LEASES & TENANCIES

Leases are one of the 4 common land tenure systems operational in Uganda
today and Art237 provides that land belongs to the citizens and shall vest in
them in accordance in the land tenure systems provided for in the constitution.
Those systems are in Art237(3) and they are customary, mailo, freehold and
leasehold. This then means a non-citizen has no business with the Article. The
Land Act retaliates the provisions of the Constitution by providing in Sec2 that
subject to the Article supra, all land in Uganda shall vest in the citizens
according to the land tenure system.
The word lease is used in two broad senses; firstly to describe the document
that records the interest and secondly to describe a land tenure system called
leasehold. Broadly understood, leases are contractual interests acquired in
land for a specified period. For non-citizens, the maximum period is 99. There
are a number of common terms in leases;
a. Term-this refers to the interest acquired and sometimes to the duration
of which it is acquired
b. Lessor-the grantor of the lease. That would be the person who owns
mailo or freehold land. The reversionary owner
c. Lessee- the one who takes the grant-grantee
d. User- this is the description of what is permissible under the lease. User
clause
e. Sub-lessor- is a lessee who creates a sub-lease interest. Interest created
has to be less than the one he holds in terms of years and for the same
purpose as the original grant. Abuse may lead to cancellation. Mortgage
can be done for whatever is left. Same for the lessor. This is not available
to the sub-lessee
f. Sub-lessee-one in favor of whom the sub-lessor creates the interest
Sec3(5) of the LA provides that leasehold tenure is a form of tenure;
a. Created either by contract or by operation of law
b. The terms and conditions of which may be regulated by law to the
exclusion of any contractual agreement reached between the parties
c. Under which one person namely the landlord or lessor grants or is
deemed to have granted another person namely the tenant or lessee
exclusive possession of land usually but not necessarily for a period
defined directly or indirectly by reference to a specified date of
commencement and a specified date of ending
d. Usually but not necessarily in return for a rent which may be a capital
sum known as a premium or both rent and premium but may be in
return for services or free of any required return
 e. Under which both the landlord and tenant may subject to the terms of
the lease and having due regard to the interests of the other party
exercise such of the powers of a freehold owner as are appropriate and
possible given the specific nature of a leasehold tenure.

Essential features of the lease

One of the most critical feature is the exclusiveness of possession.
Exclusive possession means that the lessee enjoys such rights over the land to
the absolute exclusion of all others. That interest is proprietary and permits
the owner or lessee to do anything necessary to enjoy full possession and use
of the land. Street v Mountford 1985 2 aller 289, The landlord granted the
appellant the right to occupy a furnished room under a written agreement
which stated that the appellant had the right to occupy the room ‘at a license
fee of £37 per week’, that ‘this personal license is not assignable’, that the
‘license may be terminated by 14 days written notice’ and that the appellant
understood and accepted that ‘a license in the above form does not and is not
intended to give me a tenancy protected under the Rent Acts’. The appellant
had exclusive possession of the room. Some months after signing the
agreement the appellant applied to have a fair rent registered in respect of the
room. The landlord then applied to the county court for a declaration that the
appellant occupied the room under a license and not a tenancy. The county
court judge held that the appellant was a tenant entitled to the protection of
the Rent Acts, but on the landlord’s appeal the Court of Appeal held that the
occupier was a mere licensee since, notwithstanding the fact of exclusive
possession, the agreement bore all the hallmarks of a license and the parties
had in fact only intended to create a license. The appellant appealed to the
House of Lords.
Held – The test whether an occupancy of residential accommodation was a
tenancy or a license was whether, on the true construction of the agreement,
the occupier had been granted exclusive possession of the accommodation for a
fixed or periodic term at a stated rent, and unless special circumstances
existed which negatived the presumption of a tenancy (e.g. where from the
outset there was no intention to create legal relations or where the possession
was granted pursuant to a contract of employment) a tenancy arose whenever
there was a grant of exclusive possession for a fixed or periodic term at a stated
rent. The intention of the parties, as manifested in the agreement, that they
only intended to create a license (and expressed the agreement to be a license)
and that they agreed not to be bound by the Rent Acts was irrelevant.
Accordingly, since the effect of the agreement between the appellant and the
landlord was to grant the appellant exclusive possession for a fixed term at a
stated rent, and no circumstances existed to negative the presumption of a
tenancy, it was clear that the appellant was a tenant. Her appeal would
therefore be allowed
Sec3(5)c- 3. Incidents of forms of tenures
(c) under which one person, namely the landlord or lessor, grants or is deemed
to have granted another person, namely the tenant or lessee, exclusive
possession of land usually but not necessarily for a period defined, directly or
indirectly, by reference to a specific date of commencement and a specific date
of ending;
The principle may speak to intention. If a parent invited one of the children to
live in the quarters, the grant does not infer upon the child a greater right or
interest. This may qualify as a mere licensee. The intention here is not to create
a serious commitment on the part of the parent
The certainty of duration. This is also apparent from sec3(5)c-above. It is
widely accepted that because a lease is an interest in time, it should be
possible to work out the duration of the lease. Therefore where the term is not
certain, there is no lease. It is therefore critical that reference for
commencement or termination are clear and can be worked out/ascertained.
Lace v Chantler 1944 1 aller 305-duration of the war is uncertain. A house
was let for the duration of the war and it was contended that such a term was
sufficiently certain because at some future time its duration would be made
certain:—
Held – such a term was uncertain and no valid tenancy was created.
The rent/premium. Although the law appears to suggest that this is not
critical, where it is provided as payable, non-payment can have serious
consequences on the lessee because it would amount to breach of a term or
covenant. Such breach can lead to forfeiture. C
Intention. To actually create an interest in land. This relates to licenses

Creation of a Lease
Under 101 of the RTA, it is provided that a proprietor on a freehold or mailo
may subject to the provisions of any law and agreement for the time being in
force lease the same for any term exceeding 3 years, by signing a lease in the
form of the 8th schedule, and under Sec54 of the RTA, a lease is not effective
until registered under the act. Therefore in Uganda, there are formal steps in
the creation of a lease. Where these are not complied with, the arrangement
will generally be considered as a contract enforceable as between the parties-
Souza Figuerido v Moorings Hotel Co Ltd 1960 EA. The respondent was the
transferee of a sub-lease of certain club premises for which it held a liquor
license. By an agreement the respondent let the premises to the appellant for
the residue of the term under the sub-lease less the last three days thereof.
This term exceeded three years. Registration of the agreement was refused by
the Registrar of Titles who in evidence said that he refused to register the sub-
sub-lease and that the document was not in a form which could be registered.
The appellant took possession of the premises with the furniture and fittings
and carried on the club there but he was never registered as proprietor under
the Registration of Business Names Registration Ordinance. The liquor license
and the business both remained in the name of the respondent. The appellant
remained in possession from April 1, 1956, until September 16, 1958, when
the keys of the premises were handed to the respondent’s accountant. There
was then Shs. 50,199/96 owing for arrears of rent, and proceedings were
instituted for this amount. The principal defence was that the agreement
operated by way of present demise of land for a term exceeding three years and
since the agreement was not registered it was ineffectual to create any estate or
interest in land and the covenant to pay the rent was unenforceable. It was
also objected that the agreement was tainted with illegality as the parties to it
contemplated, and had been permitting, sales of liquor for the appellant’s gain
under a licence held by and in the name of the respondent contrary to the
Liquor Ordinance, 1955, and Liquor Rules, 1955. The judge rejected these
arguments and found for the respondent. On appeal
Held –
(i) section 51 of the Registration of Titles Ordinance provides that no estate
or interest in land can be created or transferred by an unregistered instrument
and that no land can be made liable to the covenants in an unregistered
instrument, but it does not state that an unregistered instrument cannot
operate as a contract inter partes; the instrument was not avoided by the
Ordinance and should be construed “ut magis valeat quam pereat”.
(ii) an unregistered document operates as a contract inter partes and can
confer on the party in the position of intending lessee a right to enforce the
contract specifically and to obtain from the intending lessor a registrable lease.
(iii) whether the covenant to pay rent contained in the agreement was
looked at as a contractual stipulation in a document of which specific
performance could be obtained in equity, or as a term of common law tenancy
at will, it was enforceable.
(iv) a sub-sub-lease is a sub-lease and is registrable under the Ordinance if
in proper form.
 (v) there was no evidence that, when the agreement was made, the parties
intended to act illegally and the failure of the appellant to apply for a liquor
licence did not taint a legal agreement with illegality or render it incapable of
enforcement.
Appeal dismissed.

Such may also result in a tenancy particularly when rent is tendered and
accepted on a periodic basis. Bweya steel works ltd v NIC 1985 HCB 58-odoki.
Considering Sections 101 & 54, it would appear that in Uganda, leases based
on equity are difficult to enforce because of the registration requirement. What
happens at common law & equity-. Walsh v Lonsdale. Lonsdale agreed to
lease Walsh a mill for seven years. Rent varied with the number of looms being
operated, but there was a minimum dead rent paid yearly in advance on
demand. The lease was not in fact granted by deed (as was required for leases
over three years), yet Walsh moved in and began paying rent quarterly.
Lonsdale demanded payment in advance and levied distress for non-payment
of rent. If the terms of the agreement were enforceable, then Lonsdale had
acted lawfully.
The Court of Appeal held that as it now had jurisdiction to apply equitable
principle, it would regard that as done which ought to be done, and so the
lease had been effective in absence of the formality. Lord Jessel MR said the
following. “There is only one court, and the equity rules prevail in it. The tenant
holds under an agreement for a lease. He holds, therefore, under the same
terms in equity as if a lease had been granted, it being a case in which both
parties admit that relief is capable of being given by specific performance. That
being so, he cannot complain of the exercise by the landlord of the same rights
as the landlord would have had if a lease had been granted. On the other hand,
he is protected in the same way as if a lease had been granted; he cannot be
turned out by six months’ notice as a tenant from year to year
Sec25 of the JA provides that where a lessor is proceeding by actions or
others to enforce. The relief will be gtranted on such trms as the HC deems fit.
In otherwords, each case will be taken on its merits-case by case basis.
Where the relief has been granted, the same lease will be deemed to remain in
effect. Sec25(4) JA provides that the HC may after judgment in any action for
right of reentry grant relief from forfeiture on application so long as the
application is made within six months.
Tenants at will arises where a tenant with the consent of the owner occupies
property but on terms that the occupation maybe brought to an
end/determined any time. Notivce here doesnot apply. When one wanyts you to
go, you go.
Tenant at Suffrance arises whwere the tenant having entered on the basis of a
valid agreement continues to hold possession without he landlords assent but
also without his dissent
Restrictive Covenants. These are negative covenants and tend to benefit the
land e.g. whenone has two properties side by side and the agreement for one
irestrictive to the kind of trade e.g. liquor trade, this in essence benefits the two
plots in totality.revovling around the enforceability of covenants as against 3 rd
parties when there is an assignment of interest. The questions around the
enforceability require one to understand the concept of privity of contact and
estae. Privity of ontract means that parties have direcyt contractual obligations
whch will be naturally limited to those parties. Privity of estate on the other
hand is descriptive of the situation where parties enjoy tenure between
themselves. There is an interest in land that is shared between them. There is
an interest in land tha tis shared between them, when a lease is first created as
between the lessee and lessor, there is privity of contract and estate. Directness
and relationship on land exists. The original lessor may assign his rights to
another party and as between the assiggne ans lessee, there is no proivity of
contracbut privity of estate.
The original lessee may also assign his interests and as between the original
lessor and the assigne, there is no privity ofontract but of estate. Therefore,
privity of contract exists between parties to a contrac whie privity of estate
exists between pwersons that are the current lessor and lesse because a new
relationship is being built at each stage.

Privity. In leasehold interests there is frequently an issue that arises

LICENCES
Licences are a defence to a claim that one is a trespasser on land. They are
permission granted by an owner of land to use that person’s land. By nature,
they are possessory and not propriotory and are personal to t holder because
they donot bind third parties. Licences donot grant proprietory interests as
opposed to leases. Further, they are personal to the holder as opposed to
assignments as found in leases. Enforcement is in personam and not in rem as
foudin leases.
Thee are various types
a. Bare Licences. Granted without consideration sometimes called
gratuitous. Here, permission to enter upon land is granted for free and
can be granted expressly or impliedly. For example, entrance to acacia
mall is free and exists as an implied permission to enter. When one
proceeds to enter into a cinema inside the mall, it becomes express. A
user of utilities like electricity will be taken to have granted a meter
reader an implied licence but whereupon the land the reader proceeds to
use the swimming pool, the licence is considered revoked. The reader
here becomes a trespasser.
b. A licece coupled with an interest. This is commonly referred to as profits
a’predre. This is a right to take something from another’s land. This
licence permits entrance upon the land in order for one to enjoy the
profit of that land. These are normally contractual and will be revoked
once the interest has ceased to be. Sand mining on one’s land, beehives
in someone’s forest, collection of firewood. This licence being contractual
will bind 3rd parties and therefore a purchaser of that land will be bound
by the licence.
c. Licence by Estoppel. This arises when the owner of the land represents
to another that they have the permission to enter upon the land and
proceed to do so. The land owner here will not be permitted to
subsequently deny that permission. Inward v Baker 1965 2 QB 29
d. Contractual Licences. Product of a contract and are crae because of a
contractual situation. These kinds are difficult to assign. Teywill
normally not bind 3rd parties. The revocation of these will amount to
breach of contract. If there is a remedy of specific performance, then it
cannot be revoked. Where it is revocable, injunctions are available.
Frequently though, licenses may be enjoyed without the formalities as
the apply to leases.