hence a natural person could have no effective
right.

Note: Reversing the tenancy by intervivos is a person transferring his interests to

another person, say while alive say X but X doesn’t become a joint tenant but a
tenant in common since the unties of title and time are not present.

Nature of Joint Tenancy

The two partners are basically one and the same. As a separate individual he does
not own anything at all but together with the other partners they own everything the
result is that any joint tenant can occupy the whole premises or can be able to rent.
Under the Particulars Act (1540) any joint tenant not happy with the way the joint
tenancy is operating can bring an action to have the tenancy partitioned and thus
destroy the joint tenancy.

2. Tenancy 15
 TENANCY IN COMMON

Tenancy in Common is a specific type of concurrent, or simultaneous, ownership

of real property by two or more parties. This is a shared tenancy in which each holder
has a distinct, separately transferable interest.

All tenants in common hold an individual, undivided ownership interest in the

property. This means that each party has the right to alienate, or transfer the
ownership of, her ownership interest. Each owner has the right to leave his share of
the property to any beneficiary upon the owner's death.

A tenant in common holds any undivided share in a tenancy. It is differentiated from

a joint tenant in that a tenant in common has undivided shares whilst a joint tenant
has nothing at all or has everything. A Joint tenant has no right of survivorship
compared to a joint tenant.

In a deed if the expression joint and severally is found the word joint is much
adhered to, but in a will it is severally which is given word. The interests can
exists both a common law, there was an inclination towards joint tenancies rather
than common tenancies, the reason was because joint tenancies had certain
advantages as regards land owners e.g.

1. It was easier for a landlord to collect the rent i.e. only from one tenant

2. Only one payment was made by the joint tenants whereas in common
tenancies the tenants paid separately and hence paid more for one property.

There was a problem of conveyance. It was easier to investigate one title in a joint
tenancy rather than titles of every one who was a tenant in common. The importance
of investigating titles of tenants in common was because whereas in joint tenancy
there was unity of title, tenants in common had no such unity.

Equity however created exemptions in this respect. Tenancy in common existed not
only in those circumstances which tenants in common at common law existed but
also in certain exceptions firstly, if money contributed is unequal they can not be
joint tenants and tenants in common. If they contribute equal share equity presumes
that they are joint tenants. Secondly, which refers to Partnership Act, they are held

2. Tenancy 16
 by both parties as joint tenants and not as tenants in common. This is so irrespective
of how much they contributed and it does not matter whether partnership is formal
or not.

As regards determination of joint tenancies and tenancies in common this may be by

partition, sale of premises, union in a sole tenant, the release by deed, and alienation
by one joint tenant.

TENANCY BY CO-PARCENARY

This arises by operation of the law i.e. it is not a deliberate action by one individual
it arises where there is no male heir only female heirs available the partner will
be parcenars and not joint tenants. This has certain characteristics of joint tenancies
and some characteristics of tenancies in common e.g. the four units are normally
present. It no longer exists.

TENANCY BY ENTIRETIES

These no longer exist as from 1883, however prior to that a gift to a husband and a
wife without words of limitation which could make them tenants in entireties and
not joint tenants. Where there is a third person included in the grant the husband and
wife will be tenants in the entireties but together will be joint tenants with the third
person and hence they will get half and the third partner the other half. After 1883
any grant to the husband and wife makes them joint tenants. There are certain unique
situations

1. A grant that creates a personal obligation on each of the partners creates a

tenancy in common and not a joint interest in the debt although at law payment
to one of them will be enough since they be regarded as joint tenancy.

2. Where a debt is owned to two partners who have a joint interest in the debt
although at law payment to one of them will be enough since they be
regarded as joint tenants this will not be the position in equity. In equity the
partners will be regarded as tenants in common and not joint tenants both
of the debt and hence the security held for it.

2. Tenancy 17
 Leases and Licences

A lease can mean the document or actually the interest that is being transferred. At
common law there was no duration for the existence of a lease. In Zambia however,
Section 5 of the Land (conversions of titles) Act 1975 converts all leases for the
period over 100years to statutory leases of a 100years but the President can grant a
lease for over 100years if it is an international interest relations.

Terminology used in Leases

A conveyance is a transfer of a fee simple estate.

An assignment is a transfer of a leasehold estate. It is not all transfers which amount

to leases. Sometimes it may amount to a mere license.

The test used to find out if it’s a lease or license is one of exclusive possession. In a
lease the tenant has the right to exclude the landlord from the premises in his
possession. The landlord may have the right to inspect the land but if there is no such
reserved right in the lease itself he becomes a trespasser. The exclusive right is
derived from the construction of the document itself.

A license is a right or permission granted to a person to do certain things in the

premises in the absence of which his business transactions whether or not a person
was tenant or license depends entirely on existence of exclusive possession. In
family relations the question of exclusive possession is not crucial or the mere fact
there is exclusive possession does not make the landlord – tenant relationship.

Where a servant occupies his master’s premises because that is regarded by the
nature of his duties there is merely a service occupancy and the occupant is a license.

2. Tenancy 18
 Types of Licences

1. Bare Licence: This is one where no consideration has been given. It is always
revocable and the revocation does not amount to a breach. However, the
licensor has to give reasonable time to the licensee to clear off. It does not
bind successors in title to licence.

2. A Licence Protected by Estoppel or Equity

The licensor is estopped from denying the type of a license he granted to a

licencee i.e he had made a promise to the licencee. Such a licence is binding
on successors’ in title and whoever will be the purchaser.

A licence arising from equity is one in which the licensor is prevented from
revoking the licence having regards to a promise he had earlier made.

The difference between equity and estoppel is that in equity there is a belief
in the licencee that the licence will not be revoked and in estoppel the licensor
is trying to back out from a promise he entered into with the licence.

A licensor is a constructive trustee. This arose in the case of Binions Vs

Evans 1972 Chancery ) in the case a certain company owned land and on
the land an employee resided there. The employee died living a widow.
The company sold the land to the purchaser and the conveyance was a term
that the widow was to have a life estate. The effect of the estate was to
effect the price of the land. The purchaser wanted to evict the widow. The
court held that there was a licence which could not be revoked and which
was binding on successive purchase.

3. Licence Coupled with an Interest

This is the one exercised for the purposes of enjoyment of the interest which
a licencee has on land of the licensor

2. Tenancy 19
 Profits a prendre
Here the licensee has profits on the land of the licensor, and you can only
enjoy this profit when there is a condition to enter the premises for the
purposes of enjoying the profits.

4. Contractual Licence

There is a consideration here, and hence there is a binding contract that he

won’t revoke the licence whilst in all others the question of revocability
is not discussed.

5. The Matrimonial Homes

In a number of cases the court has held that the wife has a revocable licence in a
house of her husband and the licence is binding on nay purchaser of a house who
has notice of the licence. The licence can be revoked on either divorce or commission
of a matrimonial offence e.g. adultery. The case of National Provincial Bank Ltd
Ainsworth 1965 AC P1175. This case over ruled earlier decisions. In this case the
husband had deserted a wife and later alone conveyed the house to a certain
company. The company charged the house for a loan to the bank.

When the company failed to pay the loan the bank sued for possession of the house.
It requested the wife to vacate the house so that it may sale the house to realise the
unpaid loan. The court held that the bank was entitled to possession and the wife
was not a licensee. She had no right either in the land or the house itself unless
they had jointly contributed the money for the purchase of the house. A wife
remains in a matrimonial home as a result of the status of marriage. She is not a
trespasser. She is not a licensee of her husband. She is lawfully there as a wife.
Providing the wife’s marital rights and nothing safeguarded her in some way, the
court would not refuse to evict the wife.

2. Tenancy 20
 Leases and Tenancies

At common law a lease could be created orally by parole agreement in writing or

by deed. There was no requirement that a lease be in writing except in cases of
incorporeal rights (easement e.g. right of way). By statute of frauds of 1677 every
lease was requested to be in writing and signed by the parties creating it. Only
exception is in case of a lease of less than 3 years period. This could be made
orally. The real Property Act 1845 required all those leases frauds to be made by
deed, non conformity with formalities rendered it void at law.

Types of Leases

1. Leases for fixed period- Here the date of commencement and the date of
determination of the lease are fixed. There must be certainty and if the
duration of the lease depends on someone naming the term then the term
must be named prior to commencement otherwise it will be void due to
uncertainty.

2. Leases for yearly period- This continues from year to year and unless it is
determined by notice, it will continue indefinitely. It arises where by express
terms or by implication a lease has been entered into and payment of rent
is calculated by reference of the term of months notice and its determined
at the end of the year in which this lease is to finish.

3. Periodical leases

These continue from one time to another unless determined by notice which
is of the duration of the lease itself. Weekly, monthly, quarterly

4. Tenancy at will

It arises whenever the tenant occupies the land with the consent of the landlord
under the terms that a tenant or landlord may determine the tenancy any
time. It is common that no rent is payable or else it will be converted into a
different type of lease. The conditions which have to be fulfilled are that there
must be consent of the landlord and the lease may be determined by either
the tenant or the landlord depending on the terms of the tenancy. But tenant
can pay some compensation to landlord for occupying of the premises.

2. Tenancy 21
 5. Tenancy at sufferance

Strictly this is no tenancy at all since there is no privity of tenancy. It is

opposed to a tenancy at will since the land lord does not consent to a person’s
possession after the determination of the previous lease.

6. Lease by Estoppel

Estoppel prevents someone from denying what he has already done.

ESTOPPEL
(estopped) A bar which precludes someone from denying the truth of a fact which
has been determined in an official proceeding or by an authoritative body. An
estopple arises when someone has done some act which the policy of the law will
not permit her to deny.

In certain situations, the law refuses to allow a person to deny facts when another
person has relied on and acted in accordance with the facts on the basis of the first
person's behavior.

There are two kinds of estoppel.

Collateral estoppel prevents a party to a lawsuit from raising a fact or issue which
was already decided against him in another lawsuit. For example, if Donna obtained
a paternity judgment against Leroy and then sued him for child support, Leroy would
be collaterally estopped from claiming he isn't the father.

Equitable estoppel prevents one party from taking a different position at trial than
she did at an earlier time if the other party would be harmed by the change. For
example, if after obtaining the paternity judgment, Leroy sues Donna for custody,
Donna is now equitably estopped from claiming in the custody suit that Leroy is not
the father.

2. Tenancy 22
 A tenant is estopped from questioning the title of the landlord to the land or
his own title to the land in the same way as the landlord is estopped from
questioning the title of the tenant to the land. Lease by Estoppel only binds
the parties to it and successors in title.

7. Perpetually renewable leases

These renew themselves on certain conditions in English law they have cut
down and may not exceed 21 years but in Zambia they may continue
infinitum.

ESSENTIALS OF A LEASE

Every lease must be in writing and signed. This is according to the statute frauds of
1677. The written agreement must include the following terms

i) Names of the contracting parties

ii) Property to be let
iii) Length of the term for which the lease is granted and the date of
commencement
iv) The rent and preferably when it is to be paid
v) Any special convenant (conditions)

William Jacks and Company against O’Connor 1967 ZLR

As regards duration of leases in Zambia Section 5 of the Land (conversions of titles)

Act provides for statutory leases of 100 years and any other leases for 99 years. A
lease must exist for a time term certain or for a time which can be rendered certain.
Hence it is not possible to create a lease for the duration of a war. The world’s term
of years certain were constituted in the case of S.J. Patel (Zambia) ltd against
Bancroft pharmaceuticals ltd (1924 ZLR) to mean a term certain not exceeding 21
years and include a term certain of less than one year. Thus even a term certain of

2. Tenancy 23
 less than a year is included. This is specifically for Business Premises. It can be for
99 years to 100 years for any other leases.

Rights and Obligation of Landlord and Tenant

These can be considered fewer than 3 situations

i) The parties have agreed upon express terms of the lease

ii) Certain terms classified as usual converts exists
iii) Statutory terms exist e.g. under the rent Act

1) Where there are No Express Terms-:

The landlord’s obligation

a) Implied covenant for quiet enjoyment

There is an implied guarantee by the landlord that “no one is going to disturb
the tenants in the enjoyment of the land. Its not personal enjoyment. The
quiet refers to the tenants not being disturbed by someone claiming title
to the land. Its not affected by noise and the covenant does not include the
right of privacy. The question of quiet covenant only affects the landlord
and those claiming lawfully under him. As limitation the tenant has no
complaint if he is evicted by someone with title paramount (one with a
better title than him). The convenant may be broken if for instance the
landlord tries to drive out the tenant by threats or breaking doors.

b) Obligation not to derogate from the grant

Derogation from the grant is doing something inconsistence with the existence
of the grant. The landlord should not do something which will make the tenant
unable to enjoy his property for instance cut off water or electricity supply.
The right of privacy is not covered. Letting premises next door to a trade rival
does not amount to a derogation from the grant.

2. Tenancy 24
 c) Implied covenant that the premises are fit for the purpose

This is for situations where the premises are a finished house or lettings. It
must be fit for human habitation. In the converse it can be said that the tenant
has the right not to be derogate from the grant etc.

The Tenants Obligation

1) Rent Payment

If the tenant fails to pay rent the landlord may either sue for the money or he
may distrain the rent. [The landlord seizing certain goods from the tenants
premises] – this was the only thing to do at common law. The distress for
Rent Act 1689 gave right in the landlord to sell the property after being in
possession for five days. You could not seize growing crops perishables, tools
of trade and clothes.

Impound breach – where the tenant interferes with the goods which have been
seized the landlord could sue and the recovered money known as trebble
damages. A tenant has a right to rescue the goods after seizure [Replevin-
this is paying so that the goods are recovered after they are impounded
but before they are sold]

2. Tenancy 25
 2) Obligation not to commit waste

There are various kinds of waste namely ameliolating waste, permissive

waste, voluntary waste. Waste consists of any act or omission which alters
the physical character of the land whether for the better or for the worse.

a) Ameliolating waste- This is a change which amounts to the

improvement in the physical character of the land. The landlord will
not normally complain.

b) Permissive waste- This is where the tenant has failed to do what he

ought to have done, i.e he has permitted decay or disrepair of
premises. There is an omission here.

c) Voluntary waste- This is where the tenant has done something which
deteriorates the condition of the premises or his act damages the
premises. There is a commission here.

d) Equitable waste This consists of acts of wanton destruction (eg.

Stripping the roof, cutting of trees planted to provide shelter, pulling
down the house etc). It is recognised under the law of equity that the
tenant should keep the premises in the same way in which he would
have kept them had he been the owner of the premises.

There is a distinction in how the law of waste affects the tenants. A tenant for a fixed
period is liable both for permissive and voluntary waste unless there is a contrary
term in the lease. A yearly tenant is obliged to keep the premises in tenants like
manner or he will be liable for committing voluntary waste. For periodical tenancy
the duty is on the landlord to keep the premises in repair , all the tenants does is to
use the premises reasonably so as to prevent them falling under disrepair. Tenants
at will and tenants at sufferance are only liable for voluntary waste. A tenant has an
obligation to allow the landlord to come and review the state of repairs of the
premises. The law on waste protects the interest of those who have remained in the
reversion. This is so because if the land is changed for the worse the ones with the
rights in reversion will not be able to enjoy the land or premises after the tenancy
has expired. As a contrast to this, the law on emblement on the other hand is intended
to safeguard the interests of the tenant after the determination of the lease so that
he may invest in the land he will reap the benefits of his investment.

2. Tenancy 26
 3) Tenants right of emblements

Emblement are growing of crops on the land of the landlord sown by the
tenant. Since they are supposed to be part of the land if the tenancy ceases he
is supposed to leave them when he vacates the land. The tenant has the right
to remove the crops and reap the benefits of his investment. The tenant’s right
is however limited, firstly the tenant should not be the one responsible for
the termination of the lease. Secondly, tenants at sufferance are not entitled
to embracement and so are tenants for a fixed term of years. This is because
they know when the tenancy will end.

4) Estovers

In English law, an estover is an allowance made to a person out of an estate,

or other thing, for his or her support. Estovers for example may be wood, that
a tenant is allowed to take, for life or a period of years, from the land he holds
for the repair of his house, the implements of husbandry, hedges and fences,
and for firewood.

A tenant for years and a tenant for life is entitled to estovers so long as the
need or use is responsible and necessary . Estovers is wood which a tenant
is permitted to make use of for instance for domestic purposes. The tenant
also has the right to remove fixtures. Certain fixtures do not become part of
the land as such and may be removed by the tenant e.g. if fixing it to the land
was the only way it could be enjoyed, trade fixtures , domestic fixtures ,
agricultural fixtures and ornamental fixtures.

Usual Convenant

In determining what is usual one looks at the agreement and the character
of neighbourhood. The usual convenant on part of the landlord are as
follows-:

i) A covenant of quite enjoyment- This is usually in its qualified form

i.e extending only to the acts of lessor or the rightful acts of any
person claiming for or under him. One part of the tenant, there is
firstly the convenant to pay rent. Rent must be certain although not
necessarily at the date of the lease but rather at the time of payment.

2. Tenancy 27
 The landlord may enforce payment directly by an action for money or
distress and in directly by threat forfeiture close.

ii) Covenant to repair- In long leases the tenant usually convenant is to

do all repairs and in short lease the landlord assumes liability for
external and structural repairs. Subject to this in every case the matter
is one for negotiations. The state of repair is viewed at the time of
entering. Fair wear and tear refers to the deterioration to premises as a
result of ordinary use of the premises or natural causes. The tenant is
not obliged to make repairs but is obliged to prevent consequences
following natural causes factors like age, character and locality of
premises , class of tenant are considered in determining whether have
been kept in repair reasonably suitable for occupation.

iii) Covenant against assigning and subletting: If the lease is silent on

the matter tenant is NOT entitled to assign or sublet premises without
landlords consent. However, a convenant against assignment is often
inserted in a lease. If a tenant subleases, the landlord is entitled to
determine the lease and can evict the subtenant but if the landlord
consents to sublease he has only got a remedy against a tenant and
not against a subtenant.

Determination of a lease

i) By effluxion of time
This only applies to leases for a fixed periods. No notice is needed unless
otherwise express is provided.

ii) By notice
This is only relevant for yearly and periodic leases. In yearly tenancies six
months notice is required, in periodic leases the period of a lease itself.
Notice must be certain that is exact date of determination must be named

iii) Forfeitures
This arises by not fulfilling any of the conditions or convenant in a lease.
The difference between a condition and a convenant is that a breach of a
convenant gives rise to the right to claim damages whereas breach of a
condition results in determination of a lease hence the question of adding a
forfeiture clause will not arise where there is a breach of a condition

2. Tenancy 28
 although it is necessary in relation to a convenant of rent as an exception.
The landlord has to forfeit peacefully.

iv) Merger
This applies where tenant acquires the remaining extent of a lease. Other
mode of determining the lease includes by surrendering, satisfaction of the
term and by disclaimer.

Distress for Rent

At common law chattels remained as a pledge in the hands of the party making the
distress and could not be sold. This is still valid law even at now although the statute
has given the distrained power of sale if certain conditions are satisfied. These
conditions are found in the Distress for Rent Act 1689. There are certain requisites
for the landlord to levy distress firstly of the landlord –tenant agreement must exist
at the time of distraining. Secondly, the rent must be certain and in arrear. Thirdly,
the right to distrain may be prohibited by an agreement express or implied not
to distrain by action amounting to estoppel on the part of the landlord. Fourthly,
under section 14 of the Rent Act there must be leave of the court. As regards the
procedure, distress can only be levied by the landlord personally or by a certified
bailiff. And it may be done at anytime during the day. It is also confined on the land
which is demised. Making a distress itself constitutes a demand hence actual
previous demand is unnecessary. The distraner may use any means to enter the
premises although illegal entry renders the distress void. The tenant must be served
with the notice of distress stating the rent due, the particular of goods seized , time
and when the goods will be sold. This notice must be in writing.

Goods to be Distrained

At common law all goods and chattels on premises could be distrained. However,
there were certain exceptions on personal chattels. There are certain goods which
are absolutely privileged e.g state property, diplomatic property, trade goods,
fixtures, perishables and goods in custody of law. Some goods were conditionally
privileged, these include tools of trade, husbandry and livestock. Some clothes
beddings and tools of trade must be left out.

2. Tenancy 29
 Remedies

If the distress is illegal due to distraining after tender of rent or distress at right,
breaking open outer door or window or distraining things which are privileged the
remedies available are
- an injunction to restrain the landlord
- Lawfully rescuing the goods impounded or sue the distrainor in
damages for full value of the goods taken without deduction or rent due.

Irregular Distress

This is constituted by selling without notice, selling for otherwise than the best price,
selling before the statutory period of five days and where the distress is levied by
anybody other than the landlord or bailiff. Here the remedy available for the tenant
is to sue for damages and only proved special damage may be recovered.

Excessive Distress

This is where the goods seized are disproportionate to the rent due to other words
where there is no evaluation of the goods distrained. The remedy available is the fair
value of the goods after deducting the rent due. Damages may also be awarded for
loss of use and enjoyment of the excess taken away and any inconveniences caused.

Leasing

Leasing is a process by which a firm can obtain the use of a certain fixed assets for
which it must pay a series of contractual, periodic, tax-deductible payments.
The lessee is the receiver of the services or the assets under the lease contract and t
he lessor is the owner of the assets.
The relationship
between the tenant and the landlord is called a tenancy, and can be for a fixed or an
indefinite period of time (called the term of the lease). The
consideration for the lease is called rent.
Under normal circumstances, a freehold owner of property is at liberty to do what t
hey want with their property, including destroy it or hand over
possession of the property to a tenant. However, if the owner has surrendered posse

2. Tenancy 30
 ssion to another (the tenant) then any interference with the
quiet enjoyment of the property by the tenant in lawful possession is unlawful.
Similar principles apply to realproperty as well as to personal
property, though the terminology would be different. Similar principles apply to
sub-leasing, that is the leasing by a tenant in possession to a sub-
tenant. The right to sub-lease can be expressly prohibited by the mainlease.

Term
The term of the lease may be fixed, periodic or of indefinite duration.
If it is for a 'tenancy for years', the term ends automatically when the period expire,
and no notice needs to be given, in the absence of legal requirements.
The term's duration may be conditional, in which case it lasts until some specified
event occurs, such as the death of a specified individual.
A periodic tenancy is one which is renewed automatically, usually on a monthly,
weekly or on annual basis.
A tenancy at will lasts only as long as the parties wish it to, and may be terminate
d without penalty by either party.
It is common for a lease to be extended on a "holding over" basis, which normally
converts the tenancy to a periodic tenancy on a month by month basis.

Rent
Rent is a requirement of leases in common law jurisdiction, but not in civil law jur
isdiction. There is no requirement for the rent to be a
commercial amount. "Pepper corn" rent or rent of some nominal a
mount is adequate for this requirement.

Real estate
There are different types of ownership for land but, in common law states, the most
common form is the 'Fee Simple absolute', where the legal
term fee has the old meaning of real property, i.e. real estate. An owner of the 'fee s
imple' holds all the rights and privileges to that property
and, subject to the laws, codes, rules and regulations of the local law, can sell or by
contract or grant, permit another to have possession and

2. Tenancy 31
 control of the property through a lease or tenancy agreement. For this purpose, the
owner is called the lessor or landlord, and the other person
is called the lessee or tenant, and the rights to possess and control the land are exc
hanged for some payment (called 'consideration' in English
Law), usually a monthly rent. The acceptance of rent by the landowner from a tena
nt creates (or extends) most of the rights of tenancy
even without a written lease (or beyond the time limit of an expiring lease).
Although leases can be oral agreements that are periodic, i.e.
extended indefinitely and automatically, written leases should always define the
period of time covered by the lease.
A lease may be:

• a fixed-term agreement, in other words one of these two:

• for a specified period of time (the "term"), and end when the term expires;
• conditional, i.e. last until some specified event occurs, such as the death of a
specified individual; or
• a periodic agreement, in other words renewed automatically
o usually on a monthly or weekly basis
o
o at will, i.e. last only as long as the parties wish it to, and be terminated without pen
alty by either party.

Because ownership is retained by the lessor, he or she always has the better right to
enforce all the contractual terms and conditions affectingthe use of the land. Norm
ally, the contract will be express (i.e. set out in full and, hopefully, plain language),
but where a contract is silent orambiguous, terms can be implied by a court where
this would make commercial sense of the transaction between the parties. One imp
ortantright that may or may not be allowed the lessee, is the ability to create a suble
ase or to assign the lease, i.e. to transfer control to a third
party. Hence, the builder of an office block may create a lease of the whole in favo
ur of a management company that then finds tenants for the
individual units and gives them control.
Under common law, a lease should have three essential characteristics:

1. A definite term (whether fixed or periodic)

2. At a rent
3. Confer exclusive possession

2. Tenancy 32
 Real property
Whether it is better to lease or buy land will be determined by each state's legal and
economic systems. In those countries where acquiring
title is complicated, the state imposes high taxes on owners, transaction costs are hi
gh, and finance is difficult to obtain, leasing will be the best
norm. But, freely available credit at low interest rates with minimal tax disadvanta
ges and low transaction costs will encourage land ownership.Whatever the system,
most adult consumers have, at some point in their lives, been party to a real estate l
ease which can be as short as a
week, as long as 99 years, or perpetual (only a few states permit ownership to be al
ienated indefinitely). For commercial property, whether
there is a depreciation allowance depends on the local state taxation system. If a lea
se is created for a term of, say, ten years, the monthly or
quarterly rent is a fixed cost during the term. The term of years may have an asset
value for balance sheet purposes and, as the term expires,that value depreciates. Ho
wever, the apportionment of relief as between business expense and depreciating a
sset is for each state to make
(all that is certain is that the lessee cannot have a double allowance).

Private property
Rental, tenancy, and lease agreements are formal and informal contracts between a
n identified landlord and tenant giving rights to both parties,e.g. the tenant's right
to occupy the accommodation for an agreed term and the landlord’s right to receive
an agreed rent. If one of these
elements is missing, only a tenancy at will or bare licence comes into being. In
some legal systems, this has unfortunate consequences.When a formal tenancy is cr
eated, the law usually implies obligations for the lessor, e.g. that the property meets
certain minimum standards of habitability.
A tenancy agreement can be made up of:

• express terms. These include what is in the written agreement (if there is one), in th
e rent book, and/or what was agreed orally (if there is
clear evidence of what was said).
• implied terms. These are the standard terms established by custom and practice or t
he minimum rights and duties formally implied by law.

2. Tenancy 33
 Comparison of buying and leasing
There are many distinct differences between buying and leasing, regardless if such
a transaction or agreement applies to property, machinery,
equipment or other assets.
The difference lies in that a lease is conceptually very similar to the principle of “b
orrowing.” The ownership of the leased property (be it land,equipment, merchandis
e, or etc.) is not transferred under the terms of the lease agreement. The lease gives
the lessee the right to use the
assets covered under the agreement for the duration of the contracted term, howeve
r, upon the completion of said term the lessee is required
to return the assets in question to the lessor, thereby completing the terms of the
agreement. In a general example having to do with an
automobile lease, the vehicle is due back to the dealership at the conclusion of the l
ease term. Once the vehicle is returned, the automobilelease agreement is complete
d and the parties (lessor and lessee) separate with no further obligations to each oth
er (assuming there is nodamage on the vehicle entitling the dealer to some further c
ompensation). The lessee has no further claim or right to use the vehicle and the
lessor, or car dealer no longer collects any payment from the former lessee – the pr
evious driver.
Many lease agreements contain clauses and addendums that outline additional right
s, or options for the lessee, to be exercised at will upon
the conclusion of the lease (there are numerous equipment lease types with individ
ual features). In automobile leases as a generalexample, a lessee may have an optio
n to purchase the vehicle, thereby restructuring the agreement and ultimately obtai
n the ownership of theasset previously leased. In the example of a property lease, t
he renter (or lessee) may have the option to extend the lease, under pre-
determined terms. Such scenarios are numerous and are typically pre-
set during the initial creation and negotiation of the agreement betweenthe parties.
Purchasing, on the other hand, involves an agreement that outlines the terms under
which the purchaser acquires ownership of the desireditem, property or asset. The
purchase agreement delineates the purchase price and the terms under which it is to
be paid for by the buyer. Theoverall purchase price can be amortized over a period
of time as in the case of financing, or it can be paid in full, resulting in the instanttr
ansfer of ownership to the purchaser. In the event that the purchase is financed ove
r a period of time, the ultimate price paid for the item orasset can be greater than th
e original price due to interest. For an individual deciding between buying or leasin
g, it is crucial to understand the pros and cons of each.

2. Tenancy 34
 CUSTOMARY LAND TENURE

The word tenure in law relate to the legal rules regulating the acquisition, the
distribution of rights and the use of land amongst a specific population. In Zambia the
land tenure system varies from one area tenure to another due to difference in the
customary authorities.

At present Zambia has two systems of land tenure altogether, land may either be held
under statutory law or under customary law and hence the two categories of land
namely, state land and customary land. For state land this may either be scheduled or
non-scheduled land depending on whether the particular land appears in the schedule to
the agriculture land Acts Cap 292. The customary land is what was basically trust and
reserves, this is called customary land. Customary land because the interests in these
lands are held under customary law.

CUSTOMARY TENURE
• Customary Land is Land held, occupied or used under Customary Law according
to the Malawi Land Act 1965.

• However, the pocket law lexicon defines custom as “unwritten law established
by long usage”.

• Customary tenure is sometimes referred to as communal tenure. The word Tenure

comes from a Latin word ‘tenere’ which means ‘to hold’.

• The implication of this, in the case of land tenure is that land is held under certain
given conditions. Variations in conditions of tenure do exist though. For example
the occupier may not necessarily be the land owner, and vice versa that the land
owner may or may not be the occupier. Therefore considering the nature and
conditions of tenure, the expression ‘land tenure’ can be seen as a wide one.

• It may incorporate in its wide range of meanings the ownership of land, or the
right to use land without owning it, or something in between the two extremes.
Sir G. Clauson offers the meaning of communal tenure as implying;

“…. That the enjoyment of rights in question, whatever they be, is not
exclusive to one individual but is shared collectively by a community, that is,

3. Introduction to Customary Tenure 35

 a tribe, village, or other group of persons, by reason of kinship or residence
in a particular area.”

This may be perceived to mean that communal land is owned by the community or tribe.
This however, may not truly reflect the picture of customary tenure on the ground as
Elias observed and acknowledged;

“ Since the relation between the groups and the land is invariably
complex in that the rights of individuals’ members often co-exist with those
of the group in the same parcel of land. But individual members hold
definitely ascertained and well recognised rights within the comprehensive
holding of the group” (Elias 1951).

• Finally evidence from studies done by White on African Land Tenure in Zambia
emphasizes the proprietary character of rights, and he criticised the use of
expression of ‘communal tenure’ to imply that every community member has
equal rights in every piece of tribal land. His investigation led him to the
conclusion that rights over arable land are essentially individual (White: 1958).

• At this stage it is important to clarify the context in which the interchange of

words between communal, and customary (or tribal). It is universal for land
rights, whatever, they may be to be subject to some kind of external control.

• This external control may be exercised by the state, or like in primitive ancient
days by an individual such as a King or a group of individuals, or as in other
ancient communities by the custom or religious laws.

• Communal is therefore used in the context of community influences whereas

customary is used in light of influence emanating from customs. Therefore
customary is always communal although communal may not necessarily be
customary.

• Customary tenure is one of the controversial concept.

• The nature of ownership, and title to land of customary tenure has raised
considerable debate.

3. Introduction to Customary Tenure 36

 • Studies have failed to come up with conclusive agreement as to who owns the
land in customary law, between the chief and the individual clan member. Issues
are further pushed as to the exact nature of interest the chief enjoys as opposed to
the clan member. However, the truth of the matter is that the diversity of
customary tenure dictates that there can hardly be one answer to any one question
on the nature of customary tenure.

• For instance, Zambia is country of 73 language groups (tribes), and within each
of these language groups there are variations in customs, beliefs and cultural
practices. Therefore, an attempt to try a generalisation on customary tenure would
underpin the issue and likely result in confusion. That is why Sir Simpson (1976)
wisely chose not to offer a definition of customary tenure. United Nations
provided one as :

The rights to use or dispose of use-rights over land which rests neither on
exercise of brute force, nor on evidence of rights guaranteed by government
statute, but on the fact that they are recognised as legitimate by the
community, the rules governing the acquisition and transmission of these
rights being usually explicitly and generally known though not normally
recorded in writing (Progress in land reforms; Fourth report: 1966)

The United Nations’ definition raises a chain of questions. It leaves open the question
of how the standard rules relating to land are arrived at, and introduces an element of
controversy by declaring that the rules are explicit. It is suggested that most of the
communal tenure rules are seen as being implicit rather than explicit for instance it is
common practise for individuals to avoid taking up an already opened up field in
customary land as this implies that land is already engaged and owners of such fields
don’t need to go around villages advertising that the field in such and such a place
belong to them. Conversely virgin lands and derelict lands implies vacancy to would be
occupiers.

Though the customary tenure is diverse, there are characteristic features which are
standard. The operative feature of customary tenure is best summed up in the much
quoted saying of a West African Chief by Meek:

3. Introduction to Customary Tenure 37

 “Land belongs to a vast family of which many are dead, few are living, and
countless numbers are still unborn” (Meek: 1968)

Generally, customary tenure in Africa is based on tribal ownership of land. It may be

wise at this juncture to first explore, and try to understand the concept of tribe. The
concept of tribe is actually one with dual meaning. The black African understands tribe
to mean an ethnic or language group. However, the implied meaning and use of the
word by colonialist went further than that. The term tribe has been used to denote an
early stage in social evolution moving from; the band, the tribe, the chiefdom and the
state. The classification starts with the band as the most primitive and lowest of the
social scale going up through the tribe, the chiefdom and finally the state. A tribal
society is therefore seen basically as primitive and backwards. This is further illustrated
in Sibanda’s sentiments on colonial Zimbabwe:

“For once the Africans are characterised in the tribal category, their role in
society is defined. Hence the Godlonton Commission of 1944 could make two
broad categorisations of the total population of Rhodesia: ‘forward peoples’
who were to be the leaders or rulers – the Europeans generally; and the
‘backward peoples’ , those to be led or ruled – the Africans generally. White
domination is thus not only justified, they are in fact charged with the
responsibility (or duty) to ‘help’ the Africans out of their archaic mode of
existence, towards ‘civilization’ which the Europeans have come to
epitomise” (Sibanda C. J. :1979)
Therefore Colonialist affiliated authorities writing about communal tenure tend to
propagate the idea that communal tenure is primitive and out dated as supported by
Liversage:
“In advanced communities land is regarded as form of property, the ultimate
ownership of which must rest with some person or somebody. Amongst the
most primitive communities it is not so; where sufficient space remains at
the disposal of the population, land is considered a free good like fresh air”
(Liversage V. : 1945)
The expressed sentiments portrays a sensible notion on the care and use of land in
‘advanced communities’. However, what Liversage seem not to have taken into
consideration on the part of ‘primitive communities’ (customary tenure) as widely
acknowledged is that customary tenure is dynamic, and very adapted to changing needs
for instance where land starts to get scarce, the rules change to suit the needs (for

3. Introduction to Customary Tenure 38

 example the Tonga of Zambia as established by Colson E. 1966, and also as reported by
FAO (1967):
Customary land law does seem to have inhibited the phenomenal increase in
recent years in the production of cash crops in certain African countries.
Meeting the challenge of cash economy, it has adapted and adjusted itself.
Communal land tenure has generally been associated with primitive societies, and
people tend to think that as civilization develops such communities should of necessity
abandon the institution of communal land tenure. Such notions are biased and narrow
minded because there exist forms of very successful communal holdings in the world
today in some of the very technologically advanced, and so called civilized communities
like Switzerland, Israel, Eastern Europe and China.

It has always been contended that the difficult with the Customary system of land tenure
lies;
• in its impression as to title,
• lack of security of tenure,
• lack of freedom of alienability and
• its being prone to fragmentation and parcellation.

CUSTOMARY LAND TENURE

The word tenure to the legal rules regulating the acquisition, the distribution of rights
and the use of land amongst a specific population. In Zambia the land tenure system has
varied from one area tenure to another due to difference in authorities in.

At present there about two different systems altogether, land may either be held under
customary law or under statutory law and hence the two categories of land namely, state
land and customary land. For state land this may either be scheduled or non-scheduled
land depending on whether the particular land depending on whether the particular land
appears in the schedule to the agriculture land Acts Cap 292. This customary land is
what we basically trust and reserves we call them customary land and reserves. We call
them customary land because the interests in these lands are held under customary law.
It has always been contended that the difficult with the

Customary system of land tenure lies in its impression as to title, lack of security of
tenure, lack of freedom of alienability and its being prone to fragmentation and
parcellation.

3. Introduction to Customary Tenure 39

 Ownership of land in Customary tenure

Land rights are acquired by virtue of membership in a particular tribe and once an
individual is a member he becomes entitled to a piece of land. However, these rights are
mentioned only if certain obligations are fulfilled. These are allegiance to the political
authority. Rights in land should be differentiated from the title to land. Acquisition of
rights in land does not imply acquisition of title to such piece of land. In most tribal
societies in Zambia title to land is vested in the community as a whole and the chief
holds this land as a trustee for all the people hence the chief has interests of control
whilst the individual members of the community have beneficial rights. In other trades
society’s title is vested in family groups. Here the family owns the land although the
interests in such land are held by a member of the family. Although title may be vested
in the community as a whole or the chief as trustee for the community, the interests
acquired by individuals are distinct and exclusive. These interests will endure for as
long as their heirs succeed him unless he effectively abandons the land. Hence the
interests are so well established that they only fall shorts of freehold title.

ALLIENABILITY OF CUSTOMARY LAND

Another feature of customary land tenure i.e. say to inhibit both commercial and
industrial development is the lack of freedom of alienability. An individual will be
reluctant to invest in land where he may not realise his investment if he must move. In
most tribal societies in Zambia however, there are no restrictions on the transfer or
assignment of land by one individual to another. Land may be assigned by loan or gift
without reference to any land authority. It is only in society where clans are the lands
holding units that there is need to consult the other members of the clan. This form of
alienation however is confined to the UN exhausted improvement on the land which can
be sold as opposed to the land itself. In some tribal communities another form of
alienation of land by individuals exists. Here an individual may allot a portion to his
dependant who then proceeds to cultivate the plot. Here there is no actual transfer of the
ownership of the land at all.

Customary Ownership of land

Land rights are acquired by virtue of membership in a particular tribe and once an
individual is a member he becomes entitled to a piece of land. However, these rights are
mentioned only if certain obligations are fulfilled. These are allegiance to the political
authority. Rights in land should be differentiated from the title to land. Acquisition of
rights in land does not imply acquisition of title to such piece of land. In most tribal
societies in Zambia title to land is vested in the community as a whole and the chief
holds this land as a trustee for all the people hence the chief has interests of control

3. Introduction to Customary Tenure 40

 whilst the individual members of the community have beneficial rights. In other trades
society’s title is vested in family groups. Here the family owns the land although the
interests in such land are held by a member of the family. Although title may be vested
in the community as a whole or the chief as trustee for the community, the interests
acquired by individuals are distinct and exclusive. These interests will endure for as
long as their heirs succeed him unless he effectively abandons the land. Hence the
interests are so well established that they only fall shorts of freehold title.

ALLIENABILITY OF CUSTOMARY LAND

Another feature of customary land tenure i.e. say to inhibit both commercial and
industrial development is the lack of freedom of alienability. An individual will be
reluctant to invest in land where he may not realize his investment if he must move on.
In most tribal societies in Zambia however, there are restrictions on the transfer or
assignment of land by one individual to another. Land may be assigned though by loan
or gift without reference to any land authority. It is only in society where clan members
with land holding units that may need them to consult the other members of the clan.
This form of alienation however is confined to the UN exhaustive improvements on the
land which can be sold as opposed to the land itself. In some tribal communities another
form of alienation of land by individuals exists. Here an individual may allot a portion
to his dependent who then may proceed to cultivate the plot. Here, there is no actual
transfer of the ownership of the land at all.

THE LANDS (CUSTOMARY TENURE) (CONVERSION) REGULATIONS 2006.

Title
1. These Regulations may be cited as the Lands (Customary Tenure) (Conversion)
Regulations.

Procedure on conversion of customary tenure into leasehold tenure

2. (1) A person-
(a) who has a right to the use and occupation of land under customary tenure; or
(b) using and occupying land in a customary area with the intention of settling there for a
period of not less than five years;
may apply, to the Chief of the area where the land is situated in Form I as set out in
the Schedule, for the conversion of such holding into a leasehold tenure.

(2) The Chief shall consider the application and shall give or refuse consent.

(3) Where the Chief refuses consent, he shall communicate such refusal to the applicant
and the Commissioner of Lands stating the reasons for such refusal in Form II as set
out in the Schedule.

3. Introduction to Customary Tenure 41

 (4) Where the Chief consents to the application, he shall confirm, in Form II as set out in
the Schedule-
(a) that the applicant has a right to the use and occupation of that land;
(b) the period of time that the applicant has been holding that land under customary
tenure; and
(c) that the applicant is not infringing on any other person's rights;
and shall refer the Form to the Council in whose area the land that is to be converted
is situated.

Consideration of the application by the Council

3. (1) The council shall, after receiving the Form referred to in sub-regulation (4) of
regulation 2, and before making a recommendation to the Commissioner of Lands,
consider whether or not there is a conflict between customary law of that area and the Act.
(2) If the council is satisified that there is no conflict between the customary law of that
area and the Act, the council shall make a recommendation to the Commissioner of Lands
in Form III as set out in the Schedule.
(3) The Commissioner of Lands shall accept or refuse to accept the recommendation, and
shall inform the applicant accordingly.

Conversion by council of customary tenure into leasehold tenure

4. Where a council considers that it will be in the interests of the community to convert a
particular parcel of land, held under customary tenure into a leasehold tenure, the council
shall, in consultation with the Chief in whose area the land to be converted is situated,
apply to the Commissioner of Lands for conversion.
(2) The Council shall, before making the application referred to in sub-regulation (1)-
(a) ascertain any family or communal interests or rights relating to the parcel of land to be
converted; and
(b) specify any interests or rights subject to which a grant of leasehold tenure will be made.

Requirement to pay ground rent

5. A person holding land on leasehold after the conversion of such land from customary
tenure shall be liable to pay such annual ground rent in respect of that land as the
Commissioner of Lands may prescribe.

Appeals

6. A person aggrieved by a decision of the Commissioner of Lands may appeal to the Lands
Tribunal.

3. Introduction to Customary Tenure 42

 (Regulations 2 and 3)
FORM I
(Regulation 2)

APPLICATION FORM FOR CONVERSION OF CUSTOMARY TENURE INTO

LEASEHOLD TENURE

Particulars of Applicant
1. Name
2. Postal and Physical Address:
3. Location of land:
4. Size of the land and plan No.
5. Declaration of Rights:

(a) I or my family have had the right to the use and occupation of the land shown on the
plan for a continuous period of ………… years;

(b) I am entitled to or my family's is entitled to (delete as appropriate), the benefit to the

land and I am not aware of any other person's right to the use or, occupation of the land or
part of the land except:
And granting leasehold to me will not affect these rights.

Signed: Date:
Note:

(i) If in occupation for less than five years, describe how the use and occupation of the land began, by
stating the name of the Chief or the Headman who gave you permission to occupy and use the land;

(ii) Prove that the use and occupation of the land is exclusive, by describing the use that the land has
been put to;

(iii) Please attach six layout plans of the land in issue to this Form.

3. Introduction to Customary Tenure 43

 FORM II
(Regulation 2)

APPROVAL OF THE CHIEF OF AN APPLICATION FOR CONVERSION OF

CUSTOMARY TENURE INTO LEASEHOLD TENURE

I ………….……… Chief of ................................... (village) confirm and certify that-

1. I have caused the right to the use and occupation of …………..(property number) by……………..
(the applicant)………………………… to be investigated and the investigation has revealed that the
applicant or his family has for the last …..……. years been in occupation of the land described in the
plan to which plan I have appended my signature.

2. I am not aware of any other right(s), personal or communal, to the use and occupation
of the land or any other part of the land, except that these rights have always been enjoyed by
the community and shall not affect the right of the applicant to the use and occupation of the
land.

3. I have caused the consultation to be made with members of the community.

4. As a result of the consultation and the information made available to me I hereby

give/refuse my approval for the said land to be converted into leasehold tenure.

Signed: Date:

3. Introduction to Customary Tenure 44

 FORM III

(Regulation 3)

APPROVAL OF THE LOCAL AUTHORITY FOR THE CONVERSION OF

CUSTOMARY TENURE INTO LEASEHOLD TENURE

I, ………….…….. , in my capacity as Council Secretary of ……………… District Council confirm

and state that ………..(property number) the land to be converted from customary tenure to
leasehold tenure by the applicant ………..……(name of applicant) falls within the boundaries of
……………...District Council.
AND THAT the said…………...(property number) falls within the Jurisdiction of Chief
…………….. The approval/refusal of the…………….Chief for the land to be converted from
customary tenure to leasehold tenure is herewith attached.

2. The applicant……………….(name) has occupied and has had the right to the use and
occupation of the said land for a continuous period of ………years.

3. I am not aware of any other rights personal or communal to the use and occupation of
the land or any part of the land.

4. As a result of the information available to me, I hereby give/refuse my approval for the
said land to be converted into leasehold tenure.

Signed: Date:

3. Introduction to Customary Tenure 45

4. Customary Land Administration 46
 CONTENTS
1. INTRODUCTION
2. HISTORICAL OVERVIEW OF THE
ROLE OF CHIEFS IN LAND
ALLOCATION
3. CUSTOMARY TENURE IN ZAMBIA
4. CONCLUSION

4. Customary Land Administration 47

 1. INTRODUCTION
 Land, like the other factors of production (labour, Capital
and Technology) is critical to promote development
 By Law All Land in Zambia is vested in the President, both
State Land and Customary Land
 Zambia has 2 land tenure systems , namely Customary
tenure and Statutory (Leasehold) tenure systems.
 94% of land in Zambia falls under Customary tenure ,
while 6% of the Land is Stateland under leasehold
tenure.(These have remained static from 1928 and 1947 in
terms of zone classifications)
 The Lands Act recognizes a dual Land Tenure System.
 Customary Land is administered by the Chiefs using the
African Customary Laws applicable to each Chiefdom,
SUBJECT TO Zambian Laws and natural Justice.

4. Customary Land Administration 48

 Introduction Contd
 Because All Land is vested in the President,
Government has a significant role to ensure
that All Land (Including Customary Land)
is administered in a way which benefits all
Zambians
 Section 5(3) of the Lands Act provides that
“All land in Zambia shall, subject to this Act,
or any other law be administered and
controlled by the President for the use or
common benefit, direct or indirect, of
the people of Zambia”
4. Customary Land Administration 49
 HISTORICAL OVERVIEW OF THE ROLE
OF CHIEFS IN LAND ALLOCATION
 Before the coming of European settlers in 1889, all
land was administered by customary laws in all
Chiefdoms
 With Zambia becoming a protectorate, settlers
assumed powers over land, with both the BSA Co. and
the Governor assuming powers to make dispositions
and grants of Land

4. Customary Land Administration 50

 HISTORICAL OVERVIEW OF THE ROLE OF
CHIEFS IN LAND ALLOCATION
 From 1889, 1911, 1924, 1928, 1947 and 1959 Orders in
Council, through into the Zambia Independence
Order, Land alienation and Administration focused on
the White Settler –Laws were pro-settler
 Land(Conversion of Titles) Act 1975 and Lands Act
1995 both directly and indirectly provided for the
continuation of customary tenure maintaining the
need to consult before customary land is given out

4. Customary Land Administration 51

 CUSTOMARY LAND ADMINISTRATION IN
ZAMBIA
 Customary Tenure is uncoded or unwritten in nature: There is need to
define Customary Tenure
 Section 7 and 8 of the Lands Act recognises Customary Tenure but it is not
defined
 Zambia is a Unitary State with 73 languages
 Customary tenure is more restrictive in terms of application: The
development of some areas into metropolitan Urban Centres has meant
that customary tenure is not able to deal with specific complications
especially affecting non-chiefdom subjects
 Examples of What is in practice that is not allowed by Law
 Selling Land by Chiefs (Not allowed by Law, section 3 of the lands Act
says only the President should collect consideration), Since all land is
vested in the Presidency
 Giving Land over 250 Hectares (i.e. in the process of conversion) Land
Circular No. 1 of 1985.
 Allowing a person who is a non- Zambian/or investor to start utilizing
the land without bothering to notify government authorities
 Getting into a land Agreement with an Investor over Land this is outside
the scope of customary tenure

4. Customary Land Administration 52

 CUSTOMARY LAND
ADMINISTRATION IN ZAMBIA
 Land Circular No. 1 of 1985 places a responsibility on
Traditional leaders to grant consent for any allocation
where the Investor/Applicant wishes to obtain a Lease or a
title, without a deliberate policy
 Under the Lands Act 1995, the consent forms are in a
prescribed form; This is mandatory and cannot be replaced
by a letter or other form of granting the consent
 The siteplan MUST be duly endorsed by the Chief, the
Council under which the Land is situated
 The person recognised as Chief, for purposes of Land
allocation is a gazetted Chief
4. Customary Land Administration 53
 CUSTOMARY LAND
ADMINISTRATION IN ZAMBIA
 Land Circular Limits the size a Chief can
recommend or give to an investor or
applicant to 250 Hectares
 In cases where larger than 250 Ha is given,
Ministerial (250 – 1000ha) and
Presidential Authority (1000ha+) is
required
 Need to consult Indunas; The Supreme
Court has ruled – This has been difficult in
most Chiefdoms
4. Customary Land Administration 54
 OTHER CHALLENGES OF CUSTOMARY
LAND ADMINISTRATION IN ZAMBIA
 Threats of Forgeries and wrong date stamps on
Consent Forms and Siteplans
 Protection of Pastoral/Communal Land and the need
for servitudes (Easements and profits)
 Need for clarity on who should grant the Consent,
ONLY GAZETTED CHIEF and not a Headman
 Cases of Displacement of Villagers
 Villagers are protected by Law against displacement
from their customary land
 Need to know that such villagers can now complain
legally against a traditional leader

4. Customary Land Administration 55

 CUSTOMARY LAND ADMINISTRATION IN
ZAMBIA
 Chiefdom Boundary Disputes and the
need to work with government through the
Office of the Surveyor General: Avoiding to
give land beyond one’s Jurisdiction
 Siteplan preparation complications; Scale
and what is written
 Lands Tribunal Act is now law and will
help all affected parties to seek redress;
Both the traditional authorities and the
subjects
4. Customary Land Administration 56
 CUSTOMARY LAND ADMINISTRATION IN
ZAMBIA
 PROPOSED WAY FORWARD
 THERE IS NEED TO CHANGE THE LAWS AND
ADDRESS THE VARIOUS CHALLENGES FACING
ZAMBIANS.
 HENCE THE NEED IMPLEMENT WHAT THE
PRESIDENT HAS GUIDED THAT SECURITY OF
TENURE MUST BE PROTECTED FOR ALL
CUSTOAMRY AREAS
 IN ADDITION, POLICY AND LEGISLATIVE
ADJUSTMENTS WILL BE REQUIRED.

4. Customary Land Administration 57

 5. CONCLUSION
 Land is Zambia’s Heritage as; Development
happens on land.
 There is a duty placed on the President under
Section 5(3) of the Lands Act to administer
Land in the interest of the Zambian People,
hence the rules and regulations for
Customary Land
 Chiefs are key to ensure the land is properly
administered and all allocations follow laid
down rules and regulations
4. Customary Land Administration 58
 THE END

4. Customary Land Administration 59

 LANDS CIRCULAR NO.1
OF
1986

5. Land Alienation Procedure 60

5. Land Alienation Procedure 61
5. Land Alienation Procedure 62
5. Land Alienation Procedure 63
5. Land Alienation Procedure 64
5. Land Alienation Procedure 65
5. Land Alienation Procedure 66
5. Land Alienation Procedure 67
5. Land Alienation Procedure 68
5. Land Alienation Procedure 69
5. Land Alienation Procedure 70
5. Land Alienation Procedure 71
5. Land Alienation Procedure 72
5. Land Alienation Procedure 73
5. Land Alienation Procedure 74
5. Land Alienation Procedure 75
5. Land Alienation Procedure 76
5. Land Alienation Procedure 77
 LAND REGISTRATION

GEE3522
Prepared by:
D. Mubanga

6. Land Registration 78
 INTRODUCTION

⚫ Sec. 3 (1) – All land vest in the President

⚫ Sec. 3 (2) – the President may alienate land
to any Zambian
⚫ Sec. 3 (3) – or non-Zambian under the
following circumstances;

6. Land Registration 79
 Conditions for non-Zambians

a) Where the non-Zambian is a permanent

resident
b) Where the non-Zambian is an investor
c) Has obtained the Presidential consent
d) Is a Company with at share holdings less
than 25% for non-Zambians
e) Is a statutory corporation created created by
Parliament
6. Land Registration 80
 Conditions for non-Zambians

(f) Is a co-operative society with less than

25% shares by non-Zambians
(g) Registered under the Land (Perpetual
Succession) Act as a non-profit orginisation
(h) - (k)

6. Land Registration 81
 what is alienation?

⚫ Another mode of disposal of state land

– sec 42(1) (a)
⚫ The best mode of disposal;
⚫ Means to convey or give away a right and
title of a piece of state land.

6. Land Registration 82
 Why alienation is the best mode of
disposal?

⚫ Proprietor will get title to the land;

⚫ Period is longer than other mode of
disposal;
⚫ Proprietor feels secured to develop and
invest in the land;
⚫ If land is acquired by Govt for public purpose,
proprietor will get compensation;
⚫ Proprietor can deal with the land.

6. Land Registration 83
 …continue

alienation consists of:

⚫ (a) term not exceeding 99 years; and
⚫ Payment of Consideration;
⚫ Payment of Ground Rent;
⚫ Subject to category of land use;
⚫ Subject to conditions and restrictions in
interest

6. Land Registration 84
 Survey for alienation under final title

When alienation is approved and payment of

land dues are made, title will be issued to the
applicant. Before title can be issued, survey to
the land must first be done.
⚫ ‘Land Surveyor’ will conduct a survey to determine
boundaries
⚫ Survey is approved by Survey General

6. Land Registration 85
 …continue

⚫ The actual area of land for alienation at the

time of approval is provisional i.e not definite
and exact;
⚫ After survey, it may became slightly smaller
or bigger;
⚫ Area should as closer to what is stated on
the siteplan and description to which has
been approved.
6. Land Registration 86
 Final Title

After is done, final title will be issued.

Chief Registrar will determine what forms of
final title to be issued (look at the type of
land);_
⚫ Certificate of Title – Govt.
⚫ Occupancy Licence - Councils

6. Land Registration 87
 What is registration?

After payment of land dues, survey done

(for final title) and preparation of title
completed, registration to be completed.
Registration requires :-
⚫ Authentication (signed), and
⚫ Seal
by the Registrar of Lands

6. Land Registration 88
 THANK YOU

6. Land Registration 89
 Registration of Land
Registration of Land Titles
A system by which ownership of real property is established through the issuance of
an official certificate indicating the name of the
individual in whom such ownership is vested.

Land titles are registered through a statutory process called the Torrens title system,
in somewhat the same way that automobile titles are registered in most states.
Under Torrens system, land ownership can be readily ascertained without any need f
or repeated
examinations of voluminous public records, and the resulting titles are generally secu
re and ready for transaction.

Torrens title
The purpose of the Torrens system is to provide certainty of title to land.

Torrens Title is a South Australian invention that revolutionised the method of

recording and registering land ownership. It is a system where land ownership occurs
when the document that transfers ownership of the property is filed at the local Land
Titles Office. The purpose of the Torrens system is to provide certainty of title to land.

The Torrens Title System was first introduced in South Australia in 1858, and
subsequently used in other Australian states and around the world. Torrens Title is
named after its inventor, Sir Robert Richard Torrens, who was instrumental in the
implementation of this unique and efficient system of dealing with land. The system
resulted from Sir Torrens' desire to improve on the old English land law system which
was very complex, time consuming and expensive.

The main object of the Torrens Title System is to make the register conclusive. Once
your name is registered on the Torrens Title register, you become the owner of the
property to the exclusion of all others. You therefore obtain ‘title by registration',
which is a pivotal concept of Torrens Title.

Under the system, a Certificate of Title exists for every separate piece of land. The
certificate contains a reference that includes a volume and folio number, ownership
details, easements and/or rights of way affecting the land and any encumbrances
including mortgages, leases and other interests in the land.

6.1. Torrens System of Registration of Land 90

 Torrens Title is useful because it eliminates grounds for most dispute litigation, avoids
the consequences of lost certificates and greatly reduces the costs of land sale and
transfer. People can change the Torrens Register through lodging and registering a
‘dealing'.

Normally, the person who is recorded as the owner of a parcel of land cannot have
their title challenged or overturned. This concept is known as 'indefeasibility' of title’.
There are, however, a few exceptions to this general rule such as if the land was
registered fraudulently.

Upon registration of the decree, a designated officer, ordinarily called the registrar o
f titles, makes and files the original certificate of title
in the proper register. A duplicate of the certificate must be delivered to the registere
d owner. Once this procedure has been completed, the
land becomes registered land. Any subsequent transfers and dealings regarding it m
ust be made according to statute.

Torrens title is a system of land title where a register of land holdings is

maintained by the state, it
guarantees an indefeasible title to those included in the register. Land ownership is
transferred
through registration of title instead of using deeds. Its main purpose is to simplify lan
d transactions and to certify to the ownership of an absolute title to real
property. It has become pervasive
around the countries strongly influenced by Britain, especially those in the Common
wealth and has spread to most other non-commonwealth countries.

Overview
The Torrens title system operates on the principle of "title by registration" (i.e. the i
ndefeasibility of
a registered interest) rather than "registration of deed." The system does away with t
he need for a
chain of title (i.e. tracing title through a series of documents). The State guarantees ti
tle and is
usually supported by a compensation scheme for those who lose their title due to the
State's operation or ommission.
The Torrens system works on three principles;

1. Mirror principle – the register (Certificate of Title) reflects (mirrors) accurately

andcompletely the current facts about a person's title. This means that, if a pe
rson sells an
estate, the new title has to be identical to the old one in terms of description of
lands,except for the owner's name.

6.1. Torrens System of Registration of Land 91

 2. Curtain principle – one does not need to go behind the Certificate of Title as
it contains all
the information about the title. This means that ownership need not be proved
by long
complicated documents that are kept by the owner, as in the Private Conveya
ncing
system. All of the necessary information regarding ownership is on the Certific
ate of Title.
3. Indemnity principle – provides for compensation of loss if there are errors m
ade by the Registrar of Titles.

Common law
At Common law,
land owners needed to prove their ownership of a particular piece of land back to
the earliest grant of land by the
Crown to its first owner. The documents relating to transactions
with the land were collectively known as the "title deeds" or the "chain of title". This
event could
have occurred hundreds of years prior and could have been intervened by dozens of
changes in
the land's ownership. A person's ownership over land could also be challenged,
potentially causing great legal expense to land owners and hindering development.
Even an exhaustive title
search of the chain of title would not give the purchaser complete
security, largely because of the principle nemo dat quod non
habet ("no one gives what he does not have") and the ever-
present possibility of undetected outstanding interests. The common-
law position has been changed in minor respects by legislation designed to minimize
the searches that should be undertaken by
a prospective purchaser. In some jurisdictions, a limitation has been placed on the
period of commencement of title a purchaser may require.

6.1. Torrens System of Registration of Land 92

 Deeds registration
The effect of registration under the Deeds Registration
System was to give the instrument registered "priority" over all instruments that are
either unregistered or not registered until later. The basic difference between the
deeds registration and Torrens systems is that the former
involves registration of instruments while the latter involves registration of title.
In contrast of
Torrens system in which basically the one who registered in a land registry as
owner of a piece or parcel of land has an indefeasible title of the land, deeds
registration system is merely a registration of all important
instruments related to that land. In order to establish one's
title to the land, a person (or usually their purchasers’
attoney) will have to ascertain, for example:

• all the title documents are properly executed;

• "a chain of title" is established, i.e. the proper ownerships from the granti
ng of the land from the government to the present owner;
• there are no encumbrances on the land that probably will harm the title o
f the land.

Moreover, though a register of who owned what land was maintained, it was unreliab
le and could be challenged in the courts at any time. The limits of the deeds-
registration system meant that transfers of land were slow, expensive, and often una
ble to create certain title.

6.1. Torrens System of Registration of Land 93

 Creation

Under the system many maps showing property boundaries need to be kept.

In order to resolve the deficiencies of the common law and deeds registration system
,Torrens introduced the new title system in 1858, after a boom in land speculation
and a
haphazard grant system resulted in the loss of over 75% of the 40,000 land grants
that was issued in the colony. He established a system based around a central
registry of all the land in the jurisdiction of South Australia, embodied in the
Real Property Act1886 (SA). All transfers of land are recorded in the register.
Most importantly, the owner of the
land was established by virtue of his name being recorded in the government's
register. The Torrens title also records
easements and the creation and discharge of mortgages.
The historical origins of the Torrens title are a matter of considerable controversy.
Torrens
himself acknowledged adapting his proposals from earlier systems of transfer and
registration,particularly the system of registration of merchant ships in the
United Kingdom. The Prussian mortgage legislation also served as an example.

James E. Hogg, in Australian Torrens

System with Statutes (1905), has shown that Torrens derived ideas from many other
sources
and that he received assistance from a number of persons within South Australia.
StanleyRobinson, in Transfer of Land in Victoria (1979) has argued that Ulrich Hübb
e, a German lawyer
living in South Australia in the 1850s, made the most important single contribution by
adapting principles borrowed from the Hanseatic registration system in Germany.
Nevertheless, it cannot be denied that Torrens' political activities were substantially
responsible for securing acceptance of the new system in
South Australia and eventually, in other Australian colonies and New Zealand.
He oversaw the introduction of the system in the face of often-
vicious attack from his opponents, many of whom were lawyers, who feared loss of
work in conveyancing, because of the
introduction of a simple scheme. The Torrens system was also a marked departure

6.1. Torrens System of Registration of Land 94

 from the common law of real property and its furtherdevelopment has been character
ised by the reluctance of common-law judges to accept it.

Land register
The land register is the central aspect of the Torrens system. Originally the register
was a bound paper record, but today the register is typically kept in a (Computerised)
database.
On the first registration of land under the system, the land is given a unique number (
called a folio) which identifies the land by reference to aregistered plan. The folio rec
ords the dimensions of the land and its boundaries, the name of the registered owner
, and any legal interests that
affect title to the land. To change the boundaries of a parcel of land, a revised plan m
ust be prepared and registered. Once registered, the landcannot be withdrawn from t
he system.
A transfer of ownership of a parcel of land is affected by a change of the record on th
e register. The registrar has a duty to ensure that onlylegally valid changes are made
to the register. To this end, the registrar will indicate what documentation he or she
will require to be satisfiedthat there has in fact been a change of ownership. A chang
e of ownership may come about because of a sale of the land, or the death of theregi
stered owner, or as a result of a court order, to name only the most common ways th
at ownership may change. Similarly, any interestwhich affects or limits the ownership
rights of the registered owner, such as a mortgage,
can also be noted on the register. There are legalrules which regulate the rights and
powers of each of these interests in relation to each other and in relation to third parti
es.
The State guarantees the accuracy of the register and undertakes to compensate th
ose whose rights are adversely affected by anadministrative error. Claims for compe
nsation are very rare.

6.1. Torrens System of Registration of Land 95

 Effect of registration
The main difference between a common law title and a Torrens title is that a member
of the general community, acting in good faith, can relyon the information on the lan
d register as to the rights and interests of parties recorded there, and act on the basi
s of that information. Aprospective purchaser, for example, is not required to look be
yond that record. He or she does not need even to examine the Certificate ofTitle, th
e register information being paramount. This contrasts with a common law title, whic
h is based on the principle that a vendor cannottransfer to a purchaser a greater inter
est than he or she owns. As with a chain, the seller's title is as good as the weakest li
nk of the chain oftitle. Accordingly, if a vendor's common law title is defective in any
way, so would be the purchaser's title. Hence, it is incumbent on thepurchaser to ens
ure that the vendor's title is beyond question. This may involve both inquiries and an
examination of the chain of title.
The registered proprietor of Torrens land is said to have an indefeasible title. That m
eans that only in very limited circumstances can his or hertitle be challenged. These
challenges are established in the legislation, and are subject to rules made by courts
. For example, in Victoria suchchallenges are established in section 42 of the Transf
er of Land Act 1958. A court can also adjust rights as between parties before it, ando
rder changes to the register accordingly.

Indefeasibility of title
Indefeasibility of title applies to the registered proprietor or joint proprietors of land.
This indicates that the registered interest holder will be free from all encumbrances o
ther than inter alia:

• Those listed on the title;

• Those claiming the land on a prior folio;
• where the land is included by wrong description on the part of the Registrar and the
proprietor is not or has not derived title from a purchaser ‘for value’;
• paramount interests-
(f)) – these interests, although even possibly unregistered, are 'superior' to interests t
hat are registered.

Additionally, there exist exceptions or circumstances that can penetrate the indefeasi
bility. Common factors that, when evidenced by a party,
may penetrate and defeat the registered holder's claim include:

• Fraud committed by the registered interest holder [principle of immediate indefeasibil

ity].
• Judicial action, where it can be shown that there was some contractual promise or u
ndertaking by the registered party vis-a-vis the unregistered party;

6.1. Torrens System of Registration of Land 96

 • Inconsistent legislation (in which case the most recent legislation prevails);
• Volunteer, where the registering party acquires the interest for no consideration (e.g.
bequeathed in a will).

6.1. Torrens System of Registration of Land 97

 TOPIC 3 – INDEFEASIBILITY OF TITLE
Objectives of Torrens system

• Registration under the Torrens system has the following objectives, namely
to:
– provide a register from which persons who proposes to deal with land can
discover all the facts relevant to the title;
– ensure that a person dealing with land which is registered is not adversely
affected by any defects in the vendor’s title which do not appear on the
register;
– guarantee the conclusiveness of the register; and
– provide adequate compensation to any person who suffers a loss as a
result of this guarantee

Indefeasibility of title

• The Torrens system operates upon the fundamental principle that registration
confers an “indefeasible title” to the registered proprietor
• Meaning of “Indefeasible title” under Land Titles Act (Tas) s 40:
o “subject only to such estates and interests as are recorded on the folio
of the Register or registered dealings evidencing title to land”
• Indefeasibility of title is the immunity from attack by an dverse claim to the
land which the registered proprietor enjoys (Frazer a v Walker).
• Indefeasibility refers to the fact that every time a title is registered, it is created
anew and acquires a greater level of protection
• It means that at the time of registration, the registered proprietor of an interest
in land receives unassailable rights to the land which are only subject to
other interests registered on the title (encumbrances) and statutory or non-
statutory exceptions
• Upon registration of an interest it automatically acquires statutory protection
• Title is not historical or derivative (ie it does not derive from your predecessor
or is not based on historical events. It is created anew.
• Title is a product of registration

Meaning of indefeasibility

• A registered holder will not be affected by the doctrine of notice – save fraud
(s43) – and the nemo dat non habent rule

“The object is to save persons dealing with Registered Proprietors from the trouble
and expense of going behind the register”. Gibb v Messer 1891

The technical meaning of indefeasibility is indestructibility or inability to be made

invalid:

6.1.1.Torrens System Additional Reading 98

 1. This is true insofar as it applies to the provisions of the Torrens system:
• Upon registration under the Torrens system, an interest holder cannot
have his or her interest defeated by an unregistered interest, even where
the interest holder register with notice of the existence of the unregistered
interest- it is indefeasible
2. This is not true insofar as it does not mean that the registered interest is
completely indestructible:
a) The security that the Torrens system provides is not absolute: all
registered interest holder will take subject to those encumbrances which
have already been, or which may in the future be registered on the title;
o An encumbrance is any right or interest that exists in someone
other than the owner of an estate and that restricts or impairs the
transfer of the estate or lowers its value. Ex: an easement, a lien, a
mortgage and unpaid taxes.
o The encumbrance must be recorded in folio/a paramount interest to
restrict a Torrens estate.
b) A registered interest holder is fully capable of alienating his or her interest
and, once a subsequent transfer of the interest is registered the
subsequent registration will defeat the prior registration; and
c) The indefeasibility of title conferred upon a registered interest holder is
subject to an extensive range of statutory and non-statutory exceptions in
all states

INDEFEASIBILITY UNDER THE TORRENS SYSTEM IS A RELATIVE CONCEPT:

• it refers to the fact that if a title is examined or attacked at a given point of

time, it cannot be defeated or annulled
• it does not mean that the title can never be defeated
• The effect of indefeasibility is set out in the so-called
paramountcy/indefeasibility provisions of the Torrens legislation of each
State
• Paramountcy provisions Is the foundation of the Torrens system
• The overall effect of the of the indefeasibility is described and not
indefeasibility as such
• Provisions ensures that a state guaranteed title is acquired subject only to
registered interests and stator and non-statutory exceptions

PARAMOUNTCY PROVISIONS

The statutory provisions which, in combination, have conferred the indefeasible

status upon a registered interest holder are known as the “paramountcy provisions.”
In TLA (Vic):

• S 40: effect of registration;

6.1.1.Torrens System Additional Reading 99

 • S 41: certificates of title are conclusive evidence of title;
• S 42: conferral of indefeasible title upon registration;
• S 43: abolition of the doctrine of notice; and
• S 44: the effect of fraud
• Paramountcy provisions represent the core of the Torrens legislative provisions
in each State
• Provisions basically provides three forms of protection:
a. Priority over unregistered rights
b. Protects registered proprietors from the effect of notice
c. Protection from interference with possession

Paramountcy provisions in detail:

S 40: instrument not effectual until registered

s 40(1): “Subject to this Act no instrument until registered as in this Act provided shall be
effectual to create vary extinguish or pass any estate or interest or encumbrance in on or
over any land under the operation of this Act, but upon registration the estate or interest
or encumbrance shall be created varied extinguished or pass in the manner and subject to
the covenants and conditions specified in the instrument or by this Act prescribed or
declared to be implied in instruments of a like nature”.

**s 40(2) has been repealed

Meaning of s 40(1)

• Strict reading: no interest can exist prior to registration (unregistered interests

not recognised by the system)
• Unregistered interest however do exist under TS
• Other provisions in statute recognises unregistered interests
• Denial of the effect of a right until registration does not touch whatever right is
behind it (Barry v Heider)
• Section 40(1) does not preclude the existence of unregistered interests but
merely sets out where capable of being registered, the benefits of registration
will not be conferred until the instrument is actually registered
• Registered interest is subject to covenants/conditions in instrument or
prescribed by the TLA or implied in a similar interest
• Conclusion of contract or execution of a deed will not create a property right in
TS.

6.1.1.Torrens System Additional Reading 100

 S 41: CERTIFICATE TO BE CONCLUSIVE EVIDENCE OF TITLE

“No folio of the Register under this Act shall be impeached or defeasible by reasons or on
account of any informality or irregularity in any application or instrument or in any
proceedings previous to the creation of the folio or the making of any recording on it; and
every folio of the Register shall be received in all courts as evidence of the particulars
recorded in it and all the recordings of those particulars in the Register, and shall be
conclusive evidence that the person named in the folio as the proprietor of, or having any
estate or interest in, or power to appoint or dispose of, the land described in the folio is
seised or possessed of that estate or interest or has that power.”

Meaning of s 41

• Prior irregularities does not make present title indefeasible

• Folio is evidence of the recordings in it as well as recordings of that particulars
in register
• S41, the evidentiary provision, sets out every Crown grant or certificate of title
is to operate as conclusive evidence of proprietorship existing in a particular
folio of land
• Section 41 endorses the fact that Registrar provides conclusive evidence of
title
• Prospective purchasers can rely upon the accuracy of the register

S 42: ESTATE OF REGISTERED PROPRIETOR PARAMOUNT

S 42(1): “Notwithstanding the existence in any other person of any estate or interest
(whether derived by grant from Her Majesty or otherwise) which but for this Act might be
held to be paramount or to have priority, the registered proprietor of land shall, except in
case of fraud, hold such land subject to such encumbrances as are recorded on the
relevant folio of the Register but absolutely free from all other encumbrances
whatsoever, except—

(a) the estate or interest of a proprietor claiming the same land under a prior folio of the
Register;

(b) as regards any portion of the land that by wrong description of parcels or boundaries is
included in the folio of the Register or instrument evidencing the title of such proprietor not
being a purchaser for valuable consideration or deriving from or through such a
purchaser.”

Effect of s 42(1)

• This is the “general rule” of indefeasibility

6.1.1.Torrens System Additional Reading 101

 • The effect of s 42(1) may be summarised as follows, namely that:
• Common law priority rules are abolished if interests
• The registered proprietor acquires a guaranteed statutory title and will only be
subject to those encumbrances actually noted /recorded on the folio of the
Register
• Registered proprietor is free from other encumbrances
• Once registered, the registered proprietor will have priority over the land
despite the existence of other interests
• Fraud (of registered proprietor) will vitiate (extinguish) the priority of a
registered proprietor: registration was obtained by proprietors own fraud
• The exact nature of the fraud is not described or elaborated

Meaning of proviso to s 42(1)

• The title will be subject to the exceptions set out in sub-ss (a) and (b):
a. The prior folio or certificate of title exception applies where there are two
folios or certificates in existence at the same time in respect of the same
land.
▪ Indefeasible title will not be given if the same land is given to a
previous proprietor under a prior folio
▪ The “paramountcy provision” protecting the first registered
proprietor has priority over the “indefeasibility provision” of the
second registered proprietor.
b. Indefeasible title will not be given if the land is to be included by wrong
description and the proprietor is not a purchaser for value or has not
derived title through such purchaser

6.1.1.Torrens System Additional Reading 102

 S 42(2) INDEFEASIBLE TITLE SUBJECT TO EXCEPTIONS:-

“Notwithstanding anything in the foregoing the land which is included in any folio of the
Register or registered instrument shall be subject to
(a) the reservations exceptions conditions and powers (if any) contained in the Crown
grant of the land;

(b) any rights subsisting under any adverse possession of the land;

(c) any public rights of way;

(d) any easements howsoever acquired subsisting over or upon or affecting the land;

(e) the interest (but excluding any option to purchase) of a tenant in possession of the
land;

(f) any unpaid land tax, and also any unpaid rates and other charges which can be
discovered from a certificate issued under section three hundred and eighty-seven of the
Local Government Act 1958, section 158 of the Water Act 1989 or any other enactment
specified for the purposes of this paragraph by proclamation of the Governor in Council
published in the Government Gazette

notwithstanding the same respectively are not specially recorded as encumbrances on the
relevant folio of the Register”.

Meaning of s 42(2)

• Section 42(2) provides a further exception to the primacy of the registered

proprietor’s title as established in section 42(1)
• Where an interest is classified under sub sections (a)-(f), it is described as a
paramount interest and all registered interests must take subject to
paramount interests
• PARAMOUNT interests (s 42(2)(a)-(f)) - these interests, although even
possibly unregistered, are 'superior' to interests that are registered.
• Paramount interests are exceptions to indefeasibility of registered title
• Paramount interests remain enforceable against all registered interest holders
despite the fact that they have not been registered on the folio

In addition to paramount interests, there are other exceptions or circumstances

that can 'penetrate' the indefeasibility: These are:

• FRAUD - where fraud is committed by the registered interest holder (principle

of immediate indefeasibility);
• IN PERSONAM- where it can be shown that there was some contractual
promise or undertaking by the registered party vis-a-vis the unregistered
party.

6.1.1.Torrens System Additional Reading 103

 • INCONSISTENT LEGISLATION- where legislation enacted after the Torrens
legislation is inconsistent with the Torrens legislation, the later will prevail
• VOLUNTEER - where the registering party acquires the interest for no
consideration (e.g. bequeathed in a will).

S 43: PERSONS DEALING WITH THE REGISTERED PROPRIETOR NOT AFFECTED BY NOTICE

• “Except in the case of fraud no person contracting or dealing with or taking or proposing
to take a transfer from the registered proprietor of any land shall be required or in any
manner concerned to inquire or ascertain the circumstances under or the consideration
for which such proprietor or any previous proprietor thereof was registered, or to see to the
application of any purchase or consideration money, or shall be affected by notice actual
or constructive of any trust or unregistered interest, any rule of law or equity to the
contrary notwithstanding; and the knowledge that any such trust or unregistered interest is
in existence shall not of itself be imputed as fraud.”

Meaning of s 43

• S 42 is reinforced in its effect by s 43.

• Except in case of fraud, a person dealing with register is not required to
ascertain the circumstances under which the proprietor/previous proprietor
was registered
• A person dealing with the register is also not effected by notice of any trust or
unregistered interest
• The aim of s 43 is to abolish the common law doctrine of notice
• As soon as a purchase is registered, the purchaser will take free from any
outstanding unregistered interest, even if he or she has notice of its existence
prior to registration.
• Mere knowledge that a prior interest existed will be insufficient to constitute
such fraud
• Affords a greater level of protection than under general law land: the
registered holder may enforce the title, even where they took title with notice
of existence of previous title

S 44: CERTIFICATES ETC VOID FOR FRAUD – AGAINST THE PERSON DEFRAUDED

S 44(1): “Any folio of the Register or amendment to the Register procured

or made by fraud shall be void as against any person defrauded or sought
to be defrauded thereby and no party or privy to the fraud shall take any
benefit there from.”

Meaning of s 44(1)

6.1.1.Torrens System Additional Reading 104

 • The purpose of s 44(1) is to set out expressly that any transaction which is
procured or made by fraud shall be void as against the person defrauded or
sought to be defrauded, and no party who is privy to fraud shall take any
benefit.
• Title of a fraudster is void as against the previous and the fraudster’s title is
defeasible
• Fraudster or person privy to fraud is targeted
• Fraud not defined
• Section 44(1) allows a person who has been defrauded to bring an action
against the registered proprietor on the title

S 44(2)

• “But nothing in this Act shall be so interpreted as to leave subject to an

action of ejectment or for recovery of damages or for deprivation of the
estate or interest in respect of which he is registered as proprietor any bona
fide purchaser for valuable consideration of land on the ground that the
proprietor through or under whom he claims was registered as proprietor
through fraud or error or has derived from or through a person registered
as proprietor through fraud or error; and this whether such fraud or error
consists in wrong description of the boundaries or of the parcels of any land
or otherwise howsoever.”

Meaning of s 44(2)

• Registered proprietors that acquired their rights in good faith and for
value are not subject to an action of ejectment or for recovery of damages or
deprivation of an estate or interest on the ground that they have derived title
from a person registered as a proprietor through fraud or error (ejectment
section)
– This is a qualification of s 44(1)- the fraudster cannot benefit- a
person acting in good faith is protected (a bona fide third party)
– A is registered proprietor- (bonafide purchaser for valuable
consideration), the fraudster (who is also a solicitor) Mr X fraudulently
registers the property in their name and subsequently it ends up in the
hands of B (who acted in good faith and is bona fide). If you take ss
44(1) in the events between A and the solicitor Mr X, the solicitor
cannot benefit from it and the transaction is void visa via the victim (A).
The original victim cannot institute these actions against C the bonafide
purchaser for value.

6.1.1.Torrens System Additional Reading 105

 • S 44(2) qualifies the effect of s 44(1) by noting that nothing in the Act is to be
read so as to deprive a bona fide third party purchaser for valuable
consideration of an estate or interest
• On the wording of s 44(2), it seems that, even where the proprietor from
whom the bona fide third party purchaser received the estate is proven to
have been registered through fraud, the title of the bona fide third party
purchaser will not be invalidated

Combined meaning of s 44(1) and (2)***********

• Section 44(1) and (2) are unique to the TLA (Vic)

• Their exact effect has been the subject of some debate.
• The combined effect of s 44(1) and (2) can be summarised as follows:
– any registration of title shall be void as against any person who has
been defrauded, and no party who is a subject to the fraud shall
receive the benefit of registration. The solicitors title is defeasible.
– The court will uphold the registration, even if acquired by fraud, if
voiding the registration has the effect of interfering with an interest
acquired by a bona fide third party purchaser

• Where a transaction has been tainted by fraud and that fraud has not been
committed by the person seeking registration, section 44(1) is not applicable:
“immediate indefeasibility” occurs upon registration.

Conclusion:

Indefeasibility has four features:

1. Registered title is conclusive regardless of a defect in prior transactions or

the process of registration itself
2. Registered proprietor is subject to statutory and other exceptions to
indefeasibility
3. Registered title has priority over unrecorded interests
4. Registered proprietor is not affected by actual or constructive notice of any
unregistered interest and is under no obligation to enquire into the
circumstances in which the previous registered titles were obtained

IMMEDIATE AND DEFERRED INDEFEASIBILITY

• Paramountcy provisions are subject to different interpretations

• In the debate between immediate and deferred indefeasibility the issue is

whether indefeasibility should attach to a registered instrument if the
proceeding process of transfer is flawed

6.1.1.Torrens System Additional Reading 106

 • One must distinguish between the process of transfer (executing registrable
documents) and process of registration (by Registrar)

• Is indefeasibility obtained immediately upon registration of the flawed

transaction or is it deferred to one transaction after the flawed transaction?

• Example: A, the registered owner of Blackacre, leaves his certificate of title

with his solicitor S for safekeeping. S forges A’s name to a transfer of land in
favour of B. The transfer is registered and B becomes the registered owner. A
and B are both innocent. (Does B have indefeasible title or can A maintain an
action to recover his land?) B subsequently transfers to C and C became the
registered owner. (Does only C acquire indefeasibility?)

• Issue: Whether indefeasibility is acquired immediately upon registration

subject only to fraud committed or brought home to the registered proprietor
or whether defeasible title is deferred where the transaction is tainted by fraud
or flawed

• The answer depends on whether immediate/deferred indefeasibility is

adhered to

• ANSWER

• A, the registered owner of Blackacre, leaves his certificate of title with

his solicitor S for safekeeping. S forges A’s name to a transfer of land
in favour of B. The transfer is registered and B becomes the registered
owner. A and B are both innocent. B subsequently transfers to C and C
became the registered owner.
• Note: B has become registered under a void instrument because of the
forgery. C took under a valid instrument
• On the theory of immediate indefeasibility B’s title is indefeasible.
• On registration a registered proprietor immediately acquires an
indefeasible title (unless statutory fraud has been committed or brought
home to registered proprietor)
• On the theory of deferred indefeasibility B’ title is not indefeasible:
defeasibility is deferred to one transaction away from the problem
transaction. C’s title would be indefeasible and would not be subject to
attack by A.
• Registered proprietor will have indefeasible title deferred in
circumstances where the transaction has been affected by fraud which
may not have been committed or brought home to the registered
proprietor

There are two approaches: -

1. Immediate indefeasibility

6.1.1.Torrens System Additional Reading 107

 • Distinguish process of transfer (executing registrable documents) and
process of registration (by the Registrar)
• Immediate indefeasibility means that a proprietor is protected as soon as
his/her title is registered, regardless of the invalidity of the process of transfer
or the defects in the transferor’s title
• Upon registration the title of the registered proprietor is immediately
indefeasible
• Immediate indefeasibility means that upon registration based on an invalid
document the registered proprietor is entitled to the same priority as any
other property right
• A bona fide purchaser for value whose interest becomes registered obtains
good title (immediate indefeasibility) even where the transaction is affected by
fraud
• Greater credence is given to the registration provisions than to the fraud
provisions
• Immediate indefeasibility favours the conferral of absolute title upon
registration by a bona fide purchaser unless a clear actual fraud committed
by the person seeking registration can be established
• Fraud can only set aside the title of the registered proprietor where the
registered proprietor was clearly involved in fraud
– Torrens system is all about certainty and the RP will always retain tittle
unless there is fraud involved
• The mere fact that the transaction is tainted by fraud is insufficient

2. Deferred indefeasibility

• Under deferred indefeasibility, if the instrument of the transferor is a nullity

(forged signature – before registration), the transferee is unable to defeat a
claim by the true owner
• Indefeasibility is deferred to one transaction away from the problem dealing
• Indefeasibility is deferred where the transaction creating the registration is
tainted by fraud, even though fraud was not actually committed by the
registered proprietor
• Rationalised on the ground that a proprietor should not be allowed to obtain a
benefit from a fraudulent transaction
o The register only gives protection to real people and so if a fictions
person is involved then they should not be afforded the same
protection
• Fraud provisions are given greater credence that the registration provisions
• Thus, under deferred indefeasibility a bona fide purchaser whose interest
becomes registered under a forged or void title will not obtain a good title,
although protection may be given to a subsequent registered bona fide
purchaser

6.1.1.Torrens System Additional Reading 108

 • Deferred indefeasibility means that registration can be cancelled, but the
cancellation will not affect the indefeasibility of any subsequently registered
property right

Fictitious person exception

• A fictitious person is an exception to immediate indefeasibility

• It has been held where a person transacts with a fictitious person (person
made up as part of fraudulent scheme or who does not exist at all), any
subsequent registered title will be deferred. If it is a fake person on the
register the person will not be protected.
• Rationale: system will only confer protection on a person who has actually
derived title from a real person existing on the register (thus a form of deferred
indefeasibility)

6.1.1.Torrens System Additional Reading 109

 Gibbs v Messer (pc) (deferred indefeasibility / ficticious person exception)

FACTS:

• Mrs Messer was the registered proprietor of land. Messer’s solicitor was Mr Creswell.
Creswell forged a transfer to a fictitious person, “Hugh Cameron”. (Registered proprietor
did not exist).
• Creswell then purported to act on behalf of Cameron and obtained a loan from the
McIntyres. Loan was secured by a mortgage registered over the land of Messer. The
mortgagees acted in good faith in registering the mortgage. Creswell absconded with the
mortgage moneys.
• Mrs Messer sought to have her name reinstated on title, without the land being subject to
the mortgage of the McIntyres.
• Mortgagees claimed that they had an indefeasible title which could not be set aside by the
fraud in the transaction
ISSUE:

• Whether the McIntyres held an indefeasible title in mortgage given that registration had
occurred pursuant to a fraud involving a fictitious person
• Messer was successful in the application. The PC ordered that her name be restored to
title and decided that the mortgage did not enjoy indefeasibility, because it was provided
for a non-existent person.

Indefeasibility was to be deferred.

HELD:

• The protection afforded by statute to persons transacting on the faith of the register is
limited to persons actually dealing with and derive a right from a proprietor whose name is
upon register.
• Those who deal not with the registered proprietor, but with a forger who uses his name, do
not transact on the faith of the register
• Those persons cannot by registration of a forged deed acquire a valid title in their own
person
• However, the fact of their being registered will enable them to pass a valid right to third
parties who purchase from them in good faith and for onerous consideration (deferred
indefeasibility obiter)
• Hugh Cameron was a myth having no existence: could not execute a transfer nor a
mortgage. McIntyres must have understood Creswell and Cameron to be distinct
individualities whereas this was not the case
• Mortgage of the McIntyres is a nullity: did not deal with a registered proprietor: rights under
null deed not indefeasible
• Lord Watson: no indefeasibility. Fraud in transaction + dealt with forger not real person.

‘The McIntyres cannot bring themselves within the protection of the statute, because the
mortgage which they put upon the register is a nullity. The result is unfortunate, but it is
due to their having dealt, not with a registered proprietor, but with an agent and forger,
whose name was not on the register, in reliance upon his honesty.’

Comment:

Decision appears to be:

• Either an instance of “deferred indefeasibility” where the transaction is tainted by fraud or
• An unusual exception, namely a registered title holder cannot claim the protection of
indefeasibility where they have dealt with a fictitious person rather than the registered
proprietor
• If the latter, the registered title holder can only claim indefeasibility if one takes transfer
from a real person
• Decision no longer followed but has never been overruled

6.1.1.Torrens System Additional Reading 110

 With regard to Gibbs v Messer: It is an open question as to whether it is an

historical anomaly or a genuine exception to the principle of immediate,

indefeasibility. But it has not been followed nor overruled.

FRASER V WALKER (PC) (IMMEDIATE INDEFEASIBILITY)

FACTS:

• Mr and Mrs Fraser were registered proprietors of land. Mrs Frazer borrowed money from
the Radomski’s, providing her with a (2nd) mortgage over the land. In achieving this, she
forged her husband's signature (void). When the money was not repaid under the 2nd
mortgage, the Radomskis exercised their power of sale and sold the land to Walker.
Walker became the registered proprietor of the land. Mr Frazer resisted registration by
arguing that the mortgage was a nullity as his name was forged on the mortgage
documents.
ISSUE:
Could the mortgage be set aside given the mortgage transfer was void through forgery?
PC HELD:

• Upon registration of the mortgage, the mortgagee obtained an indefeasible title

• It was held that title of the Radomski’s was an indefeasible transaction from the time of
registration
• Radomski’s took without fraud and the fact that the mortgage was a void document at
common law did not affect the indefeasibility of their title
• PC endorsed immediate indefeasibility
• Gibbs v Messer was distinguished – bona fide purchaser taking from a fictitious person
and a bona fide purchaser taking from a real registered proprietor.
• Although at common law, the mortgage was void as a forgery, registration cured this defect
by enabling the binding of the mortgage to the land. Registration was sufficient to confer an
unimpeachable title
• Indefeasibility does not deny the right of a plaintiff to bring a claim in personam founded in
law or equity against a registered proprietor (see in later topics)
• Lord Wilberforce: Walker held indefeasible title. If no fraud then intention was to confer full
title on registered proprietor subject only to in personam obligations

‘Registration under the Land Transfer Act 1952 (TLA in Vic) confers on a registered
proprietor a title to the adverse claims, other than those specifically excepted.
In doing so they wish to make clear that this principle in no way denies the right of a
plaintiff to bring against a registered proprietor a claim in personam founded in law
or in equity, for such relief as a court acting in personam may grant.’

• Mortgagee has passed title to innocent third party purchaser, who, upon registration,
acquired protection of the legislation
• PC found in favour of Walker because his title as a registered bona fide purchaser for
consideration was indefeasible ( with some specific exceptions)
• Where a mortgage has been tainted by fraud but the mortgagee has passed title on to a
bona fide third party such third party will not have his title impugned by fraud

• Frazer v Walker is actually authority for the primacy of the registered title held by innocent
third party takers (and not direct authority for primacy of immediate indefeasibility).

6.1.1.Torrens System Additional Reading 111

 BRESKVAR V WALL (HC)(IMMEDIATE INDEFEASIBILITY) NEED TO GO OVER

FACTS

• Breskvars were registered proprietors of land. They obtained a loan from Petrie, providing
him with the duplicate certificate of title and a signed blank transfer form
• Section 53(5) of the Queensland Stamp Act of 1894 provided that no transfer “shall be
valid either at law or in equity unless the name of the purchaser or transferee is written
therein in ink at the time of the execution thereof. Any such instrument so made shall be
absolutely void and inoperative …”
• Thus, due to these legislative requirements in Queensland, the transfer was void because
the name of the purchaser was not inserted.
• Petrie subsequently fraudulently inserted the name of his grandson, Wall into the transfer.
• Wall became the registered proprietor and contracted to sell the land to Alban Pty Ltd and
executed a deed.
• Before Alban registered their interest, the Breskvars had discovered what had gone on,
and lodged a caveat against dealings with the land.
• Breskvars argued that they retained title because registration of a void instrument was
ineffective to transfer interest to Wall
HELD:

• Invalidity of process of transfer did not have the effect of preventing the passing of title
upon registration
• Torrens system is not a system of registration of title but a system of title by registration.
The title which the certificate certifies is not historical or derivative
• It is the title which registration itself has vested in the proprietor
• Consequently, a registration which results from a void instrument is effective according to
the terms of the registration
• The reason for voidness is irrelevant – the only relevancy of a property interest is
registration of title
• The effect of Stamp Act upon memorandum of transfer is irrelevant to question whether
certificate is conclusive of its particulars
• Upon registration of memorandum of transfer title was vested in Wall
• The conclusiveness of the certificate of title is definitive of title of registered proprietor
• “…there is immediate indefeasibility of title by registration of the proprietor’s named in the
register”
• Held that although Wall was party to fraud, this simply meant that his title was
defeasible. If he had not been a party to the fraud, his interest would be immediately
indefeasible
• Wall became the registered proprietor when he registered his instrument. His involvement
in the fraud deemed his registered title defeasible. Given he had registered title, he was
still able to create a valid equitable interest in a third party.
• As the Alban had not registered their instrument, they were not registered proprietors.

• Actually the decision involved a dispute between unregistered interests of Breskvars

against equitable interest of Alban under the contract of sale. Breskvars has the right to
sue and recover the land and have the register rectified.
• As the Breskvars had armed Petrie with the power to deal with land as owner and thus
enabled him to transfer title to Alban, interests of the Breskvars were postponed and
resolved in favour of Alban:
• Memorandum of transfer was executed without inserting name of purchaser
• Handed over duplicate certificate of title
• Authorised exercising of powers by mortgagee
• Lost priority to which their prior interest would have entitled because Breskvars armed
Wall with means of placing himself on the register (approved Abigail v Lapin) – applied
Rice v Rice test.

6.1.1.Torrens System Additional Reading 112

 Barwick CJ: ‘The Torrens system of registered title of which the Act is a form is not
a system of registration of title but a system of title by registration. That which
the certificate of title describes is not the title which the registered proprietor formerly
had, or which but for registration would have had. The title it certifies is not
historical or derivative. It is the title which registration itself has vested in the
proprietor. Consequently, a registration which results from a void instrument is
effective according to the terms of the registration. It matters not what the cause or
reason for which the instrument is void.’

Comments:

• If a registered proprietor receives transfer from a fraudulent transferor, and

the transaction is tainted by fraud, Torrens legislation will confer immediate
indefeasibility on the title of the subsequently registered proprietor if they
have not been personally involved in fraud
Criticism:

• It has been argued that a more lenient approach should be taken and that
title of registered proprietor should be set aside where the transaction was
tainted by fraud, even though the registered proprietor was not directly
involved with fraud.
• s 44(1): any folio procured or made by fraud is void (however, s 42(1)
refers to fraud on the part of the proprietor)
• S 44(1) include all kinds of frauds (Chasfild Pty Ltd Taranto)
• Fraud in s 44(1) should be the same as s 42(1), namely fraud
committed by the registered proprietor (Vassos v State Bank of
SA); thus immediate indefeasibility
i. Vassos v State Bank of South Australia, the bank
obtained a mortgage over land owned by three tenants-in-
common. One of the tenants-in-common subsequently
obtained a substitute mortgage for a greater sum by forging

6.1.1.Torrens System Additional Reading 113

 the signatures of the other two tenants-in-common. In this
case the bank’s mortgage was not obtained as the result of
fraud, nor was there an exception under the in personam
exception. On the in personam exception, Hayne J said this
case was distinguishable from Mercantile Mutual v Gosper.
He reaffirmed that more than a mere forgery was required.
Even though the bank was negligent in the manner in which
it took the forged mortgage, there was, at 333, ‘no
misrepresentation by it, no misuse of power, no improper
attempt to rely on its legal rights, no knowledge of
wrongdoing by any other party. … Even if by making
reasonable enquiries the bank could have discovered the
fact of the forgery I do not consider that that fact alone
renders its conduct unconscionable’.
• If fraud is not committed by a registered proprietor s 44(1) does
not apply

****Accepted that immediate indefeasibility interpretation is consistent with the aims

of the Torrens system***

City of Canada Bay Council v Bonaccorso Pty Ltd NSWCA

• The CCB council sold two parcels of land and the purchaser registered
the transfer of each lot. The council would have lacked the power to
sell or dispose of the land if the land qualified as “community land” in
terms of the Local Government Act, (s 45)
• On the facts it was found by the court that parcels of land were indeed
“community land”
• Issue was whether purchaser obtained indefeasible title to land upon
registration pursuant to the Real Property Act 1900 of NSW,
notwithstanding breach of section 45 of the Local Government Act
• Found that until registration there was opportunity to set aside the
transaction and prevent registration; opportunity was lost upon
registration
• Held there was no implied repeal of indefeasibility provisions by s 45
• S 45(1) merely deprives a Council from power to sell “community
land”; it does not declare transfer/registered transfer to be void nor
does it render unlawful the acquisition of title to land by purchaser
• Held that the legislature did not intend to deny the transferee of
community land the benefit of indefeasibility of title upon registration

Terms in registered instrument:

• Indefeasibility of what? All covenants of instrument?

6.1.1.Torrens System Additional Reading 114

 • Although an instrument is indefeasible when registered not all the
covenants in the instrument may be indefeasible
• Distinguish between personal contractual obligations (defeasible)
and land interests (indefeasible) in instrument
• Indefeasibility only conferred on covenants which are integral to
registered interest
• Not covenants which are merely personal
• Test used is ‘touch and concern’ test
• Registration validates those terms which delimits or qualify the estate
or interest

MERCANTILE CREDITS LTD V SHELL CO OF AUS LTD - this refers to a REGISTERED

LEASE

FACTS:

• Shell was granted a five year lease by Celtic Agencies. Within the five year lease there
were a number of covenants allowing Shell to renew the lease. The lease was registered.
• Celtic Agencies granted a mortgage over the land to Mercantile Credits. When Celtic
Agencies defaulted in making payments, Mercantile Credits sought to exercise the power
of sale.
• Shell lodged a caveat prohibiting the registration of any dealing unless that dealing was to
be subject to the renewals granted in the lease. Mercantile Credit sough a declaration that
the renewals within the lease were not binding on it.
Held:

• Barwick CJ held that the title of the registered proprietor of the lease, including the
interest in land derived from the covenant for renewal, became absolute and
indefeasible
• Reasoned: A right of renewal within a lease shall receive the same
indefeasibility protection as all other terms and conditions incorporated
within the lease
• Legislation dealt with registrable instrument rather than registrable interest
(right of renewal per se not registrable)
• A promise to renew which is not contained in a memorandum of a lease is not
registerable
• If covenant to renew is part of a memorandum of lease it is indefeasinble
• Once an interest defeated by subsequent registration is extinguished it cannot
be revived against later proprietor: Leros v Terar
• Gibbs J: right of renewal is so intimately connected with the term granted to the lease,
which it qualifies and define, that it should be regarded as estate or interests which the
lessee obtains under the lease. On registration it is entitled to same priority as the
term itself.
• Reasoned:
• Drafters of Torrens legislation could not have contended the inconvenience
that a right to renew could be defeated by a subsequent registration of a
mortgage
• Legislation itself supports the view that right of renewal should be protected

6.1.1.Torrens System Additional Reading 115

 Extent of indefeasibility

• Scope of protection provided by registration extends to include all associated

interests

• A registered lease will protect all properly created and attached covenants, including
options to renew

• The Act deals with registrable instruments not with registrable interests

• A right to renew incorporated into the instrument creating the lease will receive the
same level of protection from the Torrens system as would be conferred upon any
of the provisions contained within the lease instrument

• Right to renew is so intimately connected to the term granted to the lessee, which it
qualifies and defines, that it should be regarded as part of the estate or interest which
the lessee obtains under the lease.

• On registration of the lease, the lessee is entitled to the same priority as the term
itself

• Registration of a mortgage will not necessarily result in validation of all terms of

mortgage

• Covenant to pay specified amount of money is integral to mortgage: is

indefeasible on registration of mortgage

• Distinguish between personal contractual obligations and land interests (limitation

or qualification of estate/interest)

Conclusion

• Title is acquired by registration

• Registration is separated from process of transfer

• Upon registration of a document title is acquired by the transferee whatever

the invalidity of the process of transfer

• If the invalidity of the process of transfer did not amount to fraud on the part
of the registered transferee the title is indefeasible

• If the invalidity of the process of transfer involves fraud on the part of the
registered transferee, title still vest in the transferee but it is defeasible

• A previous registered proprietor who has been defrauded is able to bring an

action to recover title

Immediate indefeasibility

6.1.1.Torrens System Additional Reading 116

 • Immediate infeasibility is followed by the Ausutralian courts
• Immediate indefeasibility is a harsh blunt instrument resulting in the
lost of title by the true owners through no fault of their own (Ex Mr
Frazer)
• The innocent purchaser trumps the interest of the previous registered
proprietor (Ex Walker)
• It, however, provides legal certainty
• Argued that immediate indefeasibility is indefensible and should be altered
• Argued that purchaser of land from a void instrument (such as forgery)
should be compensated by money rather than the owners
• Human rights consideration: present value judgement in favour of
immediate indefeasibility may come under scrutiny

6.1.1.Torrens System Additional Reading 117

 CHAPTER 1.

INTRODUCTION.

1.1 THE CADASTRE.

cadastre essent ially a record of 1nterests in land

encompassi ng both the nat ure and extent of these interes ts.

The cadastre has basic elements which include the unambiguous

definition of land parcels and their related 1nformation like

area, value, location and Ownership. The valid1ty of the

cadastre tends to 1ie in its official status. The factors of

land, l a w and people influence the operat ion of the cadastre

1n any given environment. Generally speakin8 cadastres are

Composed of two parts, the first part being the written

record of land parcel information; the second part consisting

of a detailed map or plan depicting the land parcel in

question.

7. Cadastre 118
 adastres may be classified into the following f unctional

Classes, namely

Fiscal cadastre,

Legal cadastre, and

Multipurpose cadastre.

FISCAL CADASTRE:

the ot
iscal cadastres were historically compiled f or purp0se

information base which was used for raisingg

an
providing
the trend of
revenue through 1and taxation. However, nowadays

and
fiscal cadastre has changed towards legal
the

their theme of equitable and

multipurpoe cadastres, though
and the provision of
of real propertieS,
efficient assess ment

and equitable assesSment for

framework for valuation
the

remains the cardinal feat ure of

of the land still
improvements

fiscal cadastres.

7. Cadastre 119
 LEGAL CADASTRE:

This kind of cadastre is a8eneral official register which

Contains records of proprietary interests in l and The purpose

of the 1egal cadastre is to provide informa t ion about the

egally recognised interests in land parcels. It also provides

means of legal
transfer of the recognised land interests.

The Zambian cadastre falls into this category. A Conceptual

(ideal legal cadastre is built upon he following four

principles:

*booking principle

*agreement principle

*publici ty principle, and

speciali ty principle

The booking principle requires that an interest in land

before it can be 1egally transferred, and must be registere2d

in the Cadas tral record. This requirement is partially

fulfilled 1n Zambia. However, due to the emergence of the

informal sector as will be later explained in detaill in

chapter 5, this principle is being overlooked.

7. Cadastre 3 120
 ne
agreement principle implies that the transfer of landed

interests should be based on formally recognised agree ment

between the vendor and the vendee of such interests.

The
principle of
publicity means that the cadastral record
should be kept open to the public at all timeS, and

The principle oof speciality implies that the cadastral

recod and the 1and parce must be legally related in some

way, and usually the 1ink between the two is a

parcel
identifier (elaborated on in chapter 5. ).

MULTIPURPOSE CADASTRE:

aul ti purpose cadastre is a

parcel based land information
system which holds information pertaining to land
Ownership,
2and economics, physi Cal and ec0nomic
planning, statistics and
management Therefore it Can be
vie wed as
encompassing both
fiscal, legal and host of other
utility and
inventory
functions.

7. Cadastre 121