LAW SCHOOL

OF
TANZANIA

CONVEYANCING NOTES

Allen Albert Kaminda

PGDLP, LL.B
allenkaminda@gmail.com
 LECTURE ONE
CONVEYANCING
What is conveyancing?
This means transferring of title from one person to another either by way of sale, gift,
inheritance, lease, mortgage or easement which involve court process.
OTHER TERMINOLOGIES
 Interest refers to a right in or over a right of occupancy.
 Right of occupancy refers to a title to use and occupation of land and include
a Tanzania Citizen of African Community.
 Sale in relation to right of occupancy means transfer of an interest in or over
lands on conditions attached to a Granted Right of Occupancy.
 Transfer means the passing of a right of occupancy, a lease or mortgage from
one party to another by act of the parties as opposed to operation of law as per
section 2 of the Land Act, Cap.113
 Transmission (Part VII of Land Registration Act, Cap.334) means the passing
of a right of occupancy, a lease or a mortgage from one person to another by
operation of law on death or insolvency or otherwise.
FRAMEWORK OF LAND HOLDING IN TANZANIA MAINLAND
“A Good Conveyancer must be a good Land Lawyer and a good conveyancing
lawyer is a good land lawyer.” Why?
Answers;
- Framework of land law creates interest, defines its scope, provide qualities
and conditions of transfer (Land Act and Village Land Act)
- Any land acquisition involves rights and obligations. The rights include
occupancy or holding and disposition.
- Hence, rules of disposition, how, terms or conditions of holding or user and
disposition (Sections 25 to 30 of the Land Act)

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 CURRENT LAND TENURE SCHEME IN TANZANIA MAINLAND
a) VILLAGE LAND
Village Land in Tanzania is occupied more than 75% of the area covered by land in
Tanzania and which is within the territory of the village land is controlled by Village
Council who is responsible to plan, allocate portion to Villagers as a Residential use
and all decisions of village is done by Village Assembly.
b) GENERAL LAND
It involves Urban Land which is surveyed and unsurveyed land.
NB: Urban Land is any land other than Village Land and Reserved Land. However,
General land includes residential land, residential cum commercial, agricultural,
hazardous land, road reserves, recreational. General land is governed by the Land Act
and the one who will be allotted will be issued with granted right of occupancy for
surveyed land but for unsurveyed land with the issued with residential license.
c) RESERVED LAND
This is a land which is designed for certain purpose such as forest or National Park and
its categories are provided under section 6 of the Land Act, Cap.113.
PROCEDURE TO TRANSFER VILLAGE LAND TO GENERAL LAND
- Village Council must prepare meeting
- Meeting conducted by Village Member
- Survey the Land
- Application of granted right of occupancy to the Commissioner
NB: If the Land is more than 50 ecres, the Village Meeting must be held in presence of
District Commissioner.
QUESTION
“Citing specific laws and provisions, state how a right of occupancy is created,
held, and disposed in Tanzania?”
ANSWER;
- Creation of right of occupancy – section 25 of the Land Act
- Holding of right of occupancy – section 32(1)(a)-(c) of the Land Act
- Disposition – section 36(1)-(5) of the Land Act

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 TWO FORMS OF TENURE
i) Granted Right of Occupancy (Agricultural purposes, Pastoral purposes,
Mixed Agricultural, Building purposes GN. No.77/2001, Reg.6 to 11)
ii) Customary Right of Occupancy (Section 29 of the Village Land Act, farming,
pastoral, building)
URBAN TENURE TYPOLOGY
GENERAL LAND
- Private use of rural land: GRO – CT, ss.17(2)(3) VLA, DR – TIC
- Investors – S.19 & 20 of the Land Act, Section 4 of the Village Land Act
VILLAGE LAND
- Private use under Certificate of Customary R/O – ss.12,22-29 of the VLA
- Communal use of Rural Land
RESERVED LAND
- Informal occupation of Reserved Land (Legal or Illegal squatting) – S.12 of VLA
POWERS OF LOCAL GOVERNMENT AUTHORITIES IN GRANTING RESIDENTIAL LICENCE
A Local Government Authority can grant a residential license subject to the following
conditions;1
- To any person occupying land without official title or right within the area of
jurisdiction of that local authority as his home
- For a term which shall not be less than six month and not more than two years
which may be renewed for a similar term
- Subject to any conditions, including conditions as to the payment of any fees or
charges which may be specified in the license or which may be prescribed.

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Section 23(3), The Land Act [CAP 113 Revised Edition, 2019]

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 LECTURE TWO
INCIDENTS OF GRANTED RIGHT OF OCCUPANCY
QUESTION
“Choose any two incidents and analyze any sections of the Land Act and other related
laws that regulate it. (YOU MAY CONSULT LAND FORMS Regulations, 2001 GN#71) and
amendments thereto to identify the relevant forms to effect the incidents.”
ANSWER;
The Granted Right of Occupancy shall be; (Section 22(1) of the Land Act, Cap.113);
a) Granted by the President – SS.4(5), 29(3) of the Land Act and Land Forms
no.1,6,7,8,9,10,11,12,13,14,15,19 and LF#22 (Emmanuel Marakangi‟s Case)
b) In General or Reserved Land – section 5 to 7 of the Land Act and LF#2 and 3
c) Surveyed land as per Land Survey Act, Land Registration Rules, Urban Planning
Act and making consideration of registration of Title system such as
unimpeachability principle, mirror principle and curtain principle
d) For a period of up to, but not exceeding 99 years– Section 32(1) and Part VI
(GRO) and also, Land Forms no.19,22,23 and 24
e) At premium– section 31(1) and section 31(3) of the Land Act, Cap.113
f) For an Annual Rentwhich may be revisited from time to time as per section 33
of the Land Act and section 50 of the Land Act and Land Form No.8 (Notice to
pay rent)
g) Subject to any prescribed conditions as per section 34 and Part VI – Sub – Part
2 (conditions on right of occupancy) and Sub – Part 4 (Breach of conditions of
Right of Occupancy) as per SS.44-51 and LF# 25,27,28
h) Capable of being the subject of disposition as per section 2 of the Land Act as
well as Part VI, Sub – Part 3 (Dispositions of Right of Occupancy) as per
sections 36 to 43, and also, Part VIII on Disposition affecting Land
i) Liable, subject to the provisions of the Act to Revocation as per Sections 45 to
49 and process of revocation, Land Form No.33 (Notice of Revocation)
j) Liable, subject to the prompt payment of full compensation to compulsory
acquisition by the state as per section 3(1)(g) of the Land Act and process of

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 land acquisition, Land Form No.69 (Notice to Land Occupier to apply
compensation) and Land Form No.70 (Application for compensation)
NOTE: Once land has been acquired it has to be compensated.
Exceptions to Granted Right of Occupancy (Section 22(2) of the Land Act);
A right of occupancy does not include;
- Any water rights or rights over foreshore unless expressly mentioned
- Any rights to Mines, Minerals, or Gas etc.
- Right to appropriate and remove from country for gain or research any Flora au
Fauna naturally occurring or present on land or any palaeontological or
archaeological remains found on land
TYPES OF GRANTED RIGHT OF OCCUPANCY
a) By Duration
 Short term – Not exceeding 5 Years
 Long term – Above 5 Years (Section 27, Cap.334)
 Issue of Derivative Right
b) By Use – Regulation in GN#77 of 2001
Read;
- Conditions for land holding of Customary Right of Occupancy – Sect. 29 of VLA
- Remedies for breach – Sections 39 to 44 of the Village Land Act
LAND OCCUPATION AND CREATION OF DERIVATIVE RIGHTS FOR NON – CITIZENS AND
THEIR IMPLICATION
The law provide for partial transfer by a citizen for investment purpose approved
under Tanzania Investment Act in a joint venture to facilitate compliance with
development conditions as per section 19(2)(a)-(c) of the Land Act, Cap.113. Non –
Citizens cannot be allocated land for any other purpose other than investment. 2
Where derivative right is created to non – citizens, the land will be identified,
designated and gazette for investment purposes and allocated to the Tanzania
Investment Centre which shall create derivative rights to investors as per section
20(2) of the Land Act, Cap.113. Once derivative right expiry or terminated to a non –
citizen or foreigner or foreign company, the land will be returned or reverted to
2
Section 20(1), The Land Act, Cap.113

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Tanzania Investment Centre or any other authority as the Minister may describe in the
Gazette as per section 20(2) of the Land Act, Cap.113. However, all land acquired by
non – citizen are deemed to have no value expect for existed improvements for which
compensation may be paid as per section 20(3) of the Land Act, Cap.113.

LECTURE THREE
AN OVERVIEW OF CONVEYANCING
What is Conveyancing?
This refers to a legal mechanism for transfer of occupancy or ownership of land or
interest of land.
How to transfer ownership of interest in land. However, it deals with rights and
obligations of the parties at different stages in land transactions.
It involves drafting papers, signing, delivering or transfer or creating on property in
favour of such other person.
NOTE: The end result of conveyancing is TRANSFER OF OWNERSHIP. It can be
reached by delivering to another by creating interest.
Why knowledge of land law important?
a) Transfer depends on Land Tenure;
 How simple or complicated?
 Whether they confer security of tenure or not?
 What is the property?
 Land or Right of Occupancy or estate in the Land
 Term of years
b) Conditions of right of occupancy;
 Do they provide for transfer?
 Are there minimum requirements?
c) Rules of disposition
 Are there prerequisites? Eg; Consultations, fees, approvals
 Are there any special considerations? QuicquidPlantatur Solo solocedit,
Ad Coelum rule
 Are there limitations – as to nationality

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Who is a Conveyancer?
- In ordinary language, is a person who conveys something.
- In conveyancing, is a person who facilitates or helps parties to conveyance;
 Helps parties to make legally acceptable deal.
 Helps parties to avoid the pitfalls of transfer;
 Cases of fraudsters – due diligence processed. UK statute of fraud
1677 – essence of writing – Pira v. Mawji (1930) 1 TLR (R) 457,
Section 64 of the Land Act
CONVEYANCER: STANDARDS/QUALITIES
A person who is called a Conveyancer has the following standard or qualities;
i) Business like mind – negotiates with client and on behalf of clients.
ii) Technical know how;
 Process of conveyancing and associated procedures
 What documents to be prepared
 How should be prepared
iii) Knowledge on conduct of title investigation in connection with the creation
and assurance of interest in land
iv) A person with;
 Acute understanding
 Quick perception
 Retentive memory
 Sound judgment
 A due vigilance and;
 Caution, and active, and;
 Business like habits
v) Can speak about business he is engaged in
vi) Keeping safeguard on his tongue that nothing may slip out which may
prejudice interest of his client
IMPORTANT PRINCIPLES TO BE OBSERVED BY CONVEYANCER;
- Not practice without qualification
- Integrity, not to compromise, standard, innocence, sincerity

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 - Be ethical, beware of conflict of interest
- Not to handle matter of which has No experience
- Always exercise due diligence
CONVEYANCING PROCESS AND TASK OF A CONVEYANCER
The basis of conveyancing is section 2 of the Land Act which provides for what
disposition is.
CONVEYANCING PROCESS;
Process of conveyancing involves;
- Advising
- Drafting
- Attestation
- Filling of documents in appropriate Registries
NOTE:
- In Trustees, a person has to seek Consent from Administrator General
- In Company, when dealing with companies we look on percentage and not
average of members of the companies.
TASK OF CONVEYANCER
- Advise clients on legal and procedures
- Consider suitability of terms of transfer
- Assist client to prepare documents (drafting) for transfer of real property
- Assist client to investigate title to property
- Attestation of documents

RELEVANT LAWS ON DISPOSITION

Disposition of right of occupancy regulated by myriads of laws;
CORE LAWS
Land Laws
- Land Act, Cap.113
- Village Land Act, Cap.114
- Land (Forms) Regulations, 2001
- Unit Titles Act, 2008

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FACILITATIVE LAWS
Registration Laws
- Land Registration Act, Cap.334
- Registration of Documents Act, Cap.117

Contract Laws
- Law of Contract Act, Cap.345
Investment Laws
- Tanzania Investment Act, 1997
- EPZ Act, 2002

Financial Laws
- Stamp Duty Act, Cap.189
- Income Tax Act
Professional Laws
- Advocates Act, Cap.341
- Rules of Antiquate of Tanganyika Law Society
- Advocate Remuneration Order
Planning Laws
- Urban Planning Act, 2007
- Land Use Planning Act, 2007
- Local Government Laws (Act No.7 & 8 Subsidiary legislation)
Survey laws
- Land Surveys Act, Cap.324
Environmental and NR’s Laws
- Environmental Management Act and Regulations thereto
- Specific natural resources laws
Housing laws
- Unit Titles Act No.16/2008 and Regulations thereto

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 COMMON LAW DOCTRINES

1. QUICQUID PLANTATUR SOLO SOLO CEDIT

This principle provides that ownership of land from upward the land or from the
surface of land. This principle is applicable in Tanzania. Once minerals discovered in
any land which is granted with Granted Right of Occupancy the President under the
power vested with him under Land Acquisition Act may acquire such a land for public
interest and the owner of Granted Right of Occupancy will be compensated only for
the value of land and development as per section 22(2) of the Land Act and section 4
of the Land Acquisition Act. For example, a person purchase land which have
encumbrances and failure to exercise due diligence, any one exercise the right over
the land has to conduct due diligence as per section 97 and section 98 of the LRA.

2. AD COELUM RULE

This principle provides that owner of land owns anything over the land owns anything
over the land downwards. This principle is not applicable in Tanzania due to existence
of section 22(2) of the Land Act, Cap.113.

3. RULE OF CAVEAT EMPTOR (NOTICE)

This principle provides that the buyer of land should be aware for any defect of title
such as caveat, registered lease or mortgage (encumbrances), easements. This
principle is reflected under the Land Registration Act by providing a right for Official
Search, section 97 and 98 of the Land Registration Act, Cap.334.

4. INSURANCE PRINCIPLE

Unregistered land has no protection under the law. Unregistered land has only one
section in the Land Act which is section 23 of the Land Act. All questions will be for
the registered land unless it is openly stipulated that the question is of unregistered
land. Insurance principle provide compensation to any person who rely on the
information of the Registrar in case of any loss which cost on relying on the

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information. Section 100 of the Land Registration Act has the main section, followed
by section 97 and 98 on the compensation.

5. CAVEAT EMPTOR QUI IGNORANCE NO DEBUT QUOD JUS ALIEM EMIT

PRINCIPLE

This principle provides that led the buyer be ignorant of the amount and nature of
interest in land which gives little protection this principle is the same like caveat
emptor but it base on price of land. The seller or vendor may sale on the higher price
from the price of the Government as per section 33(1)(e) of the Land Registration Act.

PRINCIPLE OF SYSTEM OF LAND REGISTRATION

a) Indefeasibility or Impeachability

The one who is registered is protected from fraud as per section 22(1)(d) of the Land
Act, Cap.113.

b) Mirror principle

This means what is reflected in the memorial of land after official search must be the
same with what found in the Land Registry as per section 30 of the Land Registration
Act, Cap.334.

c) Curtain or Shield Principle

This refers to registration ensures that persons dealing with registered proprietors are
protected from the trouble and expense of going behind the Register as per section
33,34,97 and 98 of the Land Registration Act, Cap.334.

Or, curtain principle refers to a principle prohibits any person who is not having
interest over the title to inspect or to deal with rights of another person granted right
of occupancy. This principle is not applicable in Tanzania because Official Search and
right to obtain memorials of land is secured or provided under section 97 and 98 of
the LRA.

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 LECTURE FOUR
FRAMEWORK OF THE LAND ACT ON DISPOSITION OF GRANTED RIGHT
OF OCCUPANCY
Land Act regulates disposition of granted right of occupancy into three (3) groups of
Regulations;
i) Disposition of rights of occupancy – ss.36 to 43 of the Land Act (Part VI)
ii) Disposition affecting Land – ss.61 to 67 of the Land Act (Part VIII)
iii) Different types of dispositions;
 Sale of land (ss.73 to 76)
 Mortgage (ss.111 to 142)
 Easement (Part XI)
 Co – Occupancy (Part XII)

GENERAL PRINCIPLES ON DISPOSITION OF LAND.

SECTION 36
 Section 36(1) of the Land Act, as a general rule, disposition of right of
occupancy must comply with the provisions ss. 36 to 40 of the Land Act and
failure to comply with those provisions will be void.
 Section 36(2) of the Land Act provides for exception to the general rule is that,
not all dispositions require consent of the Commissioner. Example, lease,
mortgage, exchange, sale of the mortgaged land. However, there are
dispositions which requires Commissioner approval such as sale, creation of
easement, transfer, partition, grant and surrender.
 Sale
 Creation of easement
 Transfer – transfer rights from person to another person
 Partition - one GRO to many GRO‟s
 Grant – this may be wakf or any other
 Surrender – incase GRO has defects one has to surrender the GRO to the
respective authority while awaiting for the new GRO with no defects.

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The above are provided for under Regulation 4(2) of the Land (Disposition of Right of
Occupancy) Regulation made under section 37 of the Land Act.

 Section 36(3) of the Land Act provides that disposition require notification for
disposition accompanied by payment of rent and notification whether approved
or not.
 Section 36(4) of the Land Act provides that once the commissioner receive a
notification form he shall sign and endorse with the Official seal and send the
copy to the Registrar of Titles.
 Section 36(5) of the Land Act provides that the Registrar is prohibited to
Register any disposition unless he received a copy of notification from the
Commissioner for land which is having signature and seal of the Commissioner.
Example, someone registered a mortgage or lease to the Registrar whether
need approval or not but the Commissioner refused. However, the
Commissioner grant approval but Registrar refuse, this is due to notification
form.
 Section 37(1) of the Land Act provides that the Commissioner is vested with
power to consider whether he shall grant or not to grant approval for
disposition and once satisfied he may grant approval for disposition.
NOTE; Disposition which may be considered by the Commissioner are those
which require approval only as per Regulation 3 of the Land (Disposition of
Right of Occupancy) Regulation, GN No.74/2001;
 Assignment of Right of Occupancy which was granted to the assignor less
than 3 years before the proposed assignment is to take effect (to
transfer part of interest over the land to another person). Example,
investor wants to build a plot of land for certain period in consideration
as per section 37(2) of the Land Act.
 A loan granted on the security of every mortgage of the right of
occupancy or mortgage of a lease. Eg; Guarantor - section 37(3) of the
L.A
 Partition of land granted under a right of occupancy.

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  Creation of an easement
 Transfer – to another person and himself.
 Sale
 Grant i.e Gift, Wakf
 Surrender – incase there is any defect in GRO has to be surrendered and
apply for new GRO. i.e Land Form no.29,30,35 and 38.

SECTION 37

 Section 37(4) of the Land Act provides that disposition applied to the
Commissioner for land and the Commissioner is of the view the amount which
parties informed the Commissioner the value of transaction is undervalue
compared to the market value, the Commissioner may take action on the
nature of such disposition.
It is important to note that, valuation report is compulsory and one among
action which may be taken by the Commissioner is to instruct the Chief
Government Valuer to make valuation.
 Section 37(5) of the Land Act provides that any disposition carried without
obtain approval to the Commissioner is inoperativei.e having a sale agreement,
deed of gift or any document which showing that the land is transferred cannot
operate as the ownership unless application for approval is made and granted
by the Registrar. This provision was discussed by the Court of Appeal in the
case of Alibhai Aziz v. Bhatia Brothers, the court held that, a contract for
disposition of land which otherwise is proper but for lack of required consent is
void unless a party who has performed his or her party of the bargain may be
assisted by the court to enforce the contract against the default party.
However, consent is sought and is refused if the contract become
unenforceable. Also, it was made clearly in the case of George Shambwe v.
National Printing Co. Ltd (1995), the court held that, failure to obtain
approval from the Commissioner for Lands makes the agreement inoperative
but does not render the agreement non – binding in the sense that property
does not pass unless and until the approval of the Commissioner for Lands is

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 obtained. So, it is important to note that, any disposition has to be in writing
and get approval from the Commissioner.
 Section 37(6) of the Land Act provides that obtaining approval from the
Commissioner for land is not a permit to disregard other laws. Examples,
Planning laws, Environmental laws.
 Section 37(7) of the Land Act is not applicable.
 Section 37(8) of the Land Act provides that any person who wants to purchase
the land which is not developed as per condition of GRO must accompany a
commitment bond/affidavit.
 Section 37(9) of the Land Act provides that commitment bond shall show that
the purchaser will develop the land according to the condition of Granted Right
of Occupancy and the purpose of disposition is for the land to be developed.
Examples;
(a) Someone has GRO but not transfer, he wants to do business with another
person that is assignment.
(b) Two persons, one hold right of occupancy for commercial purpose and the
other person hold right of occupancy over the land, here is exchange.
(c) To use without transfer is a grant of unsufructuary right that is cannot sale
or mortgage.
(d) Disclaimer are those grant of wakf any person (3rd party) cannot claim over
the land.

SECTION 38

 Section 38(1) of the Land Act provides for powers of Commissioner when
dealing with notification. After the Commissioner receive notification from the
applicant he may require parties to disposition not to proceed with disposition
until;
 They delivered additional document to the Commissioner.
 They are applied and granted approval for disposition

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  Section 38(2) of the Land Act provides that, if the Commissioner is believing
that disposition has already taken place but notification is not delivered to him
he may require parties;
 To comply with section section36
 Not to proceed with disposition until they delivered additional
information or documents or they apply and granted approval for
disposition.
 Section 38(3) of the Land Act provides that where the Commissioner has
reasonable cause to believe either by his own motion or by representation
made to him or by fraud, take unfair advantage over other party to disposition
or the disposition is not being a gift or not for value. The Commissioner may do
the following;
 If the disposition is registered and it is within two years since the
registration the Commissioner may enter injunction to the Registrar for
rectification of land Register.
 If disposition has not yet taken place he may apply to the Registrar to
enter injunction so as to prevent disposition.
 He may issue notice either not to proceed or to apply for disposition.
 He may require parties to appear before him for explanation concerning
the disposition.
 Section 38(4) of the Land Act provides that incase the Commissioner issued
notice for hearing the parties after the hearing he will issue a notice on what
to be done. For example, claims concerning disposition you have to go to the
Commissioner.

SECTION 39

 Section 39(1) of the Land Act provides for application for grant of approval for
disposition shall be;
 Made in the prescribed form no.29,30,35 & 38
 Signed by all applicants – if GRO differs from signature of sale agreement
Affidavit of signature has to be prepared.

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  Accompanied by any information which is prescribed or may require by
the Commissioner.
 Accompanied by any fee which may be prescribed
 Section 39(2) of the Land Act provides that one application may be used for
grant of approval for two or more disposition and shall be treated as a separate
applicationi.e Land Form no.29. Other particulars includes proof of citizenship,
certificate of title, NIDA identity card, Passport and Commitment Bond.
 Section 39(3) of the Land Act provides that the Commissioner may require
relevant information in order to grant or not to grant approval and if relevant
document required the commissioner shall not grant approval until those
documents are submitted to him or if there is reasonable explanation why
those documents are not submitted.
 Section 39(4) of the Land Act provides that the Commissioner may consult any
organization for an advice concerning disposition and the commissioner shall
not be bound with such an advice and if such advice was filed out of time the
Commissioner will not use.
 Section 39(5) of the Land Act provides that the commissioner shall;
 Grant approval subject to condition (undeveloped land).
 Grant approval with any other condition as may enforce.
 Refuse to grant approval.
 Section 39(6) of the Land Act provides that the consent of approval of
disposition shall be;
 Personal to the application, grant approval goes to Registrar of Titles i.e
start a fresh.
 Not be assignable
 Be valid for one year from the date which it was given.
 Section 39(7) of the Land Act provides for a determination of the Commissioner
under section 38(5) of the Land Act shall be;
 In a prescribed Form no.33
 Signed by the Commissioner

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  The certificate of approval may be accompanied with demand of tax or
due.
 Copies to the Registrar
 Delivered to the registered address of the applicant.
 Section 39(8) of the Land provides that any person who received approval for
disposition must pay all taxes demanded, failure to pay there is no transfer to
be effected by the Registrar.
 Section 39(9) of the Land Act provides that after payment of taxes or due
demand by the Commissioner receipts shall be endorsed to the Certificate of
Approval.
 Section 39(10) of the Land Act provides that the Registrar is prohibited to make
any entry in the Register until he is satisfied that all taxes and due demand by
the commissioner are paid.

SECTION 40

 Section 40(1) of the Land Act provides for reconsideration for application for
approval where by the Commissioner provides approval which provides hardship
for the applicant to fulfill the applicant may apply to the Commissioner for
amendment of condition or granting without any condition.
 Section 40(2) of the Land Act provides that a request for reconsideration shall
be;
 In a prescribed Form no.34
 Accompanied by any information required by the Commissioner.
Example, Commissioner refuse to give you approval but notification can
be used for reconsideration in granting of approval.
 Accompanied by any fee which may be prescribed.
 Section 40(3) of the Land Act provides that when the Commissioner determine
reconsideration shall take into account as per section 36 to section 45 of the
Land Act.

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SECTION 41

 Section 41 of the Land Act provides for conditions or factors which the
Commissioner must consider or take into account when dealing with application
for grant of approval.
 Section 41(1) of the Land Act provides that it is presumed that the
Commissioner granted approval because the presumption can be rebutted.
 Section 41(2) of the Land Act provides that when determining approval for
disposition, the Commissioner shall take into account that the application for
approval is presumed to be granted with regard to the following;
 If the seller was complied with condition to own such a land
(commitment bond).
 If the transfer is not undervalued
 Where the applicant occupying other lands in Tanzania and if so he or
she complied with condition to own those land.
 If the purchaser or applicant has any Criminal conviction relating to
dishonest, fraud, corrupt.
 If the disposition is concerning the risk group.
 Section 41(3) of the Land Act provides if the Commissioner is of the view that
the transaction is undervalue, he may appoint Government valuer so as to
conduct new valuation.
 Section 41(4) of the Land Act provides that an application for approval shall be
determined within 60 days if there is no other arrangement between
Commissioner and parties.

NOTE: After expiration of 60 days and without any other arrangement such disposition
shall be deemed refused, and incase an applicant aggrieved must apply for
reconsideration using Form no.34.

 Section 41(5) of the Land Act provides that after expiration of 60 days without
any arrangement application may be refused.

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  Section 41(6) of the Land Act provides for requirement to obtain approval shall
not be the permit for not complying with Planning law.
 Section 41(7) of the Land Act provides for the powers of Minister (Not
applicable)

SECTION 42

 Section 42 of the Land Act generally provides for power to surrender

 Section 42(1) of the Land Act provides for an occupier of the granted right of
occupancy may occupy whole or part of the Land.
 Section 42(2) of the Land Act provides that the Commissioner shall not accept
surrender unless the following factors are considered;
 All rents, tax and dues are paid.
 The land will not create any liability to the Government.
 The land is not having lease, mortgage, charge or encumbrances
 The land is not subject to any action in court.
 If the land is not subject to any action by trustees in bankruptcy.
 The surrender must not be design to defeat the right of spouse.
 If the land is owned by more than one person (co-occupier) each
occupier must consent.
 If the land is surrendered for natural love and affection.
 Section 42(3) of the Land Act provides that if the Commissioner is of the view
that the applicant for surrender cannot be able to pay tax or dues due to
property the Commissioner may remit whole or part of the money to be paid.
 Section 43 of the Land Act provides for procedure to surrender (cancel old one
granted right of occupancy and issued new title).

21
 DISPOSITION AFFECTING LAND.

Section 61 to section 67 of the Land Act generally is dealing with instruments for
disposition (Forms and documents).

SECTION 61

 Section 61(1) of the Land Act provides that no disposition of granted right of
occupancy, lease or mortgage shall be disposed without complying with the
Land Act.
 Section 61(2) of the Land Act provides that section 166 shall not apply in
disposition of customary land or in disposition of land owned under customary
law unless there is a provision which allowing such customary land to be
disposed in accordance with the Land Act. Example, Granted right of
occupancy cannot apply customary law, so the Land Act will not govern such a
transaction will be governed by customary law to affect transfer.
 Section 61(3) of the Land Act provides that disposition of customary right of
occupancy shall be governed by customary law.

SECTION 62

 Section 62 of the Land Act provides that this section is based specifically on
instruments or documents for disposition.
 Section 62(1) of the Land Act provides that all instruments affecting disposition
must be in a prescribed form basing on such as a general rule.
 Section 62(2) of the Land Act provides that no instrument affecting disposition
shall operate as a transfer of right of occupancy, sale, or assign unless
registered under the Land Registration Act (General Rule).
 Section 62(3) of the Land Act provides that the requirement for registration
shall not be applied to disposition exempted from the registration (exception).
 Section 62(4) of the Land Act shall not apply or affect the operation of any
contract for a disposition under this Act. Once, a contract of sale, mortgage,

22
 lease, gift, transfer or assignment concluded shall have legal force regardless
registration made or not.

SECTION 63

 Section 63 of the Land Act provide generally on how instruments or documents

for disposition should be executed.
 Section 63(1) of the Land Act provide for execution of instrument to Land shall
comply the Land Act and other laws relating to execution of documents all
parties to the disposition must sign.
 Section 63(2) of the Land Act provide for execution of instruments for land
shall consist signature or thumb print or other mark which shall be evidenced
acceptance.
 Section 63(3) of the Land Act provides for execution of instrument for land by
corporate, association, co-operative societies or any other organization shall be
in the manner authorized in the constitution of such an organization or by any
law enforce by that time.

SECTION 64

 Section 64 of the Land Act generally this section provide for the requirement
all contract for disposition must be in writing.
 Section 64(1) of the Land Act, a contract for disposition of right of occupancy
or mortgage shall be enforceable;
 If it is in writing
 Must be signed by both parties to the agreement.
 Section 64(2) of the Land Act, a contract for disposition may be made in using
a prescribed form.

NOTE: What are contracts of disposition under the Land Act?

 Contract for disposition of right of occupancy (sale agreement) – LF#38

 Contract for Mortgage (Mortgage Deed) – LF#54
 Contract of lease (lease agreement) – LF#55

23
The above listed contract for disposition may be customized as per section 64(2) of
the Land Act. Other forms shall not be customized because the law provide for only
contract of disposition.

 Section 64(3) of the Land Act, not applicable for minister.

 Section 64(4) of the Land Act provides that the requirement for writing and
signature in instruments for disposition shall not apply;
 To a short term lease < 5 years
 Shall not apply to disposition by order of the court i.e Drawn Order,
Judgment.
 Shall not apply to the disposition by operation of law. Example, change
of company name, resolution should be presented, deceased estate and
granted right of occupancy owned under customary law.
 Section 64(5) of the Land Act provides that the requirement of writing and
signature for instruments for disposition shall not affect;
 Creation or operation of implied or constructive trust.
 The making or operation of a will.
 An arrangement recognized by under customary law for temporary
disposition of customary interest in land.

QUESTION: Discuss disposition without notification to the commissioner is void? The

answer is, any disposition require approval or not shall notify the commissioner as per
section 36 of the Land Act. However, development of land is 3 years require approval
but which exceed 3 years shall not require approval.

SECTION 65

 Section 65 of the Land Act, generally this section provide for the power to the
owner of the land to dispose the land to himself or herself.
 Section 65(1) of the Land Act provides that a person may dispose land from
himself to himself and other person or may dispose from himself and other
person to himself alone.

24
  Section 65(2) of the Land Act provides that disposition which is referred under
section 65(1) of the Land Act is enforceable like other disposition such as sale
assignment and any other disposition.

SECTION 66

 Section 66 of the Land Act, generally provide for covenant.

 Section 66(1) of the Land Act provides that the covenant under the Land Act
will apply to valuable consideration;
 Sale or transfer of right of occupancy
 To create, transfer or assign a lease.

NOTE: Lessee have an exclusive right to lease of a granted right of occupancy.

 Section 66(2)of the Land Act provides for the implied covenants provided
under section 67 of the Land Act shall apply in every instrument for sale or
transfer of granted right of occupancy or creation, transfer or assignment of
lease.
 Section 66(3) of the Land provides for the implied covenants in an instrument
under the Land Act (section 67) shall be enforceable even if are not included in
an instrument.
 Section 66(4) of the Land Act provides for the implied covenants under the
Land Act (section 67) may be negated valid or extended;
 By an express term in an instrument
 By written memorandum executed by both parties
 Incase of short term lease it is not necessary for writing but consent
only.
 Section 66(5) of the Land Act provides that the implied covenant in instrument
under section 67 of the Land Act shall related to any act or omission of a
person who want;
 To create, transfer or assign the right of occupancy, lease or mortgage.
 To all persons through whom that person derives title otherwise than
purchase of valuable consideration.

25
NOTE: The provision of section 66(5) of the Land Act shift the implied covenant to the
person who derive title from the owner of granted right of occupancy.

SECTION 67

 Section 67 of the Land Act provides for the implied covenants, the following
are the implied covenants in instrument for sale or transfer of granted right of
occupancy and creation, assignment or transfer of lease.
 Section 67(a) of the Land Act provides for the disposition of granted right of
occupancy shall be taken as a transfer of all rights existing over the land.
 Section 67(b) of the Land Act provides for the disposition or lease of granted
right of occupancy instruments shall not be the defence for not exercise due
diligence or notice provided under the law.

Once a person purchase a plot of land has to make due diligence or notice but failure
to exercise due diligence the law will not protect you. So, it is important to have
notice such;

 Actual notice – section 67(b)(i) of the Land Act.

 Imputed notice – section 67(b)(ii) of the Land Act.
 Constructive notice – section 97 & 98 of the Land Registration Act.
 Section 67(c) of the Land Act provides for the covenants under instruments
shall apply to grantee, transferee, assignee or sub – lessee in case of lease.

26
 LECTURE FIVE
INVESTIGATION OF TITLE AND PRE – CONTRACTUAL RISKS
What is Title Investigation?
Means by which the buyer ensures that seller does won title and can convey it.
Why Title Investigation?

Due to rule of caveat emptor meaning let a buyer who ought not to be ignorant of the
amount and nature of the interest which he is about to buy exercise proper caution
(buyer beware).

REQUIREMENT OF NOTICE
1. ACTUAL NOTICE COMPLIANCE (DUE DILIGENCE) – SS.34,97 & 98 of CAP.334,
S.67 of the Land Act, Cap.113
- Notice obtained by searching or inspecting Land Register
- Intended to give the searcher information about subsisting memorial
- A person is deemed (presumed) to have actual notice of all facts, which he has
actual knowledge, of no matter how that knowledge was acquired.

ON PARTIES

For natural persons, lawyer must satisfy himself that seller has required capacity to
contract. He must therefore interalia;

 Confirm citizenship
 Lawyer will need to verify
 The identity card or passport
 Confirm age, must be of aged of majority as per the law otherwise there
should be a guardian to act on behalf
 Ensure there is free consent as lack of consent will affect the validity of the
subsequent contract
 Ensure that party is no undischarged bankrupt

CORPORATE PERSONS

- BRELA Registered – Company search – ss.107 to 109 of the Cap.212

27
 - Need to verify legality and about its registration status;
 What is share holding structure?
 If majority are citizens – Local company
 If majority are non – citizens will be foreign company

Under the Companies Act [CAP 212 Revised Edition, 2002], a company can be foreign
if it is incorporated outside Tanzania and has established place of business in
Tanzania before or after appointed day.

 Lawyer should check powers of foreign company to operate in the

country and acquire or dispose property

SOCIETIES AND ASSOCIATION

For Societies and Associations (Societies Act – Cooperative Societies, Political

Societies, SACCOS) must be registered under relevant laws.

 Capacity to dispose
 Constitution of Association

NOTE: Registered Trustees has to seek consent of Registrar of Trustees

(Administrator General)

2. CONSTRUCTIVE NOTICE (Comply with constructive notice – due diligence)

- Constructive notice is implied in transactions relating to land
- Standard of prudence of a reasonable man
- It requires on site visit, inspection of land

Questions to be asked by purchaser lawyer;

 Question has to be asked on particular property of the owner

 Official search
 Question should be precise and specific

28
Buyer should also commission valuation to be undertaken;

 Valuation may protect buyer from suffering possible loss due to under –
valuation or over valuation
 Surveyor may help know the boundaries if do correspond with map or plan
3. IMPUTED NOTICE
- The relations of the lawyer to client create Principal – Agent relationship
- Any actual or constructive notice which the agent receives, is imputed on
Principal
- Agent must relay every information he get to the client
- Must act in good faith and in high standard of professionalism (Sections 134,
163, 164, 178 and 189 of the Law of Contract Act, Cap.345)

SUMMARY OF PRE – CONTRACT INVESTIGATION

- Receiving instructions
- Making requisitions and discoveries
- Conducting on site visit and inspection
- Conducting official search
- Conducting surveys or valuation
- Drafting MoU or Exclusivity Agreement

SPECULATORY OR PREDATORY MARKET STRATEGIES AND RISKS.

- Gazumping
- Gazenduring
- Pre – Contractual Agreements, Anticipatory conducts – need exclusivity
agreement
- Caveat emptor – need notice. Vendor and purchaser may need to protect their
interest against deal regarding the same property Viz. Gazumping (Seller) and
Gazundering (Buyer).
- Enter into special agreement, Qn; “Is an agreement to negotiate recognized
as an enforceable contract?”
- Loss for breach must be easily ascertainable

29
In the case of Walton Stores (Interstate) Ltd v. Maher (1988) 164 CLR 387,
extended the application of promissory estoppel to a situation where there was no
„pre – existing legal relationship.‟ However, the plaintiff will be required to prove;

- He assumed that a particular relationship existed (or would exist) between the
parties;
- The defendant induced the plaintiff to adopt that assumptions or expectation;
- He acted in a certain way or refrained from acting in reliance on assumptions
or expectations;
- The defendant (vendor) knew or intended him or her to do so;
- The plaintiff action or inaction will cause detriment if the assumption or
expectation is not fulfilled and;
- The defendant failed to act to avoid that detriment whether by fulfilling the
assumptions or expectation or otherwise

Exclusivity agreement may contain more or less of the clauses below;

- Parties
- Description of property
- Good faith clause
- Consideration
- Period of exclusivity
- Non – disclosure of information
- Task to be done by parties
- Any breach

30
 EXCLUSIVITY AGREEMENT

This exclusivity agreement is entered this………………..day of…………………..2021

BETWEEN

MWAISA MTU MBAD of P.O BOX 100, Kinondoni, Dar es salaam (herein after referred
to as „Vendor’)

AND

CHAKUPEWA SIJAONA of P.O BOX 200, Kihonda, Morogoro (herein after referred to as
„Vendee’)

WHEREAS, the prospective vendor agree to be bound by this agreement for the time
agreed for the property located at Plot No.11, Block D, Mawasiliano

AND WHEREAS, parties agreed to be bound by this agreement for the time agreed
between parties for the property located at Plot No.11, Block D, Mawasiliano.

AND WHEREAS, Both parties agreed to be bound by terms of this agreement for the
duration of six (6) Month from the date of this agreement.

WHEREFORE, the parties have agreed here in below as follows;

1. DESCRIPTION OF THE SUBJECT MATTER

The subject matter is a land with certificate of Title No.2216, Plot No.5, Block No.3,
Mawasiliano Area situated at Kinondoni, Dar es salaam.

2. GOOD FAITH CLAUSE

i) That, the parties have in good faith entered into this exclusivity agreement
ii) That, the exclusivity agreement or period in one month commencing from
the date of signing this agreement and such period shall end upon the
signing of contract of sale
iii) That, during the exclusivity period the buyer becomes unable to buy the
property he immediately given written notice to that effect to the seller
and the period of exclusivity shall thereupon cease.

31
 3. CONSIDERATION
i) That, the buyer hereby deposits 5% of the asking price to be deducted from
the agreed sale price or returned should the transfer not materialize
ii) That, the said sum shall be deposited in an Escrow Account to be opened
specifically for that purpose
4. PERIOD OF EXCLUSIVITY

That, the vendor and purchaser are entering into this agreement in respect of
described subject matter that exclusive date is from 7 th December, 2021 to 30th
January, 2022 upon which purchaser will pay the money for the sale of the prescribed
land with regards to terms provided under this agreement.

5. NON – DISCLOSURE OF INFORMATION

i) That, the parties shall not disclose information regarding this transaction
throughout the period of exclusivity
ii) That, neither the seller nor anyone acting for or on behalf of the seller will
be during the exclusivity period seek buyers for the property or give access
to the property to any prospective buyer or other person acting on behalf or
agree with anyone other than the buyer
6. TASK TO BE DONE BY PARTIES
i) That, the seller shall appoint an agent to act for him on the sale and to
draft contract for sale and such other information as may be needed by the
buyer
ii) That, the buyer shall conduct search and make inquiries and deal
expeditiously and in accordance with good conveyancing practice with draft
contract and such title and other information relating to the property as
shall be received from the seller from time to time
iii) That, in case the buyer will need to obtain mortgage in connection with the
purchase of the property as may be required by any surveyor or valuer
appointed by the buyer for the purpose of valuing or surveying the land

32
 7. BREACH OF TERMS

In case of any breach by either party then, the defaulting party shall pay 1% of the
value of the property or an equivalent of the down payment shall be forfeited.

IN WITNESS WHEREOF, this agreement been executed and delivered as on the date
and in the manner is shown here in below;

SIGNED and DELIVERED at Dar es salaam by the

Said MWAISA MTU MBAD who is known to me
personally/ identified to me by
……………………..………………………. and ______________________
the latter being known to me this......... day VENDOR
of................2022

BEFORE ME:
Name: ………………………………….........
Signature: ……………………………………...
Date: ……………………………………………..
Address:.................................
Qualification: COMMISSIONER FOR OATH

SIGNED and DELIVERED at Dar es salaam by the

Said CHAKUPEWA SIJAONA who is known to me
personally/ identified to me by
……………………..………………………. and ______________________
the latter being known to me this......... day PURCHASER
of................2022

BEFORE ME:
Name: ………………………………….........
Signature: ……………………………………...
Date: ……………………………………………..
Address:.................................
Qualification: COMMISSIONER FOR OATH

DRAWN BY:
JOJO MOPAO
Roll no.8367
L & A CHAMBERS
P.O BOX 1120
DAR ES SALAAM.

33
Other important cases;

- Patromec Inc. v. Petroleo Brasiliers (2005) EWCA Civ.891

- Walford v. Miles (1992) 2 AC 128 HL

SYNOPSIS OF DISPOSITION BY OPERATION OF LAW

There are other types of transmissions (disposition) of lands other than normal
transfers which results to change of ownership over the land or registered interest.

This transmission may sometime originate out of free will of the property owner.

Different transmission such as those originating from previous voluntary and

involuntary actions of the property owner eg. failure to liquidate a mortgage may
result to transfer under power of sale by the mortgagee (S. 51 LRA CAP 334/LF. No
52).

There are specific provisions of the Land Registration Act cap 334 which deals with
different types of transmission

a) Sections 67 - 70 of LRA of CAP 334 deals with transmission upon death

(Application by personal legal representative)
b) Section 71 provides for any person who claims to have become entitled to any
estate or interest on registered land to apply to the RT to be registered as the
owner of such interest on land.
c) Section 72 deals with titles acquired by adverse possession

Relevant forms: (Land Registration Rules, GN 117 of 1954)

i) L.R. 20 (Sec 67) – Application by personal legal representative

ii) L.R. 22 (Sec 68) – Assent to bequest of a R/O
iii) L.R. 24( Sec 69) – Application by survivors of joint owners
iv) L.R. 25 (Sec 71) – Application for registration of a transmission by operation
of law
v) L.R. 26 (Sec 72) – Application for registration of a title of a registered land
by adverse possession.

34
 LECTURE SIX
STAGES OF CONVEYANCING
It involves the following stages;
 Pre – contractual stage
 Contractual stage
 Conveyancing
 Approval stage
 Registration

CONVEYANCING STAGES/STEPS/GUIDELINES.

1. TO RECEIVE INSTRUCTIONS

This involves letter of engagement and retainer agreement

2. REQUISITE AND DISCOVERY OF DOCUMENT

The conveyance must request all the documentation relating to ownership of the land
before making the client to incur costs which are unnecessary.

3. TO CONDUCT ON SITE VERIFICATION

The purpose of conducting on site verification is to determine patent defect at the

place where the land is located. Eg; House crack, the knowledge of the buyer is to
conduct interrogation with neighbor at the plot subject to disposition.

How to protect latent defect?

Latent defect can be protected by preparing a set of question known as questionnaire

which must be answered by the seller. When preparing sale agreement latent defect
shall be reflected in the part of warranty and representation.

What is warranty?

These are minor terms which in case of breach they cannot lead to determination of
sale agreement but they can lead to compensation to the affected party.

35
What is representation?

These are all facts which lead are party to the agreement to decide on whether to
conclude the agreement or not and their forming of the contract or sale agreement.
Once any party decide to enter into sale agreement and specifically for a purchaser
and soon after execution of sale agreement become to realize that a certain fact
which form root of the contract is not true, such fact will be treated as
misrepresentation.

Misrepresentation is one among a factor which can lead to termination of a contract

or sale agreement as per section 58 to 59 of the Law of Contract Act, Cap.345. also,
section 67(b)(i)(ii) of the Land Act, Cap.113.

Under this stage, the following activities must be done;

 Visiting the property

 Preparing vendors – purchaser questionnaire. The purpose of vendors –
purchaser questionnaire is to determine latent defect which cannot be easily
seen.

NOTE: Answer by the vendor is the questionnaire shall be included in the sale
agreement on the part of warranty and representation.

WARRANTY AND REPRESENTATION

These are the terms which are minor to the contract or sale agreement which upon
breach cannot turn the contract but may lead to compensation to the purchaser.

REPRESENTATION

The opposite of representation is misrepresentation as per the Law of Contract Act,

Cap.345. Misrepresentation can lead to termination of contract because the injured
party relied from wrong information which leads him to conclude a contract as per
ss.57 to 59 of the Law of Contract Act.

36
 4. TO CONDUCT OFFICIAL SEARCH

Under section 97 and 98 of the Land Registration Act, Cap.334 as well as section
67(b)(i)(ii) of the Land Act, Cap.113. The purpose of Official search is to know if there
is registered encumbrances in a title. Eg; Lease, Mortgage, Caveat. Official search
must be conducted at the office of Registrar of Title during office hours.

NOTE: Effect of purchasing granted right of occupancy without conducting official

search is that, the law prohibits the buyer or purchaser to institute the case for the
purpose of obtaining compensation from the vendor due to any encumbrance which
can be identified during official search.

5. PREPARING AND EXECUTION OF EXCLUSIVITY AGREEMENT

What is exclusivity agreement?

This is an agreement which provides for gazumping and gazenduring parties to
disposition.

Gazumping: This means vendor is prohibited either to increase the purchase price or
to sale the land to another purchaser who is not a party to exclusivity agreement
(lock in).

Gazenduring: This means that a purchaser is prohibited to decrease a purchase price

or to refuse purchasing the property which is subject of exclusivity (lock out).

Historical background on enforcement of exclusivity agreement in common wealth

countries

Generally, exclusivity agreement are not agreement but courts in Common Wealth
countries used the principle of estoppels to enforce exclusivity agreement. Estoppel
means stay from the promise. In the case of Walford v. Miles, In this case the court
held that, exclusivity agreement is not an enforceable because it contain past
consideration which is not a consideration at all.

Also, in the case of Walton Stores v. Maher, in this case the court held that,
exclusivity agreement is not an agreement under the law but due to the fact that all

37
parties executed the agreement by applying the principle of estoppel parties are
prohibited to deny what they agreed.

ENFORCEABILITY OF EXCLUSIVITY AGREEMENT IN TANZANIA.

Due to the fact that exclusivity agreement is one among practice in common wealth
countries which are not having any effect in disposition of land in Tanzania, so the
court if wishes to enforce exclusivity agreement shall be enforceable under section
180(1)(b) of the Land Act, Cap.113.

NOTE: The court is having discretion either to enforce or not to enforce but if the
court will opt to enforce its legality will be under section 180(1)(b) of the Land Act,
Cap.113

6. PREPARING AND EXECUTION OF SALE AGREEMENT

The conveyancer must prepare and lead parties to execute sale agreement. The
purpose of using sale agreement is to include warranty and representation. However,
to include terms which are not found under Land Form no.38

38
 SALE AGREEMENT
This AGREEMENT is made this 1st day of January, 2022
BETWEEN
JOHN MICHAEL of P.O BOX 180, Dar es salaam (herein after referred to as “Vendor”)

AND
MTU KWAO of P.O BOX 200, Dar es salaam (herein after referred to as “Purchaser”)

WHEREAS,

The vendor is willing or desirous to transfer a property situated at Sinza Kumekucha,

Kinondoni Municipality within Dar es salaam Region with CT No.22010, Block D, Plot
No.2.

AND WHEREAS,

The purchaser is willing to purchase or but the above described property to the
vendor for consideration which will be agreed in this agreement

AND WHEREAS,

Both parties to this agreement are agree to be bound by the terms of this agreement
set out here in below;

1. WARRANTY AND REPRESENTATION

(i) That, the vendor warranty and represent the purchaser that the property is
not subject to boundary disputes or any court proceedings.
(ii) That, the vendor warranty and represent the purchaser that the property is
not subject to matrimonial rights.
(iii) That,The vendor warranty and represent the purchaser that the property is
free from flood.

39
 2. COVENANTS
(i) That, the vendor covenant to the purchaser that he will issue vacant
possession soon after execution of sale agreement.
(ii) That, the vendor covenant to the purchaser after conclusion of this sale
agreement the vendor will leave the vacant possession of the property
before expiration of 7 days since the conclusion of contract.
3. TERMS AND CONDITIONS
3.1. CONSIDERATION
(i) That, the consideration shall be one hundred million (Tshs.100,000,000/=)
payable in two installment as follows;
a) The first installment shall be Tshs.50,000,000/= payable during
execution of this agreement in Account No. 01J1002000, CRDB.
b) The second installment of Tshs.50,000,000/= shall be paid after 30 days
from the date of execution of this agreement in Account No.8812402258,
NMB
3.2. VACANT POSSESSION

That, the vendor the vendor will leave vacant possession after the payment of second
installment.

4. BREACH

Incase of breach of term number one and two of this agreement the following will be
the effect of the party who are in breach as follows;

a) If a purchaser will fail to pay the consideration amount, the vendor will be
entitled to 25% of the consideration amount.
b) Once, the vendor will fail to leave vacant possession after payment of the
consideration amount, the purchaser will be entitled to 5% of the consideration
amount per each month until the vendor give vacant possession.

40
 5. TAXES AND DUES

That, the vendor will be responsible to pay Capital Gain Tax while other taxes shall be
payable by the purchaser.

6. LAW GOVERNING

The law governing this agreement are laws of Tanzania.

WHEREFORE, parties to this agreement execute this agreement by putting there
signatures here in below;

SIGNED and DELIVERED at Dar es salaam by the

Said JOHN MICHAEL who is known to me
personally/ identified to me by
……………………..………………………. and ______________________
the latter being known to me personally VENDOR
this......... day of................2022

BEFORE ME:
Name: ………………………………….........
Signature: ……………………………………...
Date: ……………………………………………..
Address:.................................
Qualification: COMMISSIONER FOR OATH

SIGNED and DELIVERED at Dar es salaam by the

Said MTU KWAO who is known to me
personally/ identified to me by
……………………..………………………. and ______________________
the latter being known to me personally PURCHASER
this......... day of................2022

BEFORE ME:
Name: ………………………………….........
Signature: ……………………………………...
Date: ……………………………………………..
Address:.................................
Qualification: COMMISSIONER FOR OATH

DRAWN BY:
JOJO MOPAO
Roll no.8367

41
L & A CHAMBERS
P.O BOX 1120
DAR ES SALAAM.

7. PREPARATION FOR APPLICATION FOR DISPOSITION.

Application for disposition must be made by using prescribed form accompanied by
different documents which are required under the law depending with the property
which is subject for disposition;
a) Forms for application of approval such Land Forms No.29,30 & 35
b) Accompanying documents in the application for approval such as sale
agreement is the replacement of Form No.38 which is used to show the
consideration amount
Accompanying documents;
c) Spousal consent or affidavit of marital status, this document show if there
is consent from spouse or no consent, so the vendor swear an affidavit of
marital as per section 58 and section 59 of the Law of Marriage Act, Cap.29.
d) Commitment Bond (undeveloped land), the purpose is for the purchaser to
promise the Commissioner if he will develop the property within time as per
Section 37(8)(9) of the Land Act, Cap.113.
e) Valuation report from Chief Government Valuer, this is to enable the
Commissioner to determine Capital Gain Tax if it is paid according to value of
land as per section 41(3) of the Land Act, Cap.113.
f) Taxes which the applicant must make sure that have been paid, when filling
application for approval;
 Capital Gain Tax (10%) and obtain Capital Gain Clearance Certificate
from TRA as per section 39(8) of the Land Act, Cap.113.
 Payment of land rent, if any and to obtain Land Rent Clearance
Certificate as per section 39(8) of the Land Act, Cap.113.
 Payment of property tax and to obtain property tax clearance
certificate from TRA.

42
  Payment of stamp duty and to obtain a stamp duty receipt to TRA (1% of
consideration amount but must not exceed Tshs.500,000/=)
g) Fee payable for application for approval for disposition, the applicant will be
required to pay fee for application for application and to obtain receipt for
payment of fee. However, the scale for fees are provided under the Land
(Fees) Regulation GN No.83 0f 2001.
h) Filling the application to the Commissioner or any Authorized Officers
(Local Government), the document to be filed are of the following;
 Application form – Land Forms No.29,30 and 35
 Sale agreement
 Spousal consent/Affidavit
 Commitment bond, if any
 Valuation report
 Capital Gain Clearance Certificate
 Land Rent Clearance Certificate
 Property Tax Clearance Certificate
 Stamp duty receipt
 National Identity card or Passport
i) The Commissioner may issue Certificate of Approval and he is required to sign a
notification for disposition – Land Forms No.29 and 33. It is important to note
that, once the Commissioner or Authorised Officer issued Land Form No.33 it
means that the disposition is approved.
8. REGISTRATION OF TRANSFER TO THE REGISTRAR OF TITLES
Under section 39(10), section 62(1)(2) of the Land Act, Cap.113, section 8 and 41 of
the Land Registration Act, Cap.334.
a) Documents to be filed to Registrar of Titles;
- Land Forms No.29 & 33
- Registration of GRO
- Tax Clearance Certificate
- Property Tax
- Land rent

43
b) To pay registration of transfer fee and to submit the application.
9. TO OBTAIN A REGISTERED GRANTED RIGHT OF OCCUPANCY
10. HANDLING THE REGISTERED GRANTED RIGHT OF OCCUPANCY TO THE
CLIENT
11. BILLING THE CLIENT

44
 LECTURE SEVEN
PROCEDURES IN THE TRANSFER OF GRANTED RIGHT OF OCCUPANCY
a) To conduct due diligence – SS. 97 & 98 the LRA
b) To obtain certificate of title
c) Payment of Land Rent Clearance Certificate
d) To conduct official search – section 34 of the LRA
e) To conduct onsite inspection (latent/patent defects)
f) Original valuation report (Municipal taxes and rates, asset valuation)
g) Draft and execute sale agreement – SS.61 to 64, ss.36 to 41 of the Land Act,
Cap.113
h) To obtain Capital Gain Tax Certificate from TRA as per ss.39(8), 39(10) of the
Land Act, Cap.113
i) To pay stamp duty – section 90 of the Stamp Duty Act, Cap.89
j) Processing consent to disposition – Land Forms No.29 & 30;
 Submit relevant documents to the Commissioner for Lands for perusal;
- Deed of transfer duly executed (in triplicate)
- Certificate of right of occupancy
- Original valuation report
 Original certificate of clearance of land rent
 Property tax clearance certificate
 Sale agreement duly executed
 Sale agreement duly executed
 Copy of passport of buyer or seller
 Commitment bond (Undeveloped land)
 Spousal consent or affidavit – Section 114 & 161 of the Land Act, section
59 of the Law of Marriage Act, Cap.29
 If company;
- Copy of passport of two directors – certified
- Copy of certificate of incorporation & MEMARTS – certified
- Board resolution approving disposition
 Payment of approval fee
45
  Payment of stamp duty
NOTE: Land Form No.33 – Certificate of Approval of disposition Commissioner must
approve the transaction is valid, then, you go TRA for payment of Capital Gain Tax.
k) To pay and obtain Capital Gain Tax (CGT)
l) Registration of Transfer (Tender all documents, pay stamp duty and pay
registration fees)
m) Registration of Titles –section 62(1) of the Land Act, Cap.113 & section
41(1)(2) of the Land Registration Act, Cap.334
n) Delivery title to transferee
PROCEDURE FOR TRANSFER OF REGISTERED LAND IN TANZANIA (MKURABITA)
1. On site verification
2. Official search application
3. Official search preparation and report
4. Sale contracts
5. Notification of disposition – Land Form no.29
6. Valuation report
7. Payment of stamp duty and Capital Gain Tax
8. Payment of rent
9. Notice from Land Office giving conditions for approval
10. Approval report from the land administration section
11. Approval from the Authorised Officer in the District – Land Form No.33
12. Approval and registration of a disposition – Land Form no.30 & 35
13. Entry in the presentation book certificate
14. Distribution of documents
15. Assessment of the document by Assistant Registrar Officer
16. Registrar‟s Assessment
17. Registration
18. Issuance of official copy of the registered title
19. Delivery of a copy of the Registered Title

46
 PROCEDURES FOR TRANSFER OF REGISTERED LAND IN TANZANIA
(DOING BUSINESS IN TANZANIA)
1. Official search
2. Obtain certificate of title
3. Obtain land rent clearance certificate
4. Obtain a property tax clearance certificate
5. Request a valuation report
6. Government valuer inspects property
7. Notarization of the sale agreement and transfer deed (1 day)
8. Obtain approval for the transfer
9. Obtain Capital Gain Certificate from TRA (14-21 days)
10. Transfer deed is delivered to Land Officer for registering the buyer‟s
PROCEDURES FOR TRANSFER OF REGISTERED LAND IN TANZANIA
(TLS/BEST REPORT)
1. On site verification
2. Vendor‟s disclosure questionnaire or due diligence
3. Official search preparation and report
4. Survey‟s (Valuation, Cadastral Report)
5. Draft and execute sale agreement and deed of transfer
6. Obtain land rent clearance certificate
7. Payment of Capital Gain Tax and Obtain CGT Certificate
8. Process approval to disposition
9. Pay stamp duty
10. Registration of transfer
11. Delivery of a copy of a registered title

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 PROCEDURES FOR TRANSFER OF THE RIGHT OF OCCUPANCY IN TANZANIA
(GONDWE)
1. To conduct search, if acting for transferee obtain transferor‟s response to the
questionnaire
2. If search and the questionnaire disclose an encumbrance. Eg; mortgage
3. Conduct on-site inspection in order to form some opinion about state of repair
and value of the property
4. Establish current open market value of property
5. Draft sale agreement specifying date of completion, if a party resides outside
Tanzania his signature must be notarized by Notary Public
6. Draft deed of transfer adopting the format specified in the Land Registration,
Cap.334, 1st schedule of Land Registration Rules. If a party resides outside
Tanzania his signature must be notarized by a Notary Public
7. Advise parties to execute engrossed sale agreement and deed of transfer
simultaneously
8. Execution of deed of transfer and sale agreement
9. Obtain certificate of clearance of land rent in respect of the property sold
10. Establish cost of construction of the property by reference to actual cost or
market cost
11. Complete Capital Gain Tax Questionnaire
12. Submit Capital Gains Tax Questionnaire to Income Tax Department with the
following annexes such as assessment of cost of construction, valuation report,
sale agreement as executed so as to facilitate assessment of Capital Gain Tax
13. Pay Capital Gains Tax and Obtain Capital Gains Tax Clearance Certificate
14. Process consent to disposition pursuant to Regulation 3 by submitting the deed
of transfer as executed in duplicate, the Certificate of Occupancy done by copy
of each valuation report, certificate of clearance of land rent, capital gains tax
clearance certificate and sale agreement, pay consent fee, pay stamp duty
15. Seek registration of the relevant right of occupancy in the transferee‟s name
16. Ensure that parties observe their obligations between date of execution and
completion date

48
 17. Compile completion statement and ensure that transferor surrenders
certificate of occupancy to transferee
18. Prepare and submit to client a statement of account showing fees due to
advocates.
HOW TRANSFER UNREGISTERED LAND?
a) To receive instructions
b) Requisite and discovery of documents
c) To conduct on site visit
d) To conduct due diligence to different authorities. Eg; NEMC, TARURA,
TANROADS, TCAA, Municipal Council
e) After knowing the status of Land, you have to prepare and excute sale
agreement
f) Payment of stamp duty
g) To obtain residential permit, if any
h) To register sale agreement to Registrar of documents or Titles as per section 23
of the Land Act for unsurveyed land.
TRANSFER BY OPERATION OF LAW
This may be either after the death of the deceased owner or transfer by order of the
court (L.R No.25)
Procedure to transfer deceased land;
a) To obtain probate or letter before the court of competent jurisdiction
b) The Administrator or executor will fill LR No.20 so as to be registered as a legal
personal representative
c) The executor or administrator after knowing who is entitled to the deceased
land, he will bequeath the land to the heir who is entitled to the land by using
LR No.22
d) The Registrar will register the heir who received the land or transfer land as
the owner of the granted right of occupancy.
NOTE: After the Administrator or Executor be registered as a Legal Personal
Representative he may dispose granted right of occupancy by way of sale.

49
 TRANSFER BY ORDER OF THE COURT
a) After obtaining court order which order for transfer of land from Judgment
Debtor to the Decree Holder, the Decree Holder will fill Form No.25 under the
Land Registration Rules
b) The Registrar of Title will order the title of land to be returned
c) The Registrar will register the Decree Holder as the owner of land

ACQUIRING LAND FOR INVESTMENT BY A FOREIGNER

Acquiring land for investment by Investor may be done into two ways;
a) Acquiring land which is under the TIC with Title Deed
b) Acquiring land which is not under the TIC

A. ACQUIRING LAND WHICH IS UNDER THE TIC WITH TITLE DEED

Where a person who is not a citizen of Tanzania wishes to buy land from a registered
occupier, the following steps will be followed;
 He must first get a certificate of Incentives from TIC
 Application to the Commissioner or Authorised Officer for approval
 To surrender a Title Deed to the Government after the surrender deed has
been signed by the occupier to provide room for new title to be issued
 The surrendered land for investment will be Gazetted and then, the land will
be allocated to the TIC where by TIC will issue a derivative title (LF#36)
 Payment of fees such as surrender fee, registration fee and stamp duty fee
 Upon signing of the deed of surrender by the Commissioner for Land, the
document will be delivered to the Registrar of Titles accompanied with Original
Title deed for it to be cancelled from the land register
 Preparation of Form No.1 for designating land for investment accompanied with
a letter providing clear root of title to the land from the beginning and steps to
be taken to allocate the land to the investor indicating the fee, tax and
premium to be paid
 To gazette the land for investment (Form No.1) after the form has been signed
by the Commissioner for lands or Authorized Officer and Director of TIC
50
  The TIC will have to pay all the costs of transfer and pay any unpaid fees, taxes
and premia
 The Commissioner for Lands will issue Title Deed to TIC and the Investor will be
issued with Derivative Right. It is important to note that, after obtaining
derivative right the investor will be required to comply with condition of
derivative right which is investment over the land

B. ACQUIRING LAND WHICH IS NOT UNDER THE TIC WITH NO TITLE DEED
This can happen where an investor wishes to obtain land from an occupier with an
offer with an offer of right of occupancy but with no certificate of title. This may
happen on village land under customary right of occupancy and does involve transfer
of the land to general land as per section 4 of the Village Land Act, Cap.114. In such
case, the following steps will have to be followed;
 The investor must know which land is suitable for investor according to his plan
 The investor will be required to negotiate or to approach the village council so
as to known if the land can be transferred
 The parties to seek approval from the Commissioner for Lands
 To surrender the offer of right of occupancy to Government by signing, two
copies of deed of surrender (Form No.36) accompanied with surrender fee,
registration fee and stamp duty fee
 Surrender deed to be submitted to the Commissioner for Lands for signature
 To issue notice in the Gazette by the Government to the public that the land is
designated for investment and will allocate it to the TIC that can offer a
derivative right to the investor
 The Commissioner will fill Form No.1 for designating land for investment and
sign it and or send it to the Commissioner for signature
 Dully filled Form No.1 accompanied with letter which shows clear historical
background of the land from the beginning and steps to be taken to allocate
the land to the investor indicating fee, tax and premium to be paid

51
 The Commissioner will sign it and direct the Tanzania Investment Centre (TIC)
and the particulars of the fee, tax and premium to be paid that are not yet
paid
 The TIC will have to pay all the costs of transfer and pay any unpaid fees, taxes
and premia
 A granted right of occupancy will be issued to TIC who will then issue a
derivative title to the Investor.

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 LECTURE EIGHT
LEASE
This is the transferring of interest in land (use of land) from one person (owner of
GRO) lessor to another person who is a lessee.
POWER TO CREATE A LEASE
According to Section 78 of the Land Act, the holder of a granted right of occupancy
can lease that right of occupancy or part of it to any person
CHARACTERISTICS OF LEASE
a) Exclusive possession
b) For a term certain i.e 1 year, 1 month, 7 years
c) A term shorter than that of a grantor, If the grantor only has a leasehold
interest, he may grant a sub-lease which must be shorter than the grantor‟s
leasehold interest.
TYPES OF LEASES

Duration or Nature

Duration

- Lease for a Fixed Period / Term of Years – Section 78 of the Land Act
- Periodic Tenancies - Section 79 of the Land Act
- Short Term Leases - Section 80 of the Land Act
- Knowing period of tenancy, depends on period by reference to which the
parties calculate the rent.

On Nature

- Future Leases / Reversionary Leases (interessetermini) S. 83

- Lease Terminating at the Occurrence of a Future Event S. 81
- Lessee Remaining in Possession of the Land After
- Termination of Lease without Consent of the Lessor Tenancy at Sufferance,
holds over after the expiry of histerm S 81 & 82Holding over determines at
the will ofeither party

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 - Tenancy at will requires consent.

However, lease can be categorized into two types;

a) Long term lease

This is a lease which is created in a granted right of occupancy for a period of 5 years
and above as per section 8(1)(a) and section 54 of the Land Registration Act, Cap.334.

b) Short term lease

This is a lease created in a granted right of occupancy for a period of less than 5
years. According to section 54 of the Land Registration Act, a short term lease is not a
registerable interest or estate.

c) Periodic lease

This is a lease created in a granted right of occupancy without having a specified time
as per section 79 of the Land Act. Also, a lease which is not having amount of rent is
also referred as periodic lease as per section 79(2) of the Land Act. However, any
person who wishes to register a short term lease or periodic lease he may register as
caveat as per section 80(3)(a) of the Land Act, Cap.113.

SUB – LEASE
This refers to a transfer of rights under the lease by a lessee to another person known
as sub – lessee.
NOTE: In order to create sub – lease the lessee must remain in a granted right of
occupancy subject for lease. According to section 67(c) of the Land Act, once sub –
lease created the covenants under the main lease will govern a sub – lease.
In order to create a sub– lease the contract for main lease must allow creation of sub
– lease as per section 89(1)(i) of the Land Act. Sub – lease shall not exceed a time for
main lease and it is required to expire one day before expiration of main lease as per
section 86(3)(a) of the Land Act.

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 TRANSFER AND ASSIGNMENT OF LEASE
1. ASSIGNMENT OF A LEASE
This refers to a transfer of all rights under the sale from lessee to another person who
is known as Assignee as per section 98 of the Land Act, Cap.113.
NOTE: Lessee known as Assignor and a person accepting assignment is known as
Assignee. According to the Land Act, once a person accept assignment such person
accept the lessor and will be bound to pay rent and to observe covenant of the lease
created between lessor and lessee or assignor as per section 98(3) of the Land Act.
COMMON LAW PRINCIPLE WHICH GOVERN ASSIGNMENT.
a) Privity to contract
This provides that a person who is not party to the contract cannot enforce rights
under the contract. In assignment of lease the principle is extended for the lessee to
enforce rights provided under section 98(3) of the Land Act, Cap.113.
b) Privity to estate
This principle provide that once there is a transfer the party to contract specifically
lessor can enforce a lease agreement only on duration of lease.
NOTE: If the lessee breach covenants, the lessor may enforce because covenants are
provided under the law (implied covenants unless there is express term) as per
section 88 and 89 of the Land Act. Implied are enforceable even if are not provided in
the contract.
EXTENSION OF THE PRINCIPLE OF PRIVITY TO ESTATE
According to the Land Act, once assignment is created the following will exist;
a) The assignee acknowledge the lessor as per section 98(1)(a) of the Land Act
b) The lessor may enforce rights such as payment of rent or compliance with the
covenants either implied or express under the lease as per section 98(3) of the
Land Act, Cap.113.

55
 PRIVITY TO CONTRACT AND PRIVITY TO ESTATE IN RELATION TO MORTGAGE.
The two principle in relation to mortgage can fit to third party mortgage;
 Privity to contract
This will apply to the mortgagor (Bank), the two parties are privity to contract
because mortgage must be created between the owner of granted right of occupancy
(Mortgagee/Bank), so all rights in relation to mortgage can be enforced by two parties
who are privity to contract as per section 112(2) and 113(2) of the Land Act, Cap.113.
 Privity to estate
When third party mortgage is created privity to estate will be the mortgagee (Bank)
and a person who is going to be issued money with a bank. A third party can enforce
the contract only on duration after completion of payment of money issued by a Bank
as per section 112(2) and 113(2) of the Land Act, Cap.113.
2. TRANSFER OF LEASE
This is a transaction between lessee (Assignee) to the main lease and lessor after
expiration of duration of lease which was created between lessor and lessee.
TRANSFER OF LEASE AFTER TRANSFER OF GRANTED RIGHT OF OCCUPANCY
(REVERSION)
Once a lessor transfer granted right of occupancy to another person the rights under
the lease will transfer from transferor of granted right of occupancy to transferee and
this transaction is known as reversion.
NOTE: A person want to sale a property under lease he has to conduct reversion
(lessor has to transfer rights to the purchaser until a buyer agree to purchase or buy a
land).
COVENANTS OF LEASE
Covenants of lease are divided into two categories;
a) Implied covenants on the part of the lessor
b) Implied covenants on the part of the lessee

56
 IMPLIED COVENANT BY LESSOR
These covenants are provided under section 88 of the Land Act and are of the
following;
- To make sure that the lessee is having peacefully and quite possession and
enjoyment of land
- The lessor should not permit either the land or part of land to be used contrary
to the lease agreement
- The lessor must make sure that all external parts, roofs, drainage system or
any common parts in proper state of repair
- If the lease is for a dwelling house, the lessor must make sure that the house is
fit for human habitation
- Once the property is destroyed or damage due to any act which was not caused
by the lessee. Eg; Fraud, earth quakes, volcano, force majeure, the lessor will
be responsible to repair if the repair cannot be maintained to terminate the
lease
- To terminate a lease after giving one month notice as per section 88(1)(f) of
the Land Act
- The lessor will be responsible to pay all taxes connected to land
RIGHTS OF THE LESSOR DURING THE TIME OF LEASE – Section 88(2) of the Land Act
(COVENANTS EMPOWERING THE LESSOR)
i) Power to inspect the leased property at reasonable time
j) Power to terminate lease after issuing one month notice, if the lessee failed to
pay rent or to observe covenants after one month demand
IMPLIED COVENANT BY LESSEE – Section 89 of the Land Act
- The lessee must pay rent according to the agreement
- The lessee must use the land in a sustainable manner
- The lessee must keep boundary mark in state of repair
- The lessee must keep a building in a reasonable state of repair
- The lessee must permit the lessor to inspect the building
- The lessee must repair a building incase of breach

57
 - The lessee is not allowed to transfer, mortgage, charge, sub – lease or
otherwise without written consent
- Once there is termination, incase such terminate is challenge and granted by
the court or if the lessee not challenged the termination he must yield up the
property to the lessor
PROCEDURE TO CREATE LEASE
- To receive instructions
- Requisite and discovery of documents
- To conduct on site visit or verification – section 67(a)(b) of the Land Act
- To conduct official search
- To prepare and execute lease agreement – Land Form No.55
- Registration of lease to the Registrar of Titles. Documents to be submitted;
 Lease agreement
 Notification – Land Form No.29
NOTE: If the lease is a short term lease, you have to register Caveat – LR #27
 Evidence for payment of withholding tax
 Evidence for payment of Registration fee
- To submit all documents to the Registrar of Titles for Registration
- To obtain lease title, if the lease created is a long term lease, if lease created
is a short term lease you will obtain certificate for registration of caveat as per
section 80(3) of the Land Act as well as section 8 and section 54 of the Land
Registration Act is for long term lease. Also, section 78 of the Land Registration
Act for registration of caveat
- Handling the lease title registered or certificate of registration of caveat to the
client and billing the client
HOW TO ENFORCE RIGHTS UNDER THE LEASE INCASE OF BREACH
According to section 107 of the Land Act provides any person who is a part to the
lease may obtain the relief before the District Court. If the consideration lease
exceeds 300 Million reliefs must be obtained before the High Court.

58
 LEASE AGREEMENT
This AGREEMENT is made at Dar es salaam this 1st day of January, 2022
BETWEEN
JUA KALI of P.O BOX 180, Dar es salaam (herein after referred to as “Lessor”)
AND
MTU KWAO of P.O BOX 200, Dar es salaam (herein after referred to as “Lessee”)
WHEREAS, The lessor agree to lease his landed property located at SinzaKumekucha,
Kinondoni Municipality within Dar es salaam Region with CT No.22010, Block D, Plot
No.2.
AND WHEREAS, The purchaser is willing to purchase or but the above described
property to the vendor for consideration which will be agreed in this agreement
AND WHEREAS, The lessee agree to lease a landed property located at Sinza
Kumekucha, within Kinondoni Municipality, Dar es salaam, with CT No.11235, Block D,
Plot No.1
AND WHEREAS, Both parties to this agreement are agree to be bound by the terms of
this agreement set out here in below;
1. COVENANT FOR LESSOR TO LESSEE
a) That, the lessor covenant the lessee that he will have peaceful enjoyment of
land during the time of lease
b) That, the lessor covenant the lessee that the property will fit for human
habitation during the time of lease
c) That, the lessor covenant the lessee he will inspect the property within
reasonable time and after giving notice
2. COVENANT FOR LESSEE TO LESSOR
a) That, the lessee covenant the lessor that he will use the property for
residential purpose only
b) That, the lessee covenant the lessor that he will pay rent according to terms
and within time
c) That, the lessee covenants the lessor that he will repair the property in case of
damage during the time of lease.

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 3. TERMS AND CONDITIONS OF LEASE
3.1. CONSIDERATION
The consideration amount of this lease is Tshs.12,000,000/= per year payable in full
3.2 DURATION OF LEASE
The duration of lease shall be one year from the date of execution
3.3 TRANSFER
Any transaction by the lessee shall be made after giving notice according to the
duration provided in this agreement
3.4 REVERSION OF LEASE
The lessor shall ensure that all rights of the lessee are secured in case of transfer of
land
4. BREACH AND NOTICE
4.1 BREACH
In case of breach by any party to this agreement the effected party shall issue notice
to the party who is in breach
4.2 NOTICE
All notice shall be sent to the party who is entitled to the notice within 30 days from
the date of breach or before time for termination
5. DISPUTE RESOLUTION
Incase of dispute parties shall resolve their dispute through mediation. If mediation
will fail any aggrieved party may institute a case before a court of competent
jurisdiction.
6. LAWS GOVERNING
This lease agreement shall be governed by the Laws of Tanzania
7. TERMINATION OF LEASE
This lease may be terminated upon notice of any party or after destruction of leased
property.

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WHEREFORE, parties to this agreement execute this agreement by putting there
signatures here in below;
SIGNED and DELIVERED at Dar es salaam by the
Said JUA KALI who is known to me
personally/ identified to me by
……………………..………………………. and ______________________
the latter being known to me personally LESSOR
this......... day of................2022

BEFORE ME:
Name: ………………………………….........
Signature: ……………………………………...
Date: ……………………………………………..
Address:.................................
Qualification: COMMISSIONER FOR OATH

SIGNED and DELIVERED at Dar es salaam by the

Said MTU KWAO who is known to me
personally/ identified to me by
……………………..………………………. and ______________________
the latter being known to me personally LESSEE
this......... day of................2022

BEFORE ME:
Name: ………………………………….........
Signature: ……………………………………...
Date: ……………………………………………..
Address:.................................
Qualification: COMMISSIONER FOR OATH
DRAWN BY:
JOKA ATTORNEYS
1ST FLOOR, UPANGA
P.O BOX 1120
DAR ES SALAAM.

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 LECTURE NINE
MORTGAGE
What is Mortgage?
This is the use of Granted Right of Occupancy as a security to obtain money from a
prescribed lender as per section 112 and 113 of the Land Act, Cap.113.
NOTE: A lessee who is having a registered lease created under the Granted Right of
Occupancy may use his lease as a security to obtain money from any financial
institution.
TYPES OF MORTGAGE.
 Registered Mortgage
 Unregistered Mortgage

a) Legal Mortgage.
This refers to the mortgage which is created soon after registered under section 8 and
section 57 of the Land Registration Act, Cap.334.
b) Unregistered Mortgage.
This refers to a mortgage which is created and parties to the mortgage opt to register
mortgage in future but the mortgagee may register caveat so as to secure the interest
of mortgage pending registration.
NOTE: According to section 113(4) of the Land Act, any mortgage which created in
Land not registered under Land Registration Act shall take effect after being
registered.
Third party mortgage are the mortgages which involve a 3 rd party who is the one will
be issued with money but parties to mortgage will remain to be owner of granted
right of occupancy and Bank (Mortgagee) as per section 113(2) of the Land Act,
Cap.113.
MORTGAGE AS A SECURITY
Mortgage shall operate as a security as per section 116 of the Land Act, this means
that the mortgagor will remain to be owner of property in accordance with the
agreement until the last payment of discharge or until the mortgagee exercise her

62
rights as per section 126 of the Land Act, Cap.113. however, the one who will be
responsible to pay land rent will be owner of granted right of occupancy.
CONCEPT WHICH MUST BE APPLICABLE WHEN CREATING MORTGAGE
1. PRIORITY OF MORTGAGE
This is a rule applicable in discharging mortgage once there is more than one
mortgage is that, the first mortgage to be paid is the first mortgage to be registered
as per section 117 of the Land Act, Cap.113.
2. TACKING
This refers to the use of one granted right of occupancy as a security of mortgages
created in more than one mortgage either issued by the same lender or different
lenders as per section 118 of the Land Act, Cap.113.
NOTE: Incase the mortgagor will default in any Bank which is not a custodian of
granted right of occupancy to first Bank to issue mortgage will be responsible to the
Bank where the default lies and the first Bank shall obtain such amount after
exercising rights of mortgage.
3. CONSOLIDATION
This refers to the use of more than one granted right of occupancy as a security for
money issued by one mortgage as per section 119 of the Land Act, Cap.113.
4. RIGHT OF REDEMPTION.
This refers to the right to the mortgagor to clear or to set off the mortgage expiration
of minimum duration of mortgage so as to avoid future interest which may be charged
from minimum duration up to the maximum duration as per section 121 of the Land
Act, Cap.113.
NOTE: The advantage of discharging mortgage after expiration of minimum period the
mortgagor will be exempted from payment of interest for the remaining installment.
However, a person who wants to purchase the property with mortgage must obtain
redemption bond – Land Form No.44.

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 LENDER’S OR BANK REQUIREMENT FOR MORTGAGE FINANCING
- Title Deed
- To conduct official search in the Land Registry
- To request verification of Title Deed
- To conduct valuation to determine value of property
- To conduct search at BRELA (in case of a company)
- Identify your client (KYC)
TRANSFER OF MORTGAGE
A Mortgagor may transfer mortgage from one mortgagee to another mortgagee (Bank)
after obtaining consent of the first mortgagee as per section 122 and 123 of the Land
Act, Cap.113. Also, a mortgagor who wants to transfer mortgage must send a written
request to the mortgagee after knowing the one who receive mortgage as per section
52 of the Land Registration Act, Cap.334.
MORTGAGE REGISTRATION REQUIREMENT (MORTGAGEE)
- Original Certificate of Title
- Mortgage Deeds (Triplicates)
- Notification – Land Form No.29 (1 Copy)
- Spouse Consent or Affidavit (1 Copy)
- Certificate of Registration at BRELA (in case of a company)
- Mortgagor‟s and spouses passport size photo
- Current Land Rent Receipt
IMPLIED COVENANTS IN MORTGAGE
(Sections 66,66(4),124(1)(f) of the Land Act, Cap.113)
Memorandum to lease a mortgaged land is prepared, if a person wants to lease land
which has encumbrance (mortgaged land)
COVENANTS BY THE MORTGAGOR
Once a mortgage granted, the mortgagor is bound by the covenants provided under
section 124 of the Land Act unless parties to mortgage will decide to negate to vary or
to extend the covenants under section 66(4)(a)(b) of the Land Act, Cap.113.
NOTE: Extension, variation or negation must be made during preparation of a contract
or mortgage deed and governed by section 66(4)(a) of the Land Act, Cap.113.

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 THE FOLLOWING ARE THE IMPLIED COVENANTS ON PART OF THE MORTGAGOR
 To pay principle amount as specified in the contract – section 124(1)(a)
 Covenants to pay all rates, charges, rent, taxes and other charges payable
under the mortgage deed as per section 124(1)(b) of the Land Act
 Covenant to repair a mortgaged property – section 124(1)(c) of the Land Act
 Covenant to pay for insurance – section 124(1)(d) of the Land Act
 If the mortgaged land is used for agriculture the mortgagor must according to
Granted Right of Occupancy or mortgage deed as per section 124(1)(e)
 Not to lease or sub – lease the mortgaged land without consent – section
124(1)(f) of the Land Act
 Not to transfer or assign the right of occupancy without consent of the
mortgagee (Not to sale or gift) as per section 124(1)(g)
 If the mortgagor is taken out of lease the mortgagor must comply with the
condition of lease as per section 124(1)(h) of the Land Act
 To pay interest according to the mortgage deed as per section 124(1)(i)
 To pay penalty in case of default of covenants as per section 124(1)(h)(e)(d) of
the Land Act, Cap.113
POWERS OF THE MORTGAGEE IN CASE OF DEFAULT BY THE MORTGAGOR
According to section 126 of the Land Act, once a mortgagor default to pay the
mortgagee may exercise her rights without even seeking for court order and the
following are the remedies;
- To appoint receiver of mortgage – section 128
- To lease a mortgaged land – section 129
- To enter into the possession of a mortgaged land – section 130
- To sale – section 132 of the Land Act
EXCEPTION OF THE ABOVE REMEDIES
If the Mortgagee wishes to possess the mortgaged land as the buyer of granted right of
occupancy must seek leave of the court as per section 136 of the Land Act, Cap.113

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 PROTECTION OF THE PURCHASER INCASE OF IRREGULARITY DURING MORTGAGED
LAND AFTER THE DEFAULT OF MORTGAGOR
According to section 135 of the Land Act, once the property subject to mortgage is
auction, the purchaser is protected and incase of irregularity which may be identified
by the court the mortgagor will be entitled to compensation from the Mortgagee
(Bank).
NOTE:
- Section 114(1)(2) of the Land Act provides for Matrimonial Home and steps to
be taken by Bank as per Regulation 4(2) and 5(2)
- Section 134 of the Land Act provides for power of sale
- Section 136 of the Land Act provides for sale by the mortgagee to himself
- Section 161(3) of the Land Act provides for Co – occupancy and other
relationship between spouse – section 59 of the Law of Marriage Act
PROCEDURES FOR MORTGAGE DEBT RECOVERY BY THE EXERCISE OF POWER OF
SALE
1. Demand notice for payment – section 127 of the Land Act
- Demand notice
- Receipt of demand notice
- Failure of payment is confirmed

2. Execution of remedies and payment of the amount due

- Order to enter into possession
- Appointment of receiver
- Advertisement to sell mortgaged property
- Registrar‟s acceptance
- Service of notice of sale
- Execution of power of sale
- Payment of the required taxes and costs
- Payment of professional fees

66
3. Registration and approval of the mortgaged land
- Application for the transfer of the right of occupancy
- Delivery of the documents to the Commissioner for Lands – LF #29 & 30
- Registration of transfer
- Transfer and receipt of new certificate of title

STEPS FOR LOAN GRANTING AND REGISTRATION

1. Preliminary stage
- Borrower negotiates with lender
- Prospective mortgagor studies access to loan information
- Prospective mortgagor collects information required by lender
- Obtain land rent clearance for land to be mortgaged
- Drafting valuation reports
- Municipal valuers carry out valuation
- Application for valuation submitted at Valuation section of Municipality

2. Valuation stage
- Obtain a tax clearance certificate from Municipality for past 10 years
- Applicant pays valuation fees
- Municipality valuer submits report to Chief Government Valuer
- Chief Government Valuer assess and approves valuation report
- Applicant collects valuation report from Chief Government Valuer
- Prospective Mortgagor gets certified copies of valuation report from Municipal
Valuation Office

3. Drafting Mortgage Deeds

- Mortgagor appoints an Advocate to draft mortgage contract
- Parties to the mortgage contract execute the deeds before an Advocate

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 4. Preparation of the file for presentation
- Advocate prepares presentation file and encloses mandatory documents, LF #40
- Application for approval and consent of Land Office (Ministry of Lands)
- Mortgagor‟s pays official fee for consent and registration and stamp duty
- Front desk officer at Ministry of Lands submits file to Commissioner for Lands
- Commissioner for lands endorses documents and assigns officer for assessment
- Commissioner for lands or Authorized Officer approves disposition by stamping
and signing it
- Commissioner for lands or Authorized Officer forwards file back to front desk
for applicant to collect it
- Documents are received and recorder in counter books and registration books
- Assessment of documents initiated by the Registrar of Title
- Assistant Registry Officer recommends for its registration
PROCEDURE TO REGISTER MORTGAGE
- To receive instruction from a client
- Discovery and requisite of documentation from the client
- On – site visit and valuation of property (Both parties), valuation report must
be made by the prospective mortgagor but through direction of mortgagee
- Official search by Mortgagee
- Preparation and execution of mortgage deed
At this stage the following documents must be prepared;
- Mortgage deed
- Mortgage facility instruments
- Spouse consent or affidavit
- Notification for disposition – LF # 29
- Mortgage of right of occupancy – LR # 11
- To pay registration fees
- To register mortgage
- To obtain money
- Mortgage of a right – Land Form No.40

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 MORTGAGE DEED
This AGREEMENT is made at Dar es salaam this 1st day of January, 2022
BETWEEN
NATIONAL BANK OF COMMERCE, Public Company Limited of P.O BOX 10, Dar es
salaam, a company registered under the Companies Act [CAP 212 Revised Edition,
2002] (herein after referred to as “Mortgagee”)
AND
MDAIWA SUGU of P.O BOX 200, Dar es salaam (herein after referred to as
“Mortgagor”)
WHEREAS, The Mortgagee agreed to issue money to the Mortgagor who secured his
property located at Sinza Kumekucha, Kinondoni Municipality within Dar es salaam
Region with CT No.20301, Block C, Plot No.15 as a Mortgaged property.
AND WHEREAS, The Mortgagor agreed to take money from the Mortgagee using a
Mortgage property as a security which is located at Sinza Kumekucha at Kinondoni
Municipality Dar es salaam Region with CT No.20301, Block C, Plot No.15 as a
Mortgaged property.
AND WHEREAS, the Mortgagor and Mortgagee agreed to be bound by the terms of this
deed as set out here in below;
1. COVENANT BY MORTGAGOR TO THE MORTGAGEE
a) That, the Mortgagor covenant with the Mortgagee to use the mortgaged
property for residential purpose
b) That, the Mortgagor covenant with the Mortgagee that he will pay for
insurance, land rent, and taxes associated to a property
c) That, the Mortgagor covenant with the Mortgagee that he will repair the
property without making any changes of the property.
2. TERMS AND CONDITIONS
2.1. CONSIDERATION
The Mortgagee will issue Tshs.100,000,000/= to the Mortgagor and the Mortgagor will
issue property described above as a security for mortgage herein after referred as
“Mortgaged Property.”

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 2.2. INTEREST AND CHARGES
The interest for mortgage will be 18% of the consideration amount and all charges for
mortgage shall be payable by the Mortgagor
2.3. PAYMENT
Payment of money issued to the Mortgagor shall be in accordance to Mortgage Facility
Instrument attached in this deed as addendum
2.4. REDEMPTION
The Mortgagor may discharge mortgage without further interest after expiration of
seven Months after execution of this deed
2.5. DURATION
In duration of this agreement is one year unless parties execute memorandum to
extend duration
2.6. DEFAULT
Incase of default the affected party shall exercise or enforce the rights in this
agreement in accordance with the law governing this agreement
2.7. TACKING AND CONSOLIDATION
a) The Mortgagor is allowed to take money from other institution using a
Mortgaged Property after consent of the Mortgagee
b) The Mortgagor is allowed to take money after issuing another security or after
payment half of consideration amount plus interest
3. INSURANCE AND CHARGES
The Mortgagor will pay on insurance land rent of the property and all charges
associated this agreement.
4. LAWS GOVERNING
The law governing this agreement shall be governed by the Laws of Tanzania

WHEREFORE, parties to this mortgage deed affix their signatures and seal here in
below as follows;

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SEALED with COMMON SEAL of NATIONAL BANK
OF COMMERCE, Public Company Limited at COMMON SEAL
Dar es salaam, this 10th day of January, 2022

IN WITNESS:
Name: ………………………………….........
Signature: ……………………………………...
Date: ……………………………………………..
Address:.................................
Qualification: 1st DIRECTOR

Name: ………………………………….........
Signature: ……………………………………...
Date: ……………………………………………..
Address:.................................
Qualification: 2nd DIRECTOR

SIGNED and DELIVERED at Dar es salaam by the

Said MDAI SUGU who is known to me
Personally or identified to me by
……………………..………………………. and ______________________
the latter being known to me personally MORTGAGOR
this 10th day of January, 2022

BEFORE ME:
Name: ………………………………….........
Signature: ……………………………………...
Date: ……………………………………………..
Address:.................................
Qualification: COMMISSIONER FOR OATH
DRAWN BY:
JOKA ATTORNEYS
1ST FLOOR, UPANGA
P.O BOX 1120
DAR ES SALAAM

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 LECTURE TEN
UNIT TITLES
Unit Titles involves existence of many titles over the same land which previous was
having granted right of occupancy. Sometime Unit Titles are referred condominium
rights which means population of rights over the same granted right of occupancy.
NOTE: In order to develop unit titles there must be a Granted Right of Occupancy.
TYPES OF UNIT TITLES
 Horizontal or Cluster
 Vertical or High rids
LAWS GOVERNING UNIT TITLES
- The Land Act, Cap.113
- The Land Registration Act, Cap.334
- The Unit Titles Act, 2008
- The Unit Titles Regulation, 2009
STAGES FOR UNIT TITLE.
There are four stages for unit title which are;
- Creation of Unit Title
- Registration of Unit Plan
- Management of Unit Plan
- Disposition
The Custodian of the Unit Titles is the REGISTRAR OF TITLES.
1. CREATION UNIT TITLE
Unit Title is created by registering unit plan as per section 4 of the Unit Titles Act
together with Regulation 3 and 9 of the Unit Titles Regulation of 2009.
NOTE: Unit Plan is prepared by Architecture – UTF No.2 made under Regulation 4 of
the Unit Title Regulation. Also, section 14 of the Unit Titles Act, 2008.
2. REGISTRATION OF UNIT PLAN
Application for registration of unit plan must be made by using UTF No.3. According to
section 4(2) of the Unit Titles Act and Regulation 4 and 10 of the Unit Titles
Regulation, 2009. Application for registration of unit plan shall be accompanied with
the following documents;

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  Application for Registration of Unit Plan - UTF No.3
 Original Certificate of Title
 Unit Plan (4 copies)
 Certificate from the Registered Land Surveyor – UTF No.10A
 Certificate from the Local Government – UTF No.10B
 Certificate of a Registered Architect – UTF No.10C
 Statement of Common Areas
Application for registration of unit or issuance of unit title – Reg.5(3) of the UTR.
 Application for Unit Title Form no.4 (2 copies)
 Accompanied by two plans of unit of each unit.
NOTE: Application form and its accompanying documents must be presented to the
Registrar of Titles with the Certificate of Title which is subject to change after
payment of necessary fees. If the Registrar will be satisfied with the application will
issue Certificate of Unit Title – UTF No.5.
3. MANAGEMENT OF UNIT TITLE
Management of Unit Title is vested to Unit Association as per section 35 of the Unit
Titles Act and Regulation 13 of the Unit Titles Regulation. Management of Unit Title
can be done into two ways;
a) By – Laws, if the number of Unit Owners is below 5, the unit owners must
Register by law as section 35(4) of the UTA & Regulation 13(10) of the UTR,
simple of by law – 14th Schedule.
b) Association, When Unit Owners exceed 5 they must registered an association as
per section 35(3) UTA and Regulation 13 of the UTR. Also, the purpose of by –
laws is the use of common areas as well as Management Agreement is required.
Procedures to register an Association;
According to Regulation 13 and 14 of the Unit Titles Regulation may be registered by
using the following documents;
 Application Form no.11
 Constitution – 15th Schedule (Reg.14(2) of the UTR).
 Association by law – 14th Schedule (Reg.13(10) of the UTR).

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  Management Agreement – 11th Schedule
NOTE: All the above documents must be submitted to the Registrar of Title after
payment of necessary fees. If the Registrar will be satisfied with the application will
issue Certificate of Registration of an Association as per Regulation 13(8) of
UTR – UTF No.12.
Powers and Functions of the Association as per section 36 & 40 of the UTA
one among powers of the Association is to establish Management of Association.
Qn: How to establish management of the association?
Management of the Association can be established by the Association to employ the
Association Manager as per Regulation 11(3) of the UTR. However, there shall be a
contract between the Association and Association Manager which is known as
Management Agreement as per 11th Schedule.

4. DISPOSITION OF UNIT
Disposition of Unit Title shall include mortgage, sale, grant, partition, lease, assign,
surrender or disclaimer as per section 28(2) of the Unit Titles Act, 2008. Also,
disposition of Unit Title does not require consent of the Commissioner but only by
seeking consent from Unit Association. All dispositions are finalized to the Registrar of
Titles.
Disposition of Unit Titles is divided into two categories;
- Disposition by Developer – section 29 of the Unit Titles Act
- Disposition by Unit Owner – section 30 of the Unit Titles Act
Other dispositions of Unit Titles;
- Lease by Unit Owner – section 31 of the Unit Titles Act
- Mortgage by Unit Owner – ss.33 to 34 of the Unit Titles Act
- Transmission/Inheritance – section 32 of the Unit Titles Act
NOTE: Unit Title may be cancelled or terminated as per section 72 of the UTA. It is
possible to terminate unit of a developed land but it is not possible to create unit on
a developed land.

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Sale agreement for unit is provided for under 17th Schedule. It is important to note
that, any person who is entitled to Unit Title may make application for registration to
the Registrar of Titles by using UTF No.4.
Any disposition which is made to any unit, the Unit Association must be notified or
informed as per section 31(2) of the Unit Titles Act, 2008.
In compliance with section 28(1) of the Unit Titles Act, registration of disposition of
unit requires the submission of the documents to Commissioner for Lands as follows;
- Deed of Transfer (Land Form no.35)
- Original Certificate of Title
- Application for approval and notification (Land Form no.29)
- Sale agreement (Triplicate)
- Proof of citizenship (Certified copies)
- Original valuation report and receipt
- Capital Gain Tax Clearance Certificate
- Current Land Rent Receipt
- Stamp Duty and Registration Fees
- A certified copy of the Floor Plain respective of the unit
- Certificate of Approval from Commissioner for Lands
Draft a sketch map or road map or skeleton of the document you have identified
above;
a) Constitution of an association
b) By laws
c) Management agreement

TASKS FOR THE DEVELOPER OR STEPS IN DEVELOPING UNIT TITLE

The developer must do the following tasks;
i) He must acquire title to the land as stipulated under the Land Act, In obtaining
the land the developer may need to engage other intermediaries such as
lawyers estates agents, land surveyors, and valuers;
ii) He must obtain architectural drawings. In order to obtain such drawings he
must engage a registered architect and other necessary intermediaries;

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iii) He must obtain approval of a Registered Land Surveyor. The approval must be
endorsed in UTF No. 10A of the UTR;
iv) He may need to consult financiers or credit institutions. In doing so he may
need to engage real estate appraisers to provide the value of the property to
be developed and its viability,
a. If the project is viable and the financier is willing to provided credit he
must obtain mortgage contract. The contract can be prepared between
an agent (lawyer) of the developer and the legal unit of the financier.
b. Other necessary intermediaries at this stage may be engaged as the need
may arise.
v) He must obtain approval from the Local Government Authority;
a. The approval must be endorsed in UTF No 10B of the UTR.
b. He must also make sure that he obtains the necessary building permits
and approvals from the Local Government Authority.
c. He must comply with payment of the required statutory fees.
d. At this stage there might also be a need to engage assistance of other
intermediaries like lawyers and estate agents etc.
vi) He must obtain approval of Registered Architect endorsed on UTF No. 10C of
the UTR;
vii) He may then commence public advertisement of the intended project through
different media,
viii) He must submit an application for registration of a unit plan as per
Regulation 3 and 4 of the UTR. The application is made on UTF No. 3 of the
UTR and must be accompanied by 4 copies of complete set of unit title plan.
The unit title plan must contain:
 Site plan, adequately identifying the land earmarked for development.
 Indication of number of units to be built so as to form a unit property.
 Schedule indicating unit factors.
 Statement of particulars to identify title to common property.
 Duly filled certificates from Registered Land Surveyor, Local Government
Authority, Registered Architect.

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  Building permit.
 Receipts acknowledging payment of required fees.
 The application must be made in four (4) copies.
 Applicant‟s photograph.
ix) He must submit an acceptable title deed (as advised by the Registrar of Titles)
to prove ownership to the land.
x) He must indicate in his application if the development of the property is
turnkey or phased. Where the development is phased, he must indicate
timetable for the development of the various phases – ss. 4(4) & 4(5) UTA.
xi) Before the completion of the engineering works, the developer must obtain a
Certificate of Occupancy as per the Local Government (Urban Authorities)
(Development Control) Regulations GN 242/2008.
xii) The developer will also need to make application for registration of Unit Title
Association under UTF No. 11 of the UTR. The application for registration of
Unit Titles Association must be accompanied by:
(a) Association Constitution, (15th schedule) of the UTR,
(b) Association By-Laws (14th schedule) of the UTR,
(c) Management Agreement (11th schedule) of the UTR,
(d) Payment of required fees (20th schedule) of the UTR.
xiii) After the above have been lodged with the Registrar of Titles and duly
registered, the developer may engage engineers and contractors to start construction
of the property and pre-completion sale of units.
xiii) In relation to the sale of units, the developer may facilitate application
for registration of units to be made on UTF No. 4 of the UTR.

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 LECTURE TEN
EASEMENT
What is easement?
This refers to use someone land as an entry as per section 143 of the Land Act.
However, the right to use or enjoy land allows an occupier of land to use or restrict
the use of land occupied by another occupier in some specific way. It entitles a
beneficiary to legitimate claim in the land. Read, section 143 to 158 of the Land Act.
With easement, the value of the land can be increased and inaccessible land can be
accessible. Also, in the case of Hewlins v. Shippam, an easement was defined as a
privilege that one neighbor has of another in writing or by prescription.
Once, easement is registered it form part of encumbrance in the granted right of
occupancy.
TERMINOLOGIES FOR EASEMENT
a) Dorminant land refers to remained land after creation of easement
b) Servient land refers to a land which is used as an easement
How easement may be created?
- By agreement
- By operation of law – section 151 of the Land Act
CREATION OF EASEMENT
Easement under the Land Act can be created either by using;
- Instrument – section 146 of the Land Act
- Order of the Court – section 147 of the Land Act
RIGHTS UNDER THE EASEMENT ONCE CREATED
According to section 149 of the Land Act, once easement created beneficiary are
entitled to enjoy and if there is any restriction any party entitled to easement may
enforce proceeding before the court.
CANCELLATION OF EASEMENT
As per section 150(3) of the Land Act, by application of the owner of servient land,
the Registrar may cancel easement, if the following circumstances will happen;
- Period of easement expired
- If there is any event or circumstance which terminate easement

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 LECTURE ELEVEN
CO – OCCUPANCY
What is Co – occupancy?
This refers to ownership of granted right of occupancy jointly by two or more persons
as per section 159 to 166 of the Land Act, Cap.113.
TYPES OF CO – OCCUPANCY
- Joint Occupancy
- Occupancy in common
a) Joint Occupancy
This refers to the ownership of granted right of occupancy by two or more person
where by each person is having specific portion or shares as per section 159(2) and
section 159(4)(a) of the Land Act, Cap.113.
Once, co – occupancy granted each co – occupier is entitled to receive a copy of
Certificate of Title of the right of occupancy as per section 160(1) of the Land Act,
Cap.113.
Implication: According to the law, joint occupancy can be created between spouses
only as per section 159(8) of the Land Act. Once, there is a joint occupancy each one
who is a co – owner may deal with his or her shares without disturbing other co –
owners share as per section 159(4)(c) of the Land Act, Cap.113.
b) Occupancy in common
This refers to granted right of occupancy owned by two or more persons with
undivided shares (either by operation of law or transmission). Co – occupancy can be
obtained by a person forming an association as per section 159(2) of the Land Act. It
is not wishes of the owner but by transfer or operation of law.
Implication: Every transaction created in Co – Occupancy in common must be
consented by each co – occupier as per section 160(4) and section 160(5) of the Land
Act, Cap.113.

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 CO – OCCUPANCY BY SPOUSE
Once, spouse obtain co – occupancy each wife shall obtain Certificate of Title in her
name and the land shall be occupied in common (Intervivos) as per section 161(1) of
the Land Act, Cap.113.
NOTE: If a co – occupancy in common is issued with a name of only is issued with a
name of only one wife, other wife will be presumed as co – owner if they contribute
improvement of land as per section 161(2) of the Land Act, Cap.113.

APPLICATION FOR PARTITION OF CO – OCCUPANCY IN COMMON

Once, Co – Occupancy is issued, Co – owners if wishes may apply to partition the co –
occupancy to the Registrar of Titles as per section 162 of the Land Act. However,
consent of other co – occupier in common is required in order for partition to take
place. Hence, application can be made by using Land Form No.63.

FACTORS WHICH MAY CAUSE PARTITION OF CO – OCCUPANCY

- The Co – occupier shall be issued with Certificate of Title per each as per
section 160(1) of the Land Act, Cap.113.
- Sale of Co – Occupancy must be by all occupiers as per section 164 of the Land
Act and Land Forms No.62,63 & 64 of the Land (Regulations) Forms of 2001
- Partition, Co – occupier may apply for partition so as to obtain mortgage as per
section 165 of the Land Act, Cap.113.

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