COURSE AIM: To impart knowledge on land tenure systems, resolving of land disputes and

advice on the acquisition of land.

LEARNING OUTCOMES: On the completion of the course, the students should be able

to:

1. Explain Land law in Zambia

2. Explain the meaning of land policy in Zambia

3. Understand and discuss the meaning of concept of land tenure

4. Explain the land conversion of titles Act

5. Understand and discuss the meaning of creation of tenancies

6. Explain the meaning and types of leases

7. Understand the law on land lords and tenants

8. Explain the law on mortgages

9. Understand the law on customary land tenure system

10. Understand the meaning of ownership of land according to the law and customs

11. Be able to analyse the meaning of the African concept of land ownership
UNIT ONE: EXPLAINING LAND LAW IN ZAMBIA

Introduction

This unit provides a definition of land law and the sources of land law in Zambia. It also

introduces the student to different concepts of land law as well as Latin maxims relating to the

same.

Learning Outcomes

After completing this Unit, a student should be able to:

 Explain what land is;

 Demonstrate an understanding of what land law is;

 Be able to explain some notable concepts and Latin maxims in land law.

 Outline the sources of land law in Zambia.

Definition of Land

In the most general sense, land means any ground, soil, or earth whatsoever; as fields, pastures,

woods, grasslands, waters, swamps, and hill.1 It includes not only the soil, but everything

attached to it, whether attached by the course of nature, as trees, herbage, and water, or by the

hand of man, as buildings and fences.2 This concept of land is often expressed in
1
Black’s Law Dictionary, 2nd Edition
2
Mott v. Palmer, 1 N. Y. 572
the Latin maxim ‘quic quid plantatur solo, solo cedit,’ which means,

(whatever is annexed or affixed or attached to the land becomes part

of the land). Consequently, whosoever owns that piece of land will

also own the things attached to it. The purpose of the principle is to

ensure that a purchaser of land does not acquire title or ownership

of something which is not intended to pass with the land. However,

according to our Zambian Lands Act, "land" means any interest in land whether the land is

virgin, bare or has improvements, but does not include any mining right as defined in the Mines

and Minerals Act in respect of any land. 3 This is because all land in Zambia is

essentially held by the President of the Republic in perpetuity for and on

behalf of the people.4Every title deed in Zambia specifically states as

follows:

“….EXCEPT and RESERVED all minerals, oils and precious stones

whatsoever upon or under the said land.”

Broadly speaking, Land Law or (the law of real property as opposed

to personal property or chattels) is the form of law that deals with

the rights to use, alienate, or exclude others from the land. It is

essentially concerned with understanding the concept of ownership

3
Section 2 of the Lands Act Cap 184 of the Laws of Zambia
4
Section 3 of Cap 184
of land. It deals with and regulates man’s rights, duties as well as the

interest which may be acquired in land. Land law impacts upon many facets of
our day-to-day living, it determines: who owns property in the land; who may have access to

land; your rights to land as a tenant, and; what you can do with your land. Land law is unusual in

that you can own it outright but still be limited in how you use it.

From the various definitions given above, it comes out clearly that

one aspect of land is concerned with interests in land. These

interests are rights in land held by persons other than the owner.

There are various forms of interests or rights in land that can be

held by persons other than the owner. These interests include leases,

mortgages, easements and profits a prendre. A land owner may be liable in

tort if he or she interferes with the legal rights of others.

In essence, an interest in land is a right (or a "bundle" of rights)

that someone has in, against, under or over - or with respect to - a

parcel of land. If the person holding the interest in land is the

current owner of the land itself, then the "interest" means "simply"

ownership of that land. There are many interests in land which do not

rise to the level of "ownership", but which give meaningful - and often

valuable - rights or entitlements to the holder thereof. Common

examples are:

- if I have a right to possess/occupy your land, my interest is a

lease;

- if I have a right to pass over and upon your land to have access

to some portion of your land or some other land near or

adjacent to your land, my interest is an easement;

- if I have a charge on your land to secure a debt you owe me,

thereby entitling me to sell (or acquire ownership of) your land

if you don't repay your debt to me, my interest is a mortgage;

and

- if I have a right to enter your land and remove resources

therefrom, for example, minerals, hydrocarbons, stone and

gravel, soil, non-domestic wildlife (and vegetation), my interest

is a profit a prendre.

Sources of land law in Zambia

The sources of Land Law in Zambia include;

 Statutes enacted by the Zambian legislature,

 English Common Law,

  Principles of Equity,

 Customary law,

 English Statutes applicable to Zambia by virtue of the English Law (Extent of

Application) Act and the British Acts Extension Act,

 Judicial Precedents and

 Writings of eminent authors.

Statutes Enacted by the Zambian Legislature

The Constitution of Zambia is the supreme law of the land. All laws in Zambia are subject to the

Constitution. Any law that contravenes or is inconsistent with the Constitution is null and void.

In terms of property rights under the Constitution, Article 16 provides for protection against

deprivation of property. This Article may be resorted to in the case where there is a challenge to

the President’s powers to, for instance, compulsorily acquire property under the Lands

Acquisition.

There are a number of statutes enacted by the Zambian legislature which deal with specific areas

or aspects of land law. The statutes in question include; the Lands Act (Cap 184), the Lands and

Deeds Registry Act (Cap 185), the Land (Perpetual Succession) Act (Cap 186), the Agricultural

Lands Act (Cap 187), the Land Survey Act (Cap 188), the Lands Acquisition Act (Cap 189), the

Landlord and Tenant (Business Premises) Act (Cap 193), the Housing (Statutory and

Improvement Areas) Act (Cap 194), the Water Act (Cap 198), the Rent Act (Cap 206), the

Common Leasehold Schemes Act (Cap 208), the Town and Country Planning Act (Cap 283) and

the Trust Restriction Act (Cap 63)

English Common Law

The English Law (Extent of Application) Act (whose object, as per its preamble, is to declare the

extent to which the law of England applies to Zambia), provides for an application of English

Common law, doctrines of Equity and certain English Statutes.

Principles of Equity

Equity may be defined as that body of the law or principles that was developed and applied in the

Court of chancery in England, in order to mitigate the harshness of the common law. Certain

rights could be enforced in the common law courts and these where known as legal rights. Some

rights were protected by the Courts of chancery if it deemed it equitable to do so. These rights

were known as equitable rights. By the Judicature Act of 1873, the Courts of Law and Equity

were fused into one Supreme Court divided into a High Court and Court of Appeal. In spite of

the fusion of Courts of Law and Equity, Law and Equity have still remained distant. It has been

observed that it was in the realms of property law that equity made its greatest contribution.

Equity performs three functions-It can be used to adapt the law to the facts of each individual

case (equity intra legem, that is, a court's power to interpret and apply the law to achieve the

most equitable result.); it can be used to fill gaps in the law (equity praetor legem); and it can be

used as a reason to refuse to apply unjust laws (equity contra legem).5

Customary Law

The law that existed in Zambia before the advent of colonialism was the

5
Michael Ekehurst, ‘Equity and General Principles of law’, 1976: 801-825
(unwritten) indigenous laws of the tribes. This is generally referred to as

Customary Law. Customary Law has no uniform application in Zambia,

but varies from tribe to tribe or locality to locality. Customary Law may

be resorted to in the settlement of disputes involving members of the

tribe. As regards Land Law, Customary Law as a source still plays a vital role in the settlement

of land disputes that may arise under land held under Customary Law Tenure. The law that

generally governs customary tenure in Zambia is the customary land law

of the area or district where the land is situate. The Lands Act recognizes

customary land law in a number of provisions or sections, i.e. Section 3

(4), and section 4 (1). Customary Law is recognized as applicable to the

country by virtue of Section 16 of the Subordinate Courts Act, provided

that such Customary Law is not repugnant to justice, equity or good

conscience and is not incompatible, either in terms or by necessary

implication, with any written law in Zambia. The Local Courts Act (Cap 29) in
section 12 does also recognize the application of customary law to any matter before it, in so far

as such law is not repugnant to natural justice or morality or incompatible with the provisions of

any written law.

English Statutes Applicable to Zambia by virtue of the English Law (Extent of

 Application) Act

In the case of The People v. Shamwana and Others6, Judge Chirwa J, as he then was, held, inter

alia, that the English law (Extent of Application) Act is an enabling Act in that in the absence of

any legislation in Zambia on any subject, English Statutes passed before 17th August, 1911 will

apply to Zambia. This essentially means that it is not automatic that if a certain subject has been

adequately explained by an English statute then our Courts of law are allowed to rely on its

provisions. We are only allowed to rely on the said requisite Acts if our own laws have not dealt

with the subject under discussion and we have no other recourse.

The preamble to the English Law (Extent of Application) Act provides that it is an Act to

provide for the extension or application of certain British Acts to Zambia, and to provide for

amendments to certain British Acts in their application to Zambia. Section 2 of the Act provides

that the Acts of the Parliament of the United Kingdom set forth in the schedule thereto shall be

deemed to be in full force and effect within Zambia. The British Acts set forth in the schedule

under the Act and which apply to Zambia are; The Conveyancing Act, 1911, The Forgery Act,

1913, The Industrial and Provident Societies (Amendment) Act, 1913, The Larceny Act, 1916,

The Bills of Exchange (Time of Noting) Act, 1920, The Married Women (Maintenance) Act,

1920, The Gaming Act, 1922, The Industrial and Provident Societies (Amendment) Act, 1928,

The Limitation Act, 1939 and the Law Reform (Enforcement of Contracts) Act, 1954.

The only statutes from the ones listed above that may have direct relevance to land law are the

Conveyancing Act, 1911 and the Limitation Act of 1939. Section 4 of the English Limitation Act

provides for the period of limitation in terms of an action for recovery of land. In addition to

those, the statute of Frauds 1677, the Conveyancing and Law of Property Act 1881-1911, the
6
(1982) ZR 122
Distress for Rent Act, 1689, the Law of Distress Amendment Act, 1888, are some of the well-

known pre-1911 English Statutes that are applicable to Zambia.

Judicial Precedents

Like most other countries formerly tied to England as colonies or protectorates, Zambia is

recognized as a Common Law Jurisdiction. The Common Law System is based on the doctrine

of Judicial Precedent or Stare decisis. The doctrine of judicial precedent simply means that the

courts do adhere or follow their past judicial decisions. Through the system of binding

precedents, the courts become a source of law in that in their interpretation of the statutes or laws

they create binding judicial precedents. Under the common law system, the lower courts are

bound by the decisions of higher courts. The importance of stare decisis to a hierarchical court

system was stated by the Supreme Court in the case of Kasote v. The People7

Writings of Eminent Authors

Textbooks may also be recognized as sources of Land Law. For example; Megarry’s Manual of

the Law of Real Property has been and is widely cited and relied on by both the legal

practitioners and the courts not only in England but also in Zambia.

Unit Summary

In this unit you have learnt about what land law is and about the sources of land law.

Activity 1.0

7
(1977) ZR 75
  What is land law?

 Outline the sources of land law in Zambia.

Unit Two: Historical Background of Land Tenure System in

Zambia

Introduction

This unit provides for Zambia’s Pre and Post-Independence land policy. It also looks at the land

policy under the One Party State and the recent policy development.

Learning Outcomes

After completing this Unit, a student should be able to:

 Outline the pre and post-Independence land policy in Zambia;

 Demonstrate an understanding of the One Party State land policy;

 Outline the recent land policy development.

 Outline the types of tenure and the meaning of tenure.

Pre and Post-Independence Land Policy in Zambia

The history of Zambia’s land is a rich one. It has been influenced by chieftains, by British

settlers during the colonial period, the creation of a new nation from 1930 until 1964 and the

independence of Zambia in 1964. Over the years changes in governments, political, or cultural

systems led to changes or modifications in land administration.8

In pre-colonial society, people were linked to land through their

membership in groups. The right to claim land came with

citizenship in a village; a membership could be given, and

presumably denied, by a headman.9 Group standing meant access to

land and consequently villagers’ concern was social relationships

rather than property rights.10 Links to persons through whom land was acquired and
by whom it could be used were crucial, not rights to land as such. 11 As control over land became

an important source of wealth, it became the subject of specific rights. People began to fight over

control, sale, lease and boundary disputes. Natives asserted individual ownership rights in land.12

British colonists brought the western concept of registration of

individual property rights to Zambia. In 1911 the King of the United

Kingdom gave power to administer the country to the British South

African Company (BSA Co.), a company that was exploring for

8
Mulolwa, 1998
9
Bates, 1976, p255
10
Bates, 1976
11
Chanock, 1985, p46
12
Chanock, 1985, p231
minerals. BSA Co. believed that the declaration of a protectorate

and a granting of land concessions were sufficient sources of title.

The company was empowered to apportion land to natives for their

occupation. To the settlers, land was given on freehold or leasehold,

and such holdings were registered. However, natives were not

allowed to obtain title. This is attributed to the strong belief that

under African traditions individuals did not own land.13

In 1924 the British Colonial Authority formally took over the

administration. The introduction of Crown land and Native Reserves by Council-in-Order

in 1928 cleared the uncertainty about which land was in the Crown. Crown Land was

for the occupation of the white settlers only. British and statutory

law applied to those areas. The Governor of Northern Rhodesia

granted freeholds or leaseholds in this land. Leaseholds were

granted for 99 years and in agricultural lands for 999 years.

The Native Reserves were designated for the exclusive use of

Africans. Customary law applied to those areas. Non-natives were

allowed to hold land in reserves for not more than five years. In

13
Mvunga, 1980
1947 a new term of land was implemented in the law: Trust Land.

This land was carved out of the Crown land and meant for the

occupation of indigenous people. The difference between Trust Land

and Native Reserves is that the duration of a non-native interest was

99 years in Trust Land. In Trust Land non-natives could be granted

land if this was seen to be in the interest of both races. Alienation of

land in Reserves and Trust Land required the consent of the native

authority.14

The colonial government ensured that the most valuable land

(both farming and minerals) was made available to settler

farmers, and although a large proportion of these settlers left

when Zambia gained its independence in 1964, most of the best

farm land remained in the hands of the whites.15

Until 1970 the western province of Barotseland had a special

status. It was the exclusive domain of the Lozi king and his

people. The BSA Co. overestimated the power of the king in the
14
Mvunga, 1980
15
Bingham, 1993
beginning of the colonial period. They thought that the grant of

land concession from the Lozi king was a sufficient source of

title. The 1926 Native Reserves Commission decided that this

was a case of Nemo dat quod non habet (no one can give away

what one does not have). In 1970, however, the Amendment to

the constitution of Zambia allowed uniformity in the land tenure

system. The Lozi area was put formally on par with Reserves

and Trust land elsewhere in the country.16

Policy under the One Party State 1964 – 1972

Problems Created by Absentee Landlords

After independence, the country experienced a flight of white settlers

who abandoned and left their large tracts of land unutilised and/or

undeveloped. The Government could not legally acquire the land due to

the Constitutional provision under Section 18 of the Independence

Constitution which provided for the protection against deprivation of

property. The independence Constitution had an entrenched bill of rights.

There was need for a referendum to amend Section 18 of the

16
Mvunga, 1980, p38
Constitution. The year 1969 witnessed the national campaign for a

referendum to amend section 18 of the Constitution to give or pave way

to compulsory acquisition of undeveloped and unutilised land owned

mainly by absentee landlords. The majority of the voters were in favour

of amending the constitution. The amendment of the Constitution

resulted into the enactment of the Lands Acquisition Act in 1970, which

was the law enacted to address the problem created by the absent

landlords.

The 1972 socialist government changed in 1975 the land policy radically in the Land

(Conversion of Titles) Act. The Act vested, among other provisions, (1) all land in Zambia in the

President, (2) converted freehold into statutory leasehold for a term of years not exceeding 100

years, (3) nationalized vacant land and undeveloped plots, and (4) forbade the subdivision and

sublease of land without the President’s consent. Private ownership of land ceased to exist and

all land was declared to have no value. Since all land had no value, it ceased to be a saleable and

mortgageable commodity. Real estate agents were therefore ordered to close down. 17 Resentment

of land ownership was further expressed by the Land (Conversion of Titles) Amendment Act

1985, which prohibited non-Zambians from acquiring land without the written permission of the

President. It is not surprising that Zambia was unable to attract foreign investors in agriculture. 18

The 1991 established market-oriented government saw the need for land tenure reform to

increase private sector development, and generate private and foreign investment. This led to the
17
Bingham, 1993
18
Bingham, 1993
passage of the Lands Act 1995. The Lands Act 1995 repealed the Land (Conversion of Titles)

Act of 1975, the Zambia (State lands and Reserves) Orders, 1928 to 1964, the Zambia (Trust

Land) Orders, 1947 to 1964 and other previous land laws. The Act is the base of the current land

tenure system.

Recent Policy Development (Land Reforms in the Third Republic)

The land reforms in the third republic were influenced by the Movement for Multiparty

Democracy (MMD) Government’s liberal economic policy. In its campaign manifesto of 1990,

the MMD promised to liberalise not only the economy but also the land tenure system once in

office. The MMD promised to institute a review of the customary system of tenure, while at the

same time facilitating the emergency of the private land market.

The MMD government in 1994 presented a Lands Bill in the National Assembly which was

withdrawn after its opposition by opposition political parties, traditional rulers and some NGOs

in order to facilitate more consultation. The Lands Bill was about a year later in August 1995,

again presented to the National Assembly. The introduction of this Act was meant to deal with

the problems brought about mainly by the 1975 Land (Conversion of Titles) Act. Some of the

land policy changes introduced by the Act include conversion of customary tenure into leasehold

tenure, mandatory renewal of leases upon expiry, re-entry, the land development fund and the

lands tribunal which was meant to help settle land disputes. The 1995 Lands Act introduced a

radical definition of land which include whether bare or virgin land has value by itself without

having regard to human labour or capital expended on it. The notion under the 1975 Act that bare

land had no value has been discarded.

Land Tenure in 1999

The establishment of the Lands Act, 1995 did not change the land tenure system significantly.

All land of Zambia is still vested in the President (Lands Act, 1995 Part II section 3.1) and land

in a customary area, held under customary tenure before the commencement of the Lands Act

1995, continues to be so held and recognized (Lands Act, 1995, Part II section 7).

The Lands Act, 1995 established a Land Development Fund and introduced the Lands Tribunal.

The Tribunal is on the same level as the High court and intended to settle all land-related cases.

All cases, including conflicts in customary areas, involving land are supposed to be handled by

the Lands Tribunal. The fund is meant to encourage land development through provision of

funds for services in newly opened up areas.19 Though all land is vested in the President, the

actual power of control is delegated to the Commissioner of Lands.20

The Zambian land tenure system remains to consist of two systems: customary rights applying

to the old Reserve and Trust land, now referred to as customary land, and statutory tenure

applying to State (was Crown) land. Because of the significant differences between them,

customary tenure and statutory tenure are described and discussed separately.

Unit Summary

In this unit you have learnt about land policy changes in Zambia from pre and post-independence

times including during the One Party State and the recent policy development. You have also

learnt about land tenure and the types of tenure.

Activity 2.0

 Clearly discuss the land policy in Zambia from pre and post-independence times to recent

19
Mulolwa, 1998
20
Mulolwa, 1998
 policy development.

 Briefly explain what is meant by land tenure

Unit Three: Discussing the Concept of Land Tenure

Introduction

In this unit we will look at the meaning of tenure and the types of tenure.

Learning Outcomes

After completing this Unit, a student should be able to:

•Demonstrate an understanding of the meaning of land tenure in general

•Outline the land tenure system in Zambia

•Outline the different types of tenure in general and the ones specifically applicable to Zambia

Meaning of tenure dual

The Doctrine of Tenure or the word Tenure, from the Latin word

tenere (to hold) implies that land is ‘held’ under certain conditions.
In common law systems, land tenure is the legal regime in which land is owned by an individual,

who is said to "hold" the land. It determines who can use land, for how long and under what

conditions. Tenure may be based both on official laws and policies, and on informal customs. In

other words, land tenure system implies a system according to which land is held by an

individual. It determines the owners’ rights and responsibilities in connection with their holding.

The sovereign monarch, known as The Crown, held land in its own right. All private owners

were either its tenants or sub-tenants.

In Zambia we have a dual system of tenure. There is statutory tenure adopted from the British

which is administered via laid down rules and procedures. Then we have customary tenure where

the customs of the tribe in which land falls applies. However in as much we have this dual

system, all land in Zambia is vested in the President of the Republic who holds it for and on

behalf of the people. The Chiefs and headmen in the different tribes administer land issues on his

behalf under customary tenure, while the Commissioner of lands who is legally appointed by the

President administers land under statutory tenure on his behalf.

Types of Tenure

Feudal tenure

Historically in the system of feudalism, the lords who received land directly from the Crown

were called tenants-in-chief. They doled out portions of their land to lesser tenants in exchange

for services, who in turn divided it among even lesser tenants. This process is known as

subinfeudation. In this way, all individuals except the monarch were said to hold the land "of"

someone else. Historically, it was usual for there to be reciprocal duties between lord and tenant.

There were different kinds of tenure to fit various kinds of duties that a tenant might owe to a

lord. For instance, a military tenure might be by knight-service, requiring the tenant to supply the

lord with a number of armed horsemen.

Customary tenure

Alienate

Customary tenure covers 93% of the Zambian area. The recognition of customary tenure does

not bring about the registration of ownership rights, but only the protection of use and occupancy

rights. Customary land is controlled by the chiefs and their headmen but act with the consent of

their people.
One key aspect of traditional tenure is free access to land by all members of a community. In

customary areas in Zambia individual ownership, concurrent interests, and communal interests

are recognized. Individual ownership means that the landholder or occupant has more rights and

interests in the land than any other person. The individual owns the land for as long as he wishes.

Concurrent interests occur where persons, other than the landholder, can go onto someone’s land

and use it for their own purposes. Communal interests involve the use of certain tracts of land,

which are not individually owned. The role of the chief in most of Zambia is as regulator of the

acquisition and use of land but there are important variations in the 73 tribes between the

distribution of the “interests of control” and “interests of benefit”. Acquisition in land is possible

through the following ways: clearing of virgin bush, as a gift, sale of (improvements on the)

land, transfer of land in exchange for goods, transfer of land in exchange of services and

marriage.21 A stranger to the area needs the chief’s permission to settle in the area before

acquiring a piece of land. Similarly a chief can prohibit an individual from cultivating in a

grazing area.22 The President of Zambia, however, may alienate any land in the customary area if

he takes the local customary law on land tenure into consideration and if he consults the chief

and the local authority in the area in which the land to be alienated is situated. 23 The President

can thus over-rule the decision of the chief.

The customary system has defects in the security of rights. When the chief dies or changes his

opinion, there is always a possibility that an unwanted person may be evicted. But, as noted

before, the chief rules with the consent of his or her people. Incidentally, the chief provides a

letter as proof of ownership.24 A United Nations Economic Survey of Zambia in 1964 25 observed

21
Mvunga, 1982, pp. 33-41
22
Mulolwa, 1999
23
Lands Act 1995 Part II section 3.4a and b
24
Roth, 1995, p161
25
Mvunga, 1982, p17
that:

“The security of tenure provided under tribal customary laws is

almost equivalent to the security provided under freehold. Any
individual who establishes residence in a village can acquire
customary rights over the land, although nobody can lay a claim to
land over which another individual has established rights. The
rights are permanent unless they are extinguished by abandonment
or death.”
The transformation of customary rights into leasehold is in Zambia a lengthy and difficult
process, requiring a cadastral survey and approval of both the local authorities and the
President.26 After transformation it is uncertain whether the leaseholds on customary land remain
subject to local customs and traditions. This also seems to be one of the reasons why some
traditional rulers are opposed to the Lands Act, 1995.27

Statutory tenure

The formal registration of land ownership is provided for in the Lands and Deeds Registry

(Amendment) Act 1994. The Act applies only to land known as State land, about 7% of the total

area of Zambia.28 The formal land registration system may be referred to as ‘An improved

registration of deeds’.29 Once the President has given his consent to an application of ownership

of land, a certificate of title, which is conclusive evidence of ownership is handed over.

Registration does not cure defects in documents but the registered proprietor of a certificate of

title is protected against ejectment, or adverse possession. According to the Lands and Registry

(Amendment) Act 1994:

26
Bingham, 1993
27
Mulowa 1998
28
Angus-Leppan, 1994, p294
29
Mulowa 1999
“Every document purporting to grant, convey or transfer land, or
any interest in land, or to be a lease or an agreement for lease or
permit of occupation for a longer term than one year, or to create
any charge upon land, whether by mortgage or otherwise, must be
registered”

There are three types of registers kept at the Ministry of Lands: the

lands register, the common leasehold register and the miscellaneous

register. The lands register contains documents relating to land

other than customary land. The common leasehold register registers

documents relating to common leasehold schemes. Any other

document is registered in the miscellaneous register. The registers may be

searched and examined by anyone and certified copies may be obtained if required upon

payment of a prescribed fee. All leases are available in digital textual documents and maps of

parts of Lusaka are available in digital format and are linked to the digital textual documents. 30

The President may alienate State land to any Zambian and under detailed described

circumstances to non-Zambians.31 It is illegal to acquire or transfer State land ownership without

the consent of the President.32 In order to obtain the President’s consent one has to apply for an

initial grant for acquiring or transferring State land. An applicant must pay consideration in

money and ground rent for land alienated to him. If someone wants to transform his or her

30
Mulowa 1999
31
see Lands Act, 1995 Part II section 3 (2) and section 3 (3)
32
Lands Act, 1995, Part II section 5 (1)
customary rights into a leasehold, he or she has to first obtain the chief’s permission before

applying for a leasehold grant with the President. Anyone applying for a leasehold grant for land

is required to make a plan of the area applied for. The plan has to be approved by the

municipality. They determine whether the land is still open and unoccupied. Finally, the Minister

of Lands gives the land a number, and then the applicant hires a licensed surveyor to survey the

land. If the head of the Survey Department, the Surveyor General, approves the survey of the

land then the lease for the land is given for 99 years. It is also possible to obtain a provisional

lease of 14 years from the Ministry with only a sketch plan of the property. The provisional lease

can be changed into a 99 years lease if the sketch plan is surveyed. This is only possible when

one has been on the parcel for at least 6 years.33

Apply to the commissioner of lands

Invitation to treat- 4-6 weeks within which to pay

Offer letter generated

Survey Diagrams

Processing of Certificate of title deeds

- Buying from an individual

- Apply for consent to assign from the commissioner

- Entered into a contract for the sale of land (vendor and purchaser)

- Prepare an assignment

- Pay the Property transfer tax (5% of the value of property)

- Copy of the old title deed

- Pay processing of the new title deed

Unit Summary
33
Mulolwa, 1999
In this unit you have learnt about land tenure generally and the different types of tenure

applicable in Zambia.

Activity 3.0

 Discuss the meaning of land tenure system in Zambia

Give brief explanations of the different types of land tenure

UNIT FOUR: The Conversion Process from Customary to Leasehold Tenure

Introduction:

In this unit, we will take an in-depth look at the process of converting customary land to

leasehold or statutory owned land.

Learning Outcomes

At the conclusion of this unit, a student should be able to:

- Demonstrate an understanding of the entire process of converting customary owned land

to leasehold tenure or statutory ownership

- Be able to explain what is meant by the concept of leasehold/statutory ownership

- Critically discuss the advantages of owning land which is on title as opposed to

customary land

Remember in the previous unit we learnt that Zambia has a dual system of land ownership. It is

believed that of the two, the more secure one is the statutory tenure because it gives one a legal

basis for owning land and no entity can wake up and simply take it from them. This is provided

for in Section 33 of the Lands Act Cap 185 which states as follows:

“A Certificate of Title shall be conclusive as from the date of its issue and upon and after
the issue thereof, notwithstanding the existence in any other person of any estate or
interest, whether derived by grant from the President or otherwise, which but for Parts III
to VII might be held to be paramount or to have priority; the Registered Proprietor of the
land comprised in such Certificate shall, except in case of fraud, hold the same subject only
to such encumbrances, liens, estates or interests as may be shown by such Certificate of
Title and any encumbrances, liens, estates or interests created after the issue of such
Certificate as may be notified on the folium of the Register relating to such land but
absolutely free from all other encumbrances, liens, estates or interests whatsoever”
The Lands Act Cap 184 states that all land in Zambia shall vest absolutely in the President. 34 By

law, all land transactions require the President’s consent except for grants of use and occupancy

rights based on custom.35

The President may convert customary tenure into leasehold title under a wide range of

circumstances as long as he takes into consideration the local customary laws on land tenure and

consults with Chiefs, District Councils, and any person whose interests might be affected by the

conversion.36 By law, the President delegates the day-to-day administration of land matters to the

Commissioner of Lands. The Commissioner of Lands is empowered by the President to “make

grants or dispositions to any person subject to regulations enacted by the Minister of Lands.”37

The conversion of customary land to leasehold title requires approval from three authorities: the

Chief, the District Council, and the Commissioner of Lands. First, the written consent of the

Chief must be obtained by the District Council (sec. 4(D)(ii)(a), Admin. Circ., 1985). Next, the

District Council must submit to the Commissioner of Lands a resolution recommending whether

or not to convert the customary tenure into leasehold title. The resolution must include minutes

from the Council’s committee meeting at which the decision was reached and an approved layout

plan for the tract of land endorsed by the Chief, the Chairman of the Council, and the District

Executive Secretary (sec. 4(D)(ii)(a), Admin. Circ., 1985).

34
sec.3(1), Land Act, 1995
35
sec. 8(3), Land Act, 1995
36
sec. 3(3)-(4) Land Act, 1995
37
sec. 2, Admin. Circ., 1985)
District Councils are “advised” not to recommend the alienation of land areas that exceed 250

hectares (sec. 4(D)(v), Admin. Cir., 1985). Once the resolution is submitted to the Commissioner

of Lands, the Commissioner of Lands then makes a decision on whether or not the land should

be converted. The Commissioner of Land must invariably accept the District Council’s

recommendation unless doing so “would cause injustice to others or if [the District Council’s

recommendation] is contrary to national interest or public policy” (sec. 3, (Admin. Cir., 1985)).

Along with granting powers to the President to convert customary land, the 1995 Land Act also

allows “any person” who holds land under customary tenure to apply to convert it to a leasehold

title (sec. 891, Land Act, 1995). The lease cannot exceed 99 years (sec. 8(1), Land Act, 1995).

Their application must be approved by the Chief and District Councils (sec. (8)(2), Land Act,

1995).

Land may thereafter be converted into leasehold tenure “by way of a grant of leasehold by the

President [or] any other title that the President may grant” (sec. 8(1)(a), Land Act, 1995). The

President may extend the lease agreement to a term exceeding 99 years if he or she “considers it

necessary in the national interest” (sec. 3(6)(a), Land Act, 1995).

The Impact of land Conversions on Customary Rights Holders

The 1995 Land Act is silent on whether converted land remains customary land under the

authority of traditional leaders. In practice, however, converted land is treated as state land

governed by the Land Commissioner. It is also unclear whether the grant of a leasehold title to

converted land necessarily extinguishes all customary rights previously attached to the land.
Although the Act prohibits the unlawful occupancy of land that is converted to leasehold title,

which means that holders of customary occupancy rights must vacate converted land, (sec. 9,

Land Act, 1995), it neither states what effect a land conversion has on customary use rights nor

whether converted land remains subject to customary law. Furthermore, the Land Act does not

stipulate what becomes of converted land once leases expire. In practice, customary rights

attached to converted land are extinguished once leases are granted.

The conversion process does diminish the Chiefs’ authority. Only the Commissioner of Lands is

considered the statutory landlord when lease agreements are made with investors. By law, Chiefs

are not given any bargaining or oversight power to ensure the terms of the lease are adhered to

and the land is managed effectively (Metcalfe 2006). Land leases are only subject to statute and

regulations passed by the Ministry of Lands. (sec. 7, Admin. Circ., 1985).

Due to the high costs associated with obtaining leasehold titles, the conversion process puts

impoverished villagers at a disadvantage (Brown). Although the Land Act provides villagers

with an opportunity to use their land as collateral to secure credit, the cost of doing so is

prohibitively expensive for many villagers. Villagers must hire a surveyor to map their tract of

land and pay a lease charge, a cost which amounts to at least 500,000 kwacha (about $100)

(Brown). For 99-year leases, boundary surveys can sometimes amount to millions of kwacha

(hundreds of dollars) in fees (Brown). Villagers must also bear transportation costs if the

surveying team has to travel from Lusaka. Furthermore, securing a lease entails incurring the

cost of traveling to the Ministry of Land offices in Lusaka and Ndola. The Ministry of Lands also

imposes an annual ground rent charge for leasehold title holders (sec. 6(2), Land Act, 1995). The

rent charge is currently set by statutory instrument no. 44 of 2006, which, when it was passed,
increased the ground rent by between 500-600 percent for all agricultural lands (Statutory

Instrument No. 28 of 2010; ZNFU , 2010).

The Act’s vague wording also puts customary rights holders at a disadvantage. When deciding

whether to convert customary land, the President is required to “take into consideration” local

customary law and consult with any person or body whose interest might be affected by a land

conversion (sec. 3(4), Land Act, 1995). However, the Act provides no guidance on what is meant

by the phrase “take into consideration,” and only requires the President to consider customary

laws which are not in conflict with the Act (sec. 3(4)(a), Land Act, 1995). With respect to the

provision requiring the President to consult with aggrieved persons, the Act neither establishes

how such a consultation should take place nor what remedies an aggrieved person should be

afforded in the event of a conversion. Since any person who continues to occupy the converted

tract of land is liable to be evicted (sec. 9(2), Land Act, 1995) and the Act does not require the

President to grant compensation for converted land, the conversion process may have devastating

consequences for customary rights holders.

The only recourse for individuals who are aggrieved by land conversions is to file a claim with

the Lands Tribunal (sec. 15, Land Act, 1995).

UNIT FIVE: DISCUSSING THE NOTION OF CO-OWNERSHIP OF LAND

Introduction

In this unit, we are going to discuss the two types of co-ownership of land at law, that is, joint

tenancy and tenancy in common. Generally speaking, tenancy is the concept of possession of

land or property.

Learning Outcomes

After completing this Unit, a student should be able to:

 Distinguish between the concept of joint tenancy and tenancy in common

 Understand the concept of Right of Survivorship/Jus Accrescendi

 To explain the four unities in joint tenancy

JOINT TENANCIES

These types of tenancies are a type of co-ownership of land, under which each tenant – or ‘joint

tenant’ – is equally and ‘wholly entitled on the whole’ to the estate. 38 A joint tenancy is able to

exist as either a legal or equitable interest, or both. In joint tenancies, no joint tenant is said to

hold a share in the land; instead, each is invested with the whole interest in the land, regardless of

whether their interest is in the freehold or the leasehold.39

Joint tenancies have two characteristics in particular that distinguish them from tenancies in

common. First, joint tenancies provide a right of survivorship. Second, joint tenancies always

require the presence of the so-called four unities.

38
Burton v Camden LBC [2000] 2 AC 399, HL per Lord Millett
39
Wright v Gibbons(1949) 78 CLR 313 (HC of Australia) per Dixon J
Right of survivorship

This right, also known as jus accrescendi, provides that upon the death of any of the joint

tenants, the entire co-owned estate is said to ‘survive to’ the living joint tenant(s). The deceased

cannot have provided for their rights to be passed on to nominated beneficiaries in their will.

This is because, by definition, they have no share in the estate to pass on, because shares do not

exist in a joint tenancy.

The law is to a degree archaic in this area when it comes to multiple deaths of joint tenants: if

several but not all of the joint tenants die at a similar time, and it is not certain in what order they

died, the deaths are presumed as a matter of law to have occurred in order of seniority in years

(the so-called “commorientes” rule). The surviving joint tenant(s) takes the entire co-owned

estate irrespective of their (lack of contributions) towards the initial purchase of the property.

Survivorship is therefore often a useful measure for ensuring that a family home stays within the

family. In the case of Scarle v Scarle [2019] EWHC 2224 (Ch)

On 13 August 2019, the High Court handed down judgment in the widely reported decision of

Scarle v Scarle [2019] EWHC 2224 (Ch) which concerned the presumption under s184 Law of

Property Act 1925 as to the order of death in uncertain circumstances following the untimely

death of a husband and wife.

Background

John William Scarle (79) and Marjorie Ann Scarle (69) were found dead at their home on 11

October 2016. Both Mr and Mrs Scarle were discovered by a PC Daniels and it was common
ground that both had died at least 48 hours before their discovery.

The dispute arose as to which of the two died first given that their property was owned as joint

tenants and around £18,000 was held in a joint bank account at the time of their deaths. As such,

those assets would pass to those entitled under the respective estates.

In cases where two or more persons die in circumstances in which is it unclear which of them

died first, s184 Law of Property Act 1925 creates a presumption that the deaths are to have

occurred in order of seniority and therefore the younger shall be deemed to have survived the

elder.

In this matter, the presumption would act to conclude that Mr Scarle pre-deceased his wife and

therefore, their joint assets would form part of Mrs Scarle’s estate. Ann Winter, the personal

representative of Mr Scarle’s estate, challenged the s184 presumption by relying on alleged

evidence that Mrs Scarle was the first of the two to die.

Deborah Ann Cutler, the personal representative of Mr Scarle’s estate, argued that Mrs Winter

needed to prove that Mrs Scarle was the first to die to a standard of proof higher than that of the

civil standard and below that of the criminal standard. In any event, it was argued that Mrs

Winter had not even proven her case to the civil standard, let alone this higher standard.

HHJ Kramer therefore dealt with the issue concerning the standard of proof to be applied in

considering the s184 presumption before moving on to apply.

Standard of Proof

Prior to the enactment of s184 Law of Property Act 1925, there was no presumption as to

survivorship based on age and the burden lay with the person asserting as such to prove their

case to the civil standard of proof (Wing v Angrave [1860] VIII H.L.C; Underwood v King

(1855) 4 De G.M.&G 633).

It was argued on behalf of Mrs Winter that s184 introduced a higher standard of proof through

the use of the word “uncertain” which required the person seeking to displace the presumption to

render certain that which appears uncertain.

In support of this argument, reliance was placed on the decision in Hickman v Peacey [1945]

A.C. 304. HHJ Kramer considered Hickman, which involved the death of two brothers as a result

of a bombing during the Blitz. At first instance, Cohen J was not satisfied that the brothers had

died at the same time and therefore applied the presumption. However, this decision was

overturned on appeal in the Court of Appeal who held that the conclusion they died at the same

time was overwhelming and that the presumption was a “question of fact to be decided in

accordance with the usual method of dealing with questions of fact.” The decision was then

reversed by the House of Lords who held that the proper construction of s184 is that, if

survivorship is not affirmatively proven, the statutory presumption applies. However, the Lords

were divided on the degree of proof required with Lord Macmillan commenting that the use of

the word “uncertain” denoted “a reasonable element of doubt.”

Despite the multitude of further authorities referred to, HHJ Kramer held that the starting point in

civil cases is that there is one standard of proof, namely the civil standard on the balance of

probabilities and the authorities relied upon were not inconsistent with that starting point.

Moreover, HHJ Kramer did not agree that s184 introduced a new standard of proof and the

codification was instead introduced to remove practical difficulties in the administration of estate

where it has not been possible to ascertain the succession of deaths.

In relation to the standard of proof, HHJ Kramer came to the following conclusions:

Where the order of death is uncertain, the burden of proof is on the party seeking to establish

otherwise.

Such proof is to the civil standard, the balance of probabilities.

Where the events surrounding the death are capable of giving rise to different inferences which

are not in themselves improbable, the court should not reject one inference in favour of another

unless there is some evidence upon which it can safely conclude that it be rejected.

Discussion and Decision

Factual evidence in this case came from witness evidence of the parties and Mrs Scarle’s sister in

addition to the various police and pathology records following the discovery. In addition, three

expert forensic pathologists provided reports and oral evidence during the course of the trial.

The experts agreed that the couple died of hypothermia but no agreement was reached as to
which of the two died first. Extensive evidence was provided as to the relative states of

decomposition and the temperature and environmental conditions of the rooms in which they

were both found.

Mrs Winter sought to argue that the more advanced degree of decomposition present on Mrs

Scarle supported the conclusion that she died first whereas Mrs Cutler argued that no reliable

inference could be drawn from the state of decomposition and this was an unreliable method of

pinpointing the time of death.

The experts agreed that if the environmental conditions and temperature in the two rooms were

equivalent then it was more likely that Mrs Scarle pre-deceased her husband. As such, the judge

heard submissions in relation to the relevant conditions within the two rooms but ultimately

concluded that there were too many variables to come to a safe conclusion as to the temperature

of the two rooms.

HHJ Kramer accepted that Mrs Scarle was in an advanced state of decomposition compared to

Mr Scarle. However, as that was the only evidence upon which he could draw any inferences as

to the sequences of death and he was otherwise left with two not improbable explanations as to

the relative decomposition of the couple, the judge could not be satisfied that Mrs Scarle pre-

deceased her husband as alleged by Mrs Winter.

As a result, HHJ Kramer held that the Claimant had not satisfied him as to the civil standard of

proof to disapply the presumption under s184. Therefore, the younger is deemed to have
survived the elder and Mr Scarle was found to have pre-deceased his wife.

Comment

This case reinforces the need for couples (whether married or not) to properly consider how they

intend for their joint property to be owned, whether as joint tenants or tenants in common and

also to ensure wills are update to reflect these wishes.

Moreover, this matter demonstrates that parties should give considerable thought to their

prospects of success before embarking upon expensive and, in this case, heavily publicised

litigation over what was a fairly modest estate.

It has been widely reported in the press that the Mrs Winter was ordered to pay Mrs Cutler’s

costs on the indemnity basis with an interim payment of £55,000 out of a total of £84,000, with

the remainder sent off for detailed assessment. This is in addition to her own costs totalling

around £95,000 resulting in a total liability of at least £179,000.

The decision to award costs on the indemnity basis was made as a result of Mrs Winter’s refusal

to make any reasonable attempt to engage in settlement discussions, with offers to split the estate

50:50 and 60:40 being rejected in addition to an offer to mediate. This highlights just how vital

ADR can be in contentious probate disputes and how serious the consequences can be for not

engaging in any meaningful discussions whatsoever.

Changes in legal joint tenancy

Joint tenants may opt to transfer the legal estate in land to themselves, or to transfer it to others,

and hold the land as legal joint tenants.

The Four Unities

A joint tenancy necessarily requires the presence of the so-called “four unities” in order to

exist.40

Possession

The unity of possession pertains to the right of each joint tenant to possession of the land; the

right of each tenant to the land applies to each and every part of the land. Therefore, no joint

tenant may take possession of any portion of the land, such as by sectioning off that portion of

land, to the exclusion of the other joint tenants.41

Interest

This form of unity derives from the idea that each joint tenant is ‘wholly entitled to the whole.’

The interest of each and every joint tenant is exactly the same in terms of extent, nature, and

duration.

Title

The unity of title holds that each of the joint tenants derives their title to the land from the same

act or document, such as an act of adverse possession, or a document such as a grant. For a co-

owned legal estate, this type of unity also means that when a purchaser is looking to purchase the

40
AG Securities v Vaughan [1990]1 A.C. 417 per Fox LJ
41
Meyer v Riddick(1990) 60 P & CR 50, CA
title to a portion of co-owned land, the purchaser need only purchase one title.

Time

Put simply, this unity requires that the interests of all joint tenants must have been vested in them

at the same time.

Case in focus: A.G. Securities v Vaughan [1990] 1 A.C. 417

Facts
AG Securities possessed a long lease of a four bedroom property which was rented to Vaughan
and three other individuals. Each tenant signed individual agreements on four separate
occasions to lease the property. AG Securities later terminated all of the agreements in 1985.
The tenants claimed that they had joint ownership of the lease of the property and were therefore
afforded statutory protection. The landlord claimed that the tenants had separate licence
agreements. The Court of Appeal heard the case and decided that the tenants held a joint lease.
This decision was appealed.
Issue
The issue was whether these individuals could rely on a collective lease to the property which
would afford them protection under the relevant landlord/tenant legislation, which at the time
was the Rent Act 1977. It was important for the court to consider the nature of the agreements
that were struck between the landlord and the licensees.
Decision
It was held by the House of Lords that Vaughan and the other people in the property were
licensees and could not, therefore, rely on the rights within the Rent Act 1977. The court arrived
at this decision on the basis that none of the licensees were provided with exclusive possession,
but merely had the right to share the flat with one another and therefore this prevented their
rights from being combined. Moreover, when considering the construction of the agreements, it
was clear that the rights had been created as numerous, distinct agreements and could not be
construed as the licensees possessing joint tenancy.
Reasoning
Although parties cannot contract out of landlord and tenant legislation (the Rent Act 1977 at the
time), a shifting population could not be joint tenants of a lease and therefore they were each
licensees, not entitled to protection

Family breakdowns and joint tenancies

Joint tenancies have given rise to issues where the joint tenants are a marital couple, or are in a

civil partnership, and their relationship irretrievably breaks down.

Ending of periodic lease

The first issue is that the legal joint tenancy over the periodic lease requires unanimous action by

joint tenants, yet where there is a breakdown in the relationship that unanimous action may not

be possible. As a result, the court has indicated that a single joint tenant may be entitled to bring

the lease to an end by refusing to enter into a further term for the periodic tenancy.42

The problem, as noted in Qazi v Barrow [2003] UKHL 43, is that the service of a notice to quit

by one tenant of a periodic lease effectively brought the lease to an end without any

consideration of the effect the loss of property had on the other joint tenant(s).43

TENANCIES IN COMMON

Unlike with joint tenancies, in tenancies in common the co-ownership arrangements are such that

each of the co-owners holds a distinct share, or proportions of entitlement. Tenancies in common

take effect only in equity. There are two defining characteristics to tenancies in common, both of

which set tenancies in common apart from joint tenancies:

There is no right of survivorship between tenants in common, and

The only unity which exists between the tenants in common is the unity of possession.

42
Hammersmith and Fulham v Monk [1992]
43
The matter was considered in Manchester City Council v Pinnock [2010] UKSC 45
Surviving spouse 20% +10 +5

12 children 50%+ 10 +5

3 have died

No right of survivorship

There is, unlike joint tenancies, no right of survivorship between tenants in common. The size of

each tenant in common’s share is defined, finite and fixed; it is unaffected by the death of any

tenant in common.

Only unity of possession is required

Again, unlike with joint tenancies, tenancies in common do not require that all of the four unities

be fulfilled. Instead, there is only one requirement: that each of the tenants in common has a right

to possession of the land.

Occupation and enjoyment

As with joint tenancies, given the unified right of possession between tenancies in common, no

tenant in common is permitted to physically demarcate or erect boundaries on any part of the co-

owned land for their own use at the exclusion of all other co-owners.

What may also be noted is that there is no inherent right of trustees, i.e. those that hold the legal

interest in the land, to compel one beneficiary (i.e. a tenant in common with an equitable interest)

to sell their share to another beneficiary.44

Liability of occupation rent

44
Rahnema v Rahbari [2008] 2 P. & C.R. DG5; Bagum v Hafiz and another [2016] Ch. 421 per Lord Dyson MR
Between the tenants in common, it is usually the case that no one tenant in common can require

the other tenant(s) in common to pay rent, even where one of the tenants in common effectively

enjoys sole occupation of the land. Where rent is received from a letting of co-owned land, paid

by a stranger occupying the land that has been let out, the paid rent is divisible between the

tenants in common in exact proportion to the value of their respective share.45

Liability for repairs and improvements

When one tenant in common offers to pay for or make repairs or improvements to the co-owned

land at their own expense, they generally have no right of immediate recovery of his costs from

the tenant(s) in common. (This principle applies also for joint tenants.)

Equity’s Preference for Tenancy in Common

The common law has tended to favour joint tenancies for purposes of certainty and the value of

the concept of survivorship, whereas equity has tended to favour tenancies in common. Equity

views tenancies in common as providing fairness in the property relations of co-owners.46

As mentioned the common law favours joint tenancies, and this has been given statutory

backing: co-ownership must take the form of a joint tenancy where it pertains to a legal estate in

the land (Law of Property Act 1925, ss. 1(6) and 36(2)). Yet equitable estates can take the form

of either a joint tenancy or a tenancy in common.

There is an advantage, regarding the equitable estate, for favouring tenancies in common.

Survivorship means that in the event any tenant dies prematurely, their interest passes wholly to

the other joint tenants, and thus the deceased tenant has no means of diverting the interest to the

45
Job v Potton(1875) LR 20 Eq 84
46
. Kinch v Bullard [1999] 1 WLR 423, ChD per Neuberger J
persons they would have designated in their will.

What happens then where a tenant is simultaneously a joint tenant of the legal estate and a tenant

in common of the equitable estate? This simply amounts to a full separation of those measures

which attach to legal and equitable estates respectively.

Generally, as equity will follow the law, equity’s prior assumption is that where a person is a

joint tenant of the legal estate, they are also joint tenant of the equitable estate. 47 There are a

variety of circumstances which act to override the presumption of equity following the law and

declaring a joint tenancy of the equitable estate. Thus, in the following cases, equity will declare

a tenancy in common over the equitable estate rather than a joint tenancy, and the list is not

exhaustive (Malayan Credit Ltd v Jack Chia-MPH Ltd [1986] AC 549, PC per Lord Brightman):

Express or implied words of severance – This instance will usually arise in a document or

transfer or conveyance in which it is expressly or impliedly clear that the parties intend to take

distinct and separate shares in the land;

Absence of the “four unities” – As mentioned, the presence of all four unities is required for a

joint tenancy, so an absence of any of the unities (save for the unity of possession) will

necessarily mean the tenancy cannot be a joint tenancy;

Contributions towards the purchase price in unequal proportions – Where the contributions are

unequal, such circumstances give rise to the presumption that the parties had intended to take

distinct shares in the property that were proportionate to their respective contributions, and given

the contributions are unequal, the parties were necessarily recognising that one party would hold

a greater share of the estate over the other tenant(s);

47
(Pettitt v Pettitt [1970] AC 777, HL per Lord Upjohn; Cowcher v Cowcher [1972] 1 WLR 425, Fam Div per
Bagnall J).
Commercial partners – Given that joint tenancies have the right of survivorship as an essential

characteristic, commercial parties would be presumed not to intend to divest the whole of their

share in favour of the other commercial party, and instead would have opted to retain distinct

shares.48

Business tenants – Where such tenants take a joint tenancy, they are also presumed to have taken

a tenancy in common in equity given their ‘several individual business purposes’.49

Joint mortgagees – Mortgagees are of course the lenders in a mortgage relationship, and so

where there is more than one mortgagee, it would be in their respective business interests to

retain their own shares and contributions towards a property, meaning each mortgagee is taken to

have intended to ‘lend his own and take back his own’50

Case in focus: City of London Building Society v Flegg [1988] A.C. 54

Unit Summary:

In this unit, we have learnt about the two types of co-ownership in terms of tenancy, that is joint

tenancy and tenancy in common. We have also learnt about the right of survivorship and the four

unities which essentially distinguishes the two tenancies. We have also learnt about the other

types of tenancies being, fixed, periodic, sufferance and at will tenancy. The difference between

the above two tenancies and the latter is that in the former, tenants own the land or property

legally whereas in the latter, the tenants hold the property jointly or in common as lessees leasing

a property or land from a lessor.

Activity:

 Explain the difference between a joint tenancy and a tenancy in common

48
Lake v Craddock (1732) 3 P Wms 158
49
Malayan Credit Ltd v Jack Chia-MPH Ltd [1986]);
50
Morley v Bird (1798) 3 Ves 628
  What does the right of survivorship entail

 What are the four unities in joint tenancy

 What does the common law and equity state about the two tenancies and how does

the Court resolve issues when there is a conflict in the case of someone having both

interests in the same piece of land or property?

 Mention the other types of tenancies and distinguish them

UNIT SIX: EXPLAINING LEASES

Introdution

In this unit, we will be talking about leases, types of leases, assignments and sub-leases.

Learning Outcomes:

At the conclusion of this unit, a student should be able to:

 Explain what a lease is and the creation of leases

 The types of leases

 The distinction between a lease and a license

 What is understood by an assignment and a sub-lease

LEASE

In general, a lease is a contract or written agreement by which one party

conveys land, property, services, etc. to another for a specified time,

usually in return for a periodic payment. It is permission granted by the

owner of property to another, to use their property to the exclusion of

everyone else for a specified period of time. Even though title or

ownership is still retained by the owner, the right to use the thing in

question is transferred to the lessee for a determined period. Property,

buildings and vehicles are common assets that are leased. Industrial or

business equipment is also leased.

The owner or lessor conveys an estate or interest in property to another party, for a limited

period, subject to various conditions, in exchange for something of value, but still retains

ownership. In essence, the lessor transfers his right or power to use his property to another

person called the lessee for a specific period of time in exchange for consideration.

Broadly put, a lease agreement is a contract between two parties, the

lessor and the lessee. The lessor is the legal owner of the asset; the

lessee obtains the right to use the asset in return for regular rental

payments. A lessee may assign a lease to a third party, or assignee.

An assignment conveys all rights under the lease to the assignee for

the remainder of the lease term, and the assignee assumes a

contractual relationship with the original lessor. However, unless

the lessor agrees otherwise, the first lessee still retains the original

duties under the lease agreement until the lease expires. Generally,

an assignment is valid unless it is prohibited by the lessor.

Distinction between lease and licence

A lease should be contrasted with a license, which may entitle a

person (called a licensee) to use property, but which is subject to

termination at the will of the owner of the property (called the

licensor). It permits the licensee to use the property for a specific act

that would otherwise have been illegal if the owner had not

consented. They are not transferrable and cannot bind third parties. An example of a

licensor/licensee relationship is a parking lot owner and a person who parks a vehicle in the

parking lot. The interest in the property does not pass to the licensee to the exclusion of

the owner. The importance of the distinction goes beyond the right of

exclusive possession: a lease grants the leaseholder a transferable

and enforceable right in the property, whereas a licence confers no

rights of transfer or enforcement at all over the property. In the

residential context, however, leases and licences can look very similar. Hence, in

looking at ways to distinguish between the two categories, the courts have arrived

at various principles:

Exclusive possession is necessary but not sufficient for tenancies :

Although it is a given that leases will require exclusive possession, there are certain

arrangements by which exclusive possession applies despite there being no relationship of

landlord and tenant. In the case of licences, there may appear to be a degree of exclusive

possession on the part of the licensee over a portion of a property, but the person who owns the

property at large will retain exclusive possession over the remaining part of the property.

The status of the lodger: Typically, an occupant will be designated as a

lodger and therefore a licensee, rather than a tenant, if the owner of the

premises is contractually obliged to provide attendance or services

‘which require the landlord or his servants to exercise unrestricted

access to and use of the premises’. The lodger by definition is someone

who cannot claim the right to ‘call the place [meaning the property] his

own’.

Creation of leases

According to s 52 LPA 1925, leases, being a type of legal estate, can only be conveyed by deed,

that is, in writing. A lease will not need to be created in writing, according to s 54(2) LPA, if the

initial term of the lease (be it fixed term or period of calculation) does not exceed 3 years.

Non-compliance with formalities at common law

If section 52 LPA 1925 is complied with, at common law, a legal lease will be created. If no

deed is executed for a lease of term greater than 3 years, a ‘tenancy at will’ will result, with the

possibility of it becoming a periodic tenancy.51

51
Javad v Aqil [1991].
Non-compliance with formalities in equity

Where a legal lease is not created due to lack of formalities, there will still be a contract for a

lease, according to Browne v Warner (1808). As equity could offer specific performance to

enforce this contract, the doctrine of Walsh v Lonsdale (1882) was developed, providing that

where specific performance would be offered by a court, a formally-defective contract for a lease

will be turned into an equitable equivalent (with the same terms). The contract itself must be

enforceable for the doctrine to operate. It must, therefore, comply with the Law of Property

(Miscellaneous Provisions) Act 1989: it must be in writing; it must contain all of the express

terms of the lease; it must be signed by or on behalf of all parties; there must be consideration

and specific performance must not be deniable.

Common law vs equity

Wherever there is a conflict between equity and common law where the doctrine of Walsh v

Lonsdale is operating, equity shall prevail. As such, in Walsh v Lonsdale (1882) itself, a term

allowing a landlord to demand 1 year of rent in advance was enforceable.

KEY CHARACTERISTICS OF LEASES

In the landmark case of Street v Mountford [1985] the court identified

three key components of the ‘term of years’ aspect of leases/leaseholds.

They were identified as follows:

- Exclusive possession;

- For a fixed or periodic term certain; and

 - In consideration of a premium – meaning a lump sum – and/or

periodical payments.

Any given lease or tenancy must grant a right of exclusive possession: The right of exclusive

possession over land is said to be the ‘proper touchstone’ of a lease or tenancy. 52 A tenancy by

definition must involve a granting by the landlord of exclusive possession, and so a tenancy

without the right of exclusive possession is a contradiction in terms.

Case in focus: Westminster City Council v Clarke [1992] 2 AC 288

A lease or tenancy must be for a fixed term of years absolute:

We have seen that the leasehold can be stated to last for any duration but it is crucial that an

ascertainable period is given. A lease must have a date of commencement (even if in the past)

and a fixed maximum duration. Examples of failed periods include:

A purported lease that was said to last for ‘the duration of the war’ ([1944] 1 All ER 305); and

A lease that would run ‘until Britain wins the Davis Cup’ (Prudential Assurance Co Ltd v

London Residuary Body [1991] UKHL 10).

The courts have occasionally questioned the rationale of needing a certainty in the stated period.

It has been said to have no ‘satisfactory rationale’ (Prudential Assurance Co Ltd v London

Residuary Body [1991]), and the court has considered relaxing the requirement of the term of

years absolute requirement (Ashburn Anstalt v Arnold [1988] EWCA Civ 14).

Case in focus: Prudential Assurance Co Ltd v London Residuary Body [1991]

Fixed term leases

52
Radaich v Smith [1959] HCA 45
In Lace v Chantler [1944], a lease’s duration was set to ‘the duration of the war’ (World War

II). There was no valid lease as the duration of the war was uncertain, and no criteria was set for

judging when the war could be deemed to have ended.

Periodic tenancies

Maximum durations are not an issue in periodic tenancies, as the period will be set by the rental

payment period. However, certainty of duration includes certainty in either party’s ability to give

notice to end such a lease. In Re Midland Railway Agreement [1971], it was agreed that the

maximum duration of a periodic tenancy will always be uncertain, but that the giving of notice

could be conditional (a requirement that the landlord show that he needed the land for his own

business purposes). This latter finding was struck down in Centaploy v Matlodge [1974], which

said that the right to give notice must always be unconditional, irrespective of what the parties

intended.

TYPES OF LEASES

There are several types of lease, the most common of which are fixed term leases, and periodic

tenancies.

Fixed term leases

Fixed term leases are usually purchased for a lump sum with a nominal rent and lasts for a fixed

period of time. It has a definite beginning date and a definite ending date. A fixed term tenancy

comes to an end automatically when the fixed term runs out or, in the case of a tenancy that ends

on the happening of an event, when the event occurs. If a holdover tenant remains on the

property after the termination of the lease, s/he may become a tenant at sufferance because the

lessor/landlord has suffered (or allowed) the tenant to remain as a tenant instead of evicting him
or her. Such a tenancy is generally "at will," meaning the tenant or the landlord may terminate it

at any time, upon the providing of proper statutory notice

Periodic tenancy

A periodic tenancy, also known as a tenancy from year to year, month to month, or week to

week, is an estate that exists for some period of time determined by the term of the payment of

rent. Either the landlord or the tenant may terminate a periodic tenancy when the period or term

is nearing completion, by giving notice to the other party as required by statute or case law in the

jurisdiction. Neither landlord nor tenant may terminate a periodic tenancy before the period has

ended, without incurring an obligation to pay for the months remaining on the lease. Either party

must give notice if it intends to terminate a tenancy from year to year, and the amount of notice

is either specified by the lease or by state statute. Notice is usually, but not always, at least one

month, especially for the year-to-year periodic tenancy.

Tenancy at will

A tenancy at will may be created where exclusive possession is granted in return for rent, but

where determination is allowed at any. A tenancy at will is usually implied during periods of

renegotiation where possession is retained, or where a fixed term or periodic lease expires, and a

tenant ‘holds over’ (doesn’t leave). It may be terminated when either the landlord or the tenant

gives reasonable notice. Unlike a periodic tenancy, it isn't associated with a time period. It may

last for many years, but it could be ended at any time by either the lessor or the lessee for any

reason, or for no reason at all. Proper notice, as always with landlord/tenant law, must be given,

as set forth in the laws. If there is no formal lease, the tenancy at will is the one that usually

exists.

In essence, the tenant occupies land with consent of the landlord on the terms that either party
may determine the tenancy at any time. There is no definite time set for expiration of tenancy. It

is expressly stated or implied, for example, when lease expires and tenant continues occupying

property with landlord’s permission.

Tenancy at sufferance

A tenancy at sufferance arises where a lease expires and a tenant holds over without the dissent

of the lessor. As soon as the lessor either consents or objects to the holding over, the tenant will

become either a tenant at will or a trespasser. Although the tenant is technically a trespasser at

this point, and possession of this type is not a true estate in land, authorities recognize the

condition in order to hold the tenant liable for rent. The landlord may evict such a tenant at any

time, and without notice.

The landlord may also impose a new lease on the holdover tenant. For a residential tenancy, this

new tenancy is month to month. For a commercial tenancy of more than a year, the new tenancy

is year to year; otherwise it is the same period as the period before the original lease expired.

Tenancy by estoppel

Where a person who is not the lessor grants a lessee a lease, it may be inequitable for a landlord

(lessor) to deny that grant. The lessor may then be estopped from denying the existence of the

tenancy. This almost occurred in Bruton v London & Quadrant Housing Trust [2000], where a

housing trust granted Bruton a lease under a licence with Lambeth London Borough Council,

who planned to develop the property at some point in the future. The House of Lords found that

there was a contractual tenancy, so a tenancy by estoppel had not been created.

Assignments and Sub-leases

Distinguishing between an Assignment and a Sublease

The quantity of interest transferred distinguishes an assignment from a sublease. This distinction

can be summarized as follows:

Assignment: When a tenant transfers its entire interest in a leasehold estate, the transfer is an

assignment. To qualify as such, the transfer must include the tenant's entire estate for the

duration of the lease. If the original tenant assigns its interest in the lease, its privity of estate

terminates, but its privity of contract remains intact. In other words, assignment of the lease ends

its right to possession, but, absent an express release under the terms of the lease, its liability

under the lease continues. When the assignee takes possession of the premises, the assignee

obtains privity of estate. Privity of estate binds the landlord and assignee to the terms of any

covenants running with the land, but only so long as the privity of estate continues. As a result,

the assignee becomes liable to the landlord for the payment of rent and the breach of any other

lease covenants running with the land. Likewise, the landlord becomes liable to the assignee for

the covenant of quiet enjoyment. However, the assignee does not come into privity of contract

with the landlord unless the assignee expressly assumes the tenant’s obligations under the lease.

Sublease: When a tenant transfers less than the remaining term or less than the tenant's entire

estate, thus leaving the original tenant with a reversionary interest in the lease, the transfer is a

sublease. A sublease, unlike an assignment, does not establish privity of estate or privity of

contract between the landlord and the subtenant. Instead, when a sublease occurs, the original

tenant retains both privity of estate and privity of contract with the landlord. No legal

relationship exists between landlord and subtenant. A sublease therefore does not transfer any of

the original tenant's rights or obligations under the lease to the subtenant. Accordingly, the

landlord cannot hold the subtenant liable for a breach of the lease, even if caused by the
subtenant, nor can the subtenant enforce the terms of the lease against the landlord.

Despite the lack of privity between the landlord and subtenant, a sublease does establish a new

leasehold estate between the tenant and subtenant, creating both privity of estate and privity of

contract. Thus, the sublease document will control whether and to what extent the subtenant can

hold the tenant liable for breaches of the lease by the landlord, and what happens if the

subtenant's failure to perform under the sublease creates liability for the tenant under the lease.

These agreements do not, however, disturb the privity of contract and estate existing between the

landlord and tenant, despite the subtenant's possession of the premises. Thus, for either the

landlord to have rights against the subtenant or vice versa, the landlord and subtenant must

execute a separate document establishing them.

Unit Summary:

In this unit, we have learnt about leases in general, how they are created, types of leases,

assignments and sub-leases.

Activity:

- Kindly explain what is entailed by the term ‘lease’ and how it is created

- Mention the different types of leases and when they apply

- Mention the differences between a lease and a license

- What is the distinction between an assignment and a sub-lease

UNIT SEVEN: LANDLORDS AND TENANTS

INTRODUCTION

In this unit, our focus is on issues to do with rights, duties and remedies of landlords and tenants.

LEARNING OUTCOMES

 Itemize and explain the rights and duties of landlords.

 List and describe the rights and duties of tenants.

 Understand the available remedies for tenants when a landlord is in breach of his or her

duties.

Rights and Duties of Landlords and Tenants

Duties of Landlords

The law imposes a number of duties on the landlord and gives the tenant a number of

corresponding rights. These include (1) possession, (2) habitable condition, and (3) non-

interference with use.

Possession

The landlord must give the tenant the right of possession of the property. This duty is breached

if, at the time the tenant is entitled to take possession, a third party has paramount title to the

property and the assertion of this title would deprive the tenant of the use contemplated by the

parties. Paramount title means any legal interest in the premises that is not terminable at the will

of the landlord or at the time the tenant is entitled to take possession.

If the tenant has already taken possession and then discovers the paramount title, or if the

paramount title only just comes into existence, the landlord is not automatically in breach.

However, if the tenant thereafter is evicted from the premises and thus deprived of the property,
then the landlord is in breach. Suppose the landlord rents a house to a doctor for ten years,

knowing that the doctor intends to open a medical office in part of the home and knowing also

that the lot is restricted to residential uses only. The doctor moves in. The landlord is not yet in

default. The landlord will be in default if a neighbor obtains an injunction against maintaining

the office. But if the landlord did not know (and could not reasonably have known) that the

doctor intended to use his home for an office, then the landlord would not be in default under the

lease, since the property could have been put to normal—that is, residential—use without

jeopardizing the tenant’s right to possession.

Warranty of Habitability

As applied to leases, the old common-law doctrine of caveat emptor said that once the tenant has

signed the lease, she must take the premises as she finds them. Since she could inspect them

before signing the lease, she should not complain later. Moreover, if hidden defects come to

light, they ought to be easy enough for the tenant herself to fix. Today this rule no longer applies,

at least to residential rentals. Unless the parties specifically agree otherwise, the landlord is in

breach of his lease if the conditions are unsuitable for residential use when the tenant is due to

move in. The landlord is held to an implied warranty of habitability.

The change in the rule is due in part to the conditions of the modern urban setting: tenants have

little or no power to walk away from an available apartment in areas where housing is scarce. It

is also due to modem construction and technology: few tenants are capable of fixing most types

of defects. A US court of appeals has said the following:

Today’s urban tenants, the vast majority of whom live in multiple dwelling houses, are interested

not in the land, but solely in “a house suitable for occupation.” Furthermore, today’s city dweller

usually has a single, specialized skill unrelated to maintenance work; he is unable to make

repairs like the “jack-of-all-trades” farmer who was the common law’s model of the lessee.

Further, unlike his agrarian predecessor who often remained on one piece of land for his entire

life, urban tenants today are more mobile than ever before. A tenant’s tenure in a specific

apartment will often not be sufficient to justify efforts at repairs. In addition, the increasing

complexity of today’s dwellings renders them much more difficult to repair than the structures of

earlier times. In a multiple dwelling, repairs may require access to equipment and areas in

control of the landlord. Low and middle income tenants, even if they were interested in making

repairs, would be unable to obtain financing for major repairs since they have no long-term

interest in the [Link] v. First National Realty Corp., 428 F.2d 1071, 1078-79 (D.C. Cir.),

cert. denied, 400 U.S. 925 (1970).

At common law, the landlord was not responsible if the premises became unsuitable once the

tenant moved in. This rule was often harshly applied, even for unsuitable conditions caused by a

sudden act of God, such as a tornado. Even if the premises collapsed, the tenant would be liable

to pay the rent for the duration of the lease. Today, however, many states have statutorily

abolished the tenant’s obligation to pay the rent if a non-man-made force renders the premises

unsuitable. Moreover, most states today impose on the landlord, after the tenant has moved in,

the responsibility for maintaining the premises in a safe, livable condition, consistent with the

safety, health, and housing codes of the jurisdiction.

These rules apply only in the absence of an express agreement between the parties. The landlord

and tenant may allocate in the lease the responsibility for repairs and maintenance. But it is

unlikely that any court would enforce a lease provision waiving the landlord’s implied warranty

of habitability for residential apartments, especially in areas where housing is relatively scarce.

Non-interference with Use

In addition to maintaining the premises in a physically suitable manner, the landlord has an

obligation to the tenant not to interfere with a permissible use of the premises. Suppose Simone

moves into a building with several apartments. One of the other tenants consistently plays music

late in the evening, causing Simone to lose sleep. She complains to the landlord, who has a

provision in the lease permitting him to terminate the lease of any tenant who persists in

disturbing other tenants. If the landlord does nothing after Simone has notified him of the

disturbance, he will be in breach. This right to be free of interference with permissible uses is

sometimes said to arise from the landlord’s implied covenant of quiet enjoyment.

Tenant’s Remedies

When the landlord breaches one of the foregoing duties, the tenant has a choice of three basic

remedies: termination, damages, or rent adjustment.

In virtually all cases where the landlord breaches, the tenant may terminate the lease, thus ending

her obligation to continue to pay rent. To terminate, the tenant must (1) actually vacate the

premises during the time that she is entitled to terminate and (2) either comply with lease

provisions governing the method of terminating or else take reasonable steps to ensure that the
landlord knows she has terminated and why.

When the landlord physically deprives the tenant of possession, he has evicted the tenant;

wrongful eviction permits the tenant to terminate the lease. Even if the landlord’s conduct falls

short of actual eviction, it may interfere substantially enough with the tenant’s permissible use so

that they are tantamount to eviction. This is known as constructive eviction, and it covers a wide

variety of actions by both the landlord and those whose conduct is attributable to him, as

illustrated by Fidelity Mutual Life Insurance Co. v Kaminsky, (see Section 13.5.1 "Constructive

Eviction").

Damages

Another traditional remedy is money damages, available whenever termination is an appropriate

remedy. Damages may be sought after termination or as an alternative to termination. Suppose

that after the landlord had refused Simone’s request to repair the electrical system, Simone hired

a contractor to do the job. The cost of the repair work would be recoverable from the landlord.

Other recoverable costs can include the expense of relocating if the lease is terminated, moving

costs, expenses connected with finding new premises, and any increase in rent over the period of

the terminated lease for comparable new space. A business may recover the loss of anticipated

business profits, but only if the extent of the loss is established with reasonable certainty. In the

case of most new businesses, it would be almost impossible to prove loss of profits.

In all cases, the tenant’s recovery will be limited to damages that would have been incurred by a

tenant who took all reasonable steps to mitigate losses. That is, the tenant must take reasonable
steps to prevent losses attributable to the landlord’s breach, to find new space if terminating, to

move efficiently, and so on.

Rent Remedies

Under an old common-law rule, the landlord’s obligation to provide the tenant with habitable

space and the tenant’s obligation to pay rent were independent covenants. If the landlord

breached, the tenant was still legally bound to pay the rent; her only remedies were termination

and suit for damages. But these are often difficult remedies for the tenant. Termination means the

aggravation of moving, assuming that new quarters can be found, and a suit for damages is time

consuming, uncertain, and expensive. The obvious solution is to permit the tenant to withhold

rent, or what we here call rent adjustment. The modern rule, adopted in several states (but not yet

in most), holds that the mutual obligations of landlord and tenant are dependent. States following

this approach have developed three types of remedies: rent withholding, rent application, and

rent abatement.

The simplest approach is for the tenant to withhold the rent until the landlord remedies the

defect. In some states, the tenant may keep the money. In other states, the rent must be paid each

month into an escrow account or to the court, and the money in the escrow account becomes

payable to the landlord when the default is cured.

Several state statutes permit the tenant to apply the rent money directly to remedy the defect or

otherwise satisfy the landlord’s performance. Thus Simone might have deducted from her rent

the reasonable cost of hiring an electrician to repair the electrical system.

In some states, the rent may be reduced or even eliminated if the landlord fails to cure specific

types of defects, such as violations of the housing code. The abatement will continue until the

default is eliminated or the lease is terminated.

Duties of Tenants

In addition to the duties of the tenant set forth in the lease itself, the common law imposes three

other obligations: (1) to pay the rent reserved (stated) in the lease, (2) to refrain from committing

waste (damage), and (3) not to use the premises for an illegal purpose.

Duty to Pay Rent

What constitutes rent is not necessarily limited to the stated periodic payment usually

denominated “rent.” The tenant may also be responsible for such assessments as taxes and

utilities, payable to the landlord as rent. Simone’s lease calls for her to pay taxes of $500 per

year, payable in quarterly installments. She pays the rent on the first of each month and the first

tax bill on January 1. On April 1, she pays the rent but defaults on the next tax bill. She has failed

to pay the rent reserved in the lease.

The landlord in the majority of states is not obligated to mitigate his losses should the tenant

abandon the property and fail thereafter to pay the rent. As a practical matter, this means that the

landlord need not try to rent out the property but instead can let it sit vacant and sue the

defaulting tenant for the balance of the rent as it becomes due. However, the tenant might notify

the landlord that she has abandoned the property or is about to abandon it and offer to surrender
it. If the landlord accepts the surrender, the lease then terminates. Unless the lease specifically

provides for it, a landlord who accepts the surrender will not be able to recover from the tenant

the difference between the amount of her rent obligation and the new tenant’s rent obligation.

Many leases require the tenant to make a security deposit—a payment of a specific sum of

money to secure the tenant’s performance of duties under the lease. If the tenant fails to pay the

rent or otherwise defaults, the landlord may use the money to make good the tenant’s

performance. Whatever portion of the money is not used to satisfy the tenant’s obligations must

be repaid to the tenant at the end of the lease. In the absence of an agreement to the contrary, the

landlord must pay interest on the security deposit when he returns the sum to the tenant at the

end of the lease.

Alteration and Restoration of the Premises

In the absence of a specific agreement in the lease, the tenant is entitled to physically change the

premises in order to make the best possible permissible use of the property, but she may not

make structural alterations or damage (waste) the property. A residential tenant may add

telephone lines, put up pictures, and affix bookshelves to the walls, but she may not remove a

wall in order to enlarge a room.

The tenant must restore the property to its original condition when the lease ends, but this

requirement does not include normal wear and tear. Simone rents an apartment with newly

polished wooden floors. Because she likes the look of oak, she decides against covering the

floors with rugs. In a few months’ time, the floors lose their polish and become scuffed. Simone
is not obligated to refinish the floors, because the scuffing came from normal walking, which is

ordinary wear and tear.

Use of the Property for an Illegal Purpose

It is a breach of the tenant’s obligation to use the property for an illegal purpose. A landlord who

found a tenant running a numbers racket, for example, or making and selling moonshine whisky

could rightfully evict her.

Landlord’s Remedies

In general, when the tenant breaches any of the three duties imposed by the common law, the

landlord may terminate the lease and seek damages. One common situation deserves special

mention: the holdover tenant. When a tenant improperly overstays her lease, she is said to be a

tenant at sufferance, meaning that she is liable to eviction. Some cultures, like the Japanese,

exhibit a considerable bias toward the tenant, making it exceedingly difficult to move out

holdover tenants who decide to stay. But in the United States, landlords may remove tenants

through summary (speedy) proceedings available in every state or, in some cases, through self-

help. Self-help is a statutory remedy for landlords or incoming tenants in some states and

involves the peaceful removal of a holdover tenant’s belongings. If a state has a statute providing

a summary procedure for removing a holdover tenant, neither the landlord nor the incoming

tenant may resort to self-help, unless the statute specifically allows it. A provision in the lease

permitting self-help in the absence of statutory authority is unenforceable. Self-help must be

peaceful, must not cause physical harm or even the expectation of harm to the tenant or anyone

on the premises with his permission, and must not result in unreasonable damage to the tenant’s
property. Any clause in the lease attempting to waive these conditions is void.

Self-help can be risky, because some summary proceeding statutes declare it to be a criminal act

and because it can subject the landlord to tort liability. Suppose that Simone improperly holds

over in her apartment. With a new tenant scheduled to arrive in two days, the landlord knocks on

her door the evening after her lease expires. When Simone opens the door, she sees the landlord

standing between two 450-pound Sumo wrestlers with menacing expressions. He demands that

she leave immediately. Fearing for her safety, she departs instantly. Since she had a reasonable

expectation of harm had she not complied with the landlord’s demand, Simone would be entitled

to recover damages in a tort suit against her landlord, although she would not be entitled to

regain possession of the apartment.

Besides summary judicial proceedings and self-help, the landlord has another possible remedy

against the holdover tenant: to impose another rental term. In order to extend the lease in this

manner, the landlord need simply notify the holdover tenant that she is being held to another

term, usually measured by the periodic nature of the rent payment. For example, if rent was paid

each month, then imposition of a new term results in a month-to-month tenancy. One year is the

maximum tenancy that the landlord can create by electing to hold the tenant to another term.

The Landlord and Tenant (Business Premises) Act (Chapter 185 of The Laws of Zambia)

The Landlord and Tenant (Business premises) Act was enacted in 1971 to supersede the Rent

Control (Temporary Provision) Act whose life was going to expire on 31st December1971.
Salient Provisions of the Act

Scope of Application

Section 3 of the Act provides the extent or scope of application of the Act.

Definition of ‘Lease’, ‘Tenancy’, and ‘Business’

The term ‘lease’ is defined under Section 2 of the Act to mean:-

“A lease, under-lease or other tenancy, assignment operating as a lease or under-lease, or an

agreement for such lease, under-lease, tenancy or assignment.”

The term “tenancy” is also defined under section 2 of the Act. “Business” is defined under

section 2 of the Act to mean:

“A trade, an industry, a profession or an employment, and includes any activity carried on by a

body of persons, whether corporate or unincorporated, but does not include farming on land.”

Security of Tenure under the Act

Security of tenure is secured under section 4 of the Act.

Tenancy May Come to an End by Notice to Quit Given by Tenant, Surrender and Forfeiture

In terms of section 4(2) of the Act, the provisions of section 4(1) (excerpted above) shall not

prevent the coming to an end of a tenancy by a notice to quit given by the tenant, by surrender or

by the forfeiture of a superior tenancy. Another situation where the current tenancy will come to

an end without the tenant having the right to apply for the grant of a new tenancy is where the

parties renew the tenancy by agreement. This is provided for under section 9 of the Act.

Termination of Tenancy by Landlord

Section 5 (1) of the Act provides for the termination of the tenancy by the landlord.

In order to have effect, the notice to quit should be given not less than six months and not more

than twelve months before the date of termination specified.

As for the reasons for the requirement in subsection 6 of section 5 that the landlord must state in

his notice on which of the grounds mentioned in section 11 he intends to rely, Romer L.J when

dealing with the 1954 English Landlord and Tenants Act (on which the Zambian Act is largely

based on), in the case of Betty’s Cafes Ltd v. Philips Furnishing Stores Ltd (1959) AC 20,

observed that:-

“The matter will ultimately come before the Court and it is obviously right that the tenant should

know in advance what is the case that he will have to meet at the hearing…. It is, I think,

intended to be in the nature of a pleading and its function, as in all cases of pleadings, is to

prevent the other party to the issue from being taken by surprise when the matter comes before

the Judge.”

Tenant’s Request for a New Tenancy

Section 6 of the Act deals with the tenant’s request for a new tenancy. A tenant’s request for a

new tenancy may be made where the tenancy under which he holds for the time being (current

tenancy) is a tenancy granted for a term of years certain and thereafter from year to year.

Grounds of Opposition to the grant of a new Tenancy available to the Landlord

The grounds on which a landlord may oppose an application for a new tenancy are set out in

section 11 of the Act. A landlord can only rely on the ground(s) stated in his notice to quit under

section 5 of the Act. According to the decision in the case of Apollo Refrigeration Services Co.

Ltdv. Farmers House Ltd (1985) ZR 182 a successor in title may rely on the ground(s) stated by

his predecessor. The court will grant a new tenancy unless the Landlord establishes one or more

of the statutory grounds of opposition.

According to Section 12(1), if the landlord succeeds in his opposition to the application for a

new tenancy, the Court should dismiss the application.

Compensation Where Order For New Tenancy Precluded On Certain Grounds

Section 19 of the Act provides for compensation to the tenant in certain cases where the Court is

precluded to grant a new tenancy (following an application under section 4) on the grounds spelt

out under paragraphs (e) (f) and (g) of section 11(1) of the Act. The grounds of opposition under

the said paragraphs (e), (f) and (g) of section 11(1) of the Act excerpted above (i.e. more

valuable as a whole, demolition or reconstruction and own occupation respectively) are similar in

that they are all for the landlord’s benefit.

Restrictions on Agreements Excluding Provisions of the Acts

Section 20 of the Act provides for restrictions on agreements excluding the provisions of Act.

Determination of Rent by Court in Certain Instances

Section 28 of the Act provides one important protection afforded to the tenant. The section

allows an aggrieved tenant to apply to court for determination of rent.(As amended by Act No.

13 of 1994)

It may be noted here that unlike under the Rent Act which requires that standard rent should be

determined by the Court, (the duty to apply is placed on the landlord) before letting or within

three months of letting, the Landlord and Tenant (Business Premises) Act only allows an

aggrieved tenant to apply for determination of rentals within three months of the letting.

Distress for Rent

Unlike the Rent Act, the Landlord and Tenant (Business Premises) Act is silent on the issue or

aspect of distress for rent. This was observed and stated in the case ofPaperex Limited v

DelukHigh School Supreme Court Appeal No. 141 of 1996 (SC)by Ngulube C.J, as he then was.

The term ‘distress’ mainly connotes a summary remedy by which a person is entitled without
legal process to take into his possession the personal chattels of another person to be held as a

pledge to compel the performance of a duty, the satisfaction of a debt or demand or the

payment of damages for trespass by cattle. The common law right of distress for rent in arrears is

a right for the Landlord to seize whatever movables he finds on the demised premises of which

rent or service issues and to hold them until the rent is paid or the service performed. This

position was made in the case of Lyons v. Elliot (1876) 1 QBD 210.

In Re Kamaya (1987) ZR 7, the High Court of Zambia held that an applicant for a certificate as

certificated bailiff must show, as a fit and proper person that he is fully conversant with the law

of distress and the procedure to be adopted in levying a distress.

Conclusion

Both landlords and tenants have rights and duties. The primary duty of a landlord is to meet the

implied warranty of habitability: that the premises are in a safe, liveable condition. The tenant

has various remedies available if the landlord fails to meet that duty, or if the landlord fails to

meet the implied covenant of quiet enjoyment. These include termination, damages, and

withholding of rent. The tenant has duties as well: to pay the rent, refrain from committing

waste, and not use the property for an illegal purpose.

Activity:

Consistent with the landlord’s implied warranty of habitability, can the landlord and tenant agree

in a lease that the tenant bear any and all expenses to repair the refrigerator, the stove, and the

microwave?

Under what conditions is it proper for a tenant to withhold rent from the landlord?
UNIT EIGHT: FITTINGS AND FIXTURES

Introduction

This unit provides for what qualifies to be a fixture at law and the distinction between a fixture

and a fitting. It also provides for the tests for determining whether a chattel has become a fixture.

Common law exceptions are also provided for in the unit.

Learning Outcomes

 After completing this Unit, a student should be able to:

 Demonstrate an understanding of the distinction between a fixture and a fitting,

 Identify the two tests applied in determining a fixture,

 Express an understanding of the common law exceptions to fixtures.

FIXTURES

From the legal point of view, land means not only the ground but also the subsoil and all

structures and objects such as buildings, trees and minerals standing or lying beneath it. This

concept of land is often expressed in the Latin maxim “quic quid plantatur solo,

solo cedit,” (whatever is annexed to the land becomes part of the

land). A fixture is therefore a chattel or object that has become so

affixed or attached to land so as to become part of the land. Or if it

involves a house, whatever has been built into a house with a view

that it should be permanently annexed thereto and be an integral

part of the unexhausted improvements, becomes part of the house

and in turn part of the land. If a chattel has not become a fixture, it is known as a

fitting. If the purpose of the annexation be for the better enjoyment of

the object itself, it may remain a chattel, notwithstanding a high

degree of physical annexation.

Distinction between a Fixture and a Fitting

Disputes may arise as to whether a chattel or object has become a fixture or not. Once a

chattel has become a fixture or part of the land it cannot generally

be removed. Burn has observed that the question whether a chattel remains a chattel or has

become part of the land can arise in many contexts, including; whether it passes to a purchaser

on the sale of land, whether it is included as part of the security on the mortgage of land, whether

it is owned by the estate of a tenant for life or passes to the remainder man, whether it passes on

death as realty or personal chattel.

In order to resolve such types of disputes there are tests that have been

formulated to determine whether a chattel has become a fixture or

not.

Tests for Determining Whether a Chattel Has Become a Fixture

In determining whether a chattel has become a fixture, a combination of two tests is applied;

these are,

a. the degree of annexation; and

b. the purpose of annexation.

The Degree of Annexation

Early law attached great importance to this test. In general, for an article to be

considered a fixture, some substantial connection with the land or a

building on it must be shown. Unless actually fastened or connected

with the land or building in a substantial way, a chattel cannot

normally become a fixture under the degree of annexation test. A

test often applied is whether the item can be removed without

causing damage or injury to land. Where the chattel merely rests of its own

weight on the land, it is not, prima facie, a fixture. However, this may be rebutted when it is clear

that the object was intended as a permanent improvement of the land. The more

securely an object is affixed and the more damage that would be

caused by its removal, the more likely it is that the object was

intended to form a permanent part of the land.

Case: Leigh v Taylor (1902) AC 157

Facts: Madame De Falbe was a life tenant of a stately home, in

which she had hung valuable tapestries belonging to her. The

canvasses were nailed over strips of wood which were themselves

nailed to the wall, and the tapestries were stretched over the canvas

and fastened to it by tacks. Mouldings, which were also fastened to

the surface of the wall, were placed round each piece of tapestry.

Upon the death of Madame de falbe a summons was taken out on

behalf of the remainderman.

Issues:

Whether, on the facts and with respect to the intention of the life

tenant in putting up the tapestries, the tapestries had been annexed

to the land as fixtures, and so passed to the remainder man as part

of the freehold.

Held:

The House of Lords found in favour of the estate of madame de

Falbe; the tapestries were chattels and so remained the rightful

property of Madame de Falbe’s estate. The intent of the life tenant

in hanging the tapestries was, ‘put up for ornamentation and for the

enjoyment of the person while occupying the house.’

The Purpose of Annexation

Where the purpose of attaching a chattel is to permanently improve

the land, rather than merely to display the chattel, then a fixture is

presumed. In order to determine the purpose of annexation, the question to be asked is,

“was the intention to effect a permanent improvement of the land or

building as such; or was it merely to effect a temporary

improvement or to enjoy a chattel as a chattel?” If the intention was

to effect a permanent improvement to the land, then the chattel is a

fixture. On the other hand, if the intention was merely to effect a temporary improvement

then the chattel is a fitting. Even if the degree of attachment is substantial,

an object or chattel may not become a fixture if the method of fixing

was necessary for its proper enjoyment. In Vaudeville Electric

Cinema Co. Ltd. v Muriset (1923) 2 CH 74 , cinema seats secured to

the ground were held to be fixtures. Objects such as statues, seats,

and ornamental vases have been held to be fixtures even though they

were only held in position by their own weight, the reason being that

they formed part of the architectural design of a house or grounds.

In the case of Lyon and Co. London City and Midland Bank (1903) 2 KB 135 and Reynolds v.

Ashby and Sons (1904) AC CH 74)

Facts: The claimants hired out some seating to Mr. Brammal for use in his cinema for a

period of 12 weeks. The terms of the contract granted an option to purchase the chairs but
this option was never exercised. The local authority required the seating in the cinema to be

fastened to the floor and therefore Mr Brammal fixed the chairs to the floor with screws.

Mr. Brammal then mortgaged the cinema to the defendant bank and defaulted on

payments. The defendants took possession of the cinema and the claimant brought an

action for delivery up of the seating and damages for their wrongful detention. The

defendants argued that the seating had become fixtures and therefore title had passed to

them.

Held:

The Chairs were chattels. “No doubt a chattel on being attached to the soil or to a building

prima facie becomes a fixture, but the presumption may be rebutted by showing that the

annexation is incomplete., so that the chattel can be easily removed without injury to itself

or to the premises to which it is attached, and that the annexation is merely for a

temporary purpose and for the more complete enjoyment and use of the chattel as a

chattel… Theses chairs did not cease to be chattels on being screwed to the floor and the

property in them did not pass to the defendants.”

Common Law Exceptions

As a general rule, if a chattel constitutes a fixture it cannot be removed from the land since it is

part of the land. There are, however, certain limited exceptions to this rule discussed below.

Landlord and Tenant

A tenant may remove certain ‘tenant’s fixtures’ during the lease or

within a reasonable time thereafter. These include:

(i) Trade fixtures – Fixtures attached to land by a tenant for the

purpose of carrying on a trade or business are at Common Law

removable by the tenant at any time during the course of the lease

or shortly thereafter. In Smith V City Petroleum Company Limited

(1940) 1 ALL ER 260, it was held that petrol pumps affixed to tanks

embedded in the ground were tenant’s fixtures, and were removable

within a reasonable time after the determination of the term and if

not so removed, the property in the pump passed on to the landlord,

and a subsequent tenant takes no interest in them. In this case since

the tenant did not remove the petrol pumps within a reasonable time

after the determination of the lease, they became the property of the

landlord.

(ii) Ornamental and domestic fixtures – A tenant may, during the

term of the lease, remove chattels he has fixed to the house for the

purpose of ornamental or domestic use. These are chattels that can

be removed without causing substantial damage to the building.

A mortgagor cannot remove fixtures during the course of the mortgage. As for fixtures attached

by the mortgagor after the date of the mortgage, the mortgagor is not entitled to remove them.

All fixtures attached to the land at the time of the contract of sale must be left for the purchaser
unless otherwise agreed. A mortgagor cannot remove fixtures during the course of the mortgage.

As for fixtures attached by the mortgagor after the date of the mortgage, the mortgagor is not

entitled to remove them. In the case of Equitable Guarantee and Trust

Company v Hukill (1912) Rep 60, an injunction was requested by a

mortgagee of land to restrain the removal of buildings erected by a

tenant of the mortgagor. The tenant occupied the land under a lease

which gave him express authority to erect a building to store lumber

and to remove the said building on or before the expiration of the

lease. The injunction suit was brought before the expiration of his

term and before a foreclosure of the mortgage. In dismissing the

case, the Court held that it was not shown that the original security

would be impaired in any way shape or form. Inspite of the old

maxim quic quid plantatur solo, solo cedit, the exceptional right of

the tenant to remove fixtures annexed for the purposes of trade has

long been recognized. As between the mortgagor and mortgagee, the

older stricter rule has been applied, where the mortgagor cannot

remove fixtures put on the property subsequent to the mortgage

even though they may have been attached to the land solely for
trade purposes.

Unit Summary:

In this unit you have learnt about what a fixture is and the distinction between a fixture and a

fitting. You have also learnt about the tests used to determine whether a chattel has become a

fixture and the common law exceptions to the issue of fixtures.

Activity:

 What is a fixture?

 Briefly explain the distinction between a fixture and a fitting.

 Discuss the two tests for determining whether a chattel has become a fixture.

 Outline and briefly discuss all the common law exceptions to the general rule on fixtures.

Unit Nine: DISCUSSING THE LAW ON MORTGAGES

Introduction
The focus of this chapter will be on the creation of a mortgage. When an individual wishes to

pay for the purchase of a property, it is very unlikely they will have sufficient free assets to

buy the property outright. Therefore, they will seek a loan to finance this up-front

purchase. In return for the loan, the lender will take ‘security’ over the property. In other

words, if the borrower of the money does not pay their loan back, the lender can take the

property and sell it in order to get the money they lent back plus interest. This is called a

mortgage. Mortgages can also operate on land already owned. For example, if I own a

property outright worth ZMK100,000.00 I may wish to mortgage this property for a

ZMK50,000.00 loan in order to start my own business. Again, if I fail to pay the loan repayments

back, the lender can take over my property and sell it to get their money back.

The term ‘mortgage’ is used interchangeably with the more modern term of ‘charge’.

Usually, ‘mortgage’ is used when referring to land, whereas ‘charge’ is used with other

chattels or property (you can mortgage any type of property, for example, a car if you so

wish). This chapter will focus solely on mortgages that relate to land, you may come across

charges of other property in your studies of commercial or company law.

What may seem a basic concept is complicated by the conflicting rights of the

mortgagee/chargee (the lender of the money) and the mortgagor/chargor (the borrower of the

money). Imagine a scenario where the mortgagor has had a number of financial emergencies in

one month; their car has broken down and so has their boiler. Unfortunately, they cannot pay

their mortgage repayment on time. Would it be fair if the mortgagee could immediately take and

sell the property to get their money back? Clearly not. Therefore, there are various rules and
safeguards that we will explore.

Learning Outcomes

After completing this Unit, a Student should be able to:

• Define a mortgage;

• Explain the nature of a mortgage and the types of mortgages;

• Outline how a mortgage is created;

• Outline the rights of the parties to a mortgage.

What is a mortgage?

The case of Santley v Wilde [1899] 2 CH 474 defined a mortgage as ‘a conveyance of land

as security for the payment of a debt or the discharge of some other obligation’. As

mentioned in the introduction, in its most basic form it is the borrowing of money with security

for that debt. If the borrower defaults on the payment, a lender may use the property to recover

the sum and any interest. The most common way a lender will do this is by selling the property.

The different types of mortgages

There are a number of differing types of mortgages. The majority of these are no longer used,

however, they may still exist and need to be understood. In modern times, the registration of title

means that the ‘registered charge’ is most commonly used.

Legal or equitable mortgage

The first way a mortgage or charge can be differentiated is by being either legal or equitable.
Almost any interest in land can be used as security under a mortgage. However, the type of

interest used as security will impact the type of mortgage formed. If a legal interest is used as

security, the mortgage can be legal or equitable. However, where an equitable interest is used,

for example, an equitable lease, the mortgage can only be equitable. In short, legal rights in a

property are instantly and expressly recognized by the law but there are also equitable interests

which may not be directly expressed by the law but may be implied from common law or

through our conduct.

Registered land

Where land is registered, a legal charge should be used. A charge should be created by the

completion of a deed. However, in line with other provisions in relation to registered land, the

charge must be registered before it will have legal effect (but it will operate in equity). The case

of City land and Property (Holdings Ltd) v Dabrah [1968] Ch 166 ruled that a legal charge is

created by simple words showing an intention that the land is to be mortgaged with the

repayment of a loan. There does not need to be an express mention of a legal charge.

First registration

As we know from the previous chapters, one of the aims of modern land law is for all land to

become registered, due to the difficulties that come with unregistered land. Unregistered land

must be registered when certain things happen with the land. The grant of a legal mortgage is one

of those triggers.

The creation of a ‘first protection legal mortgage’ of a qualifying estate means the property will
then be required to be registered. A ‘protected’ legal mortgage is one which is protected by the

deposit of documents relating to the estate – i.e. the title deeds. Following the registration of the

estate, the charge must be then registered as per the Land Registration Act. Once registered, the

charge will take effect as a charge by deed by way of a legal mortgage – even if it was created in

a different manner such as a S85 or S86 mortgage.

Equitable Mortgages

The equitable principle of ‘Equity regards as done that which ought to be done’ can apply to

create an equitable mortgage. This principle operates where there has been a contract to create a

legal mortgage but it has not yet been executed as a deed. This will give rise to an equitable

mortgage from the date the contract is formed. This contract must be in writing as per S2 of the

Law of Property (Miscellaneous Provisions) Act 1989. The same will apply to a legal mortgage

which has not been properly executed. However, the remedy of specific performance will only

be available if the mortgage money has been advanced to the mortgagor (Walsh v

Lonsdale(1882) 21 ChD 9). In absence of this, the mortgagor must seek damages.

Informal mortgage by deposit of deeds

Equity will also protect an individual where it was clear that the owner of the property intended

to charge their property in relation to a loan. One of the main examples of this is where the estate

owner deposits their title deeds with the lender in return for a loan. The case of Russel v Russel

(1783) 1 Bro CC 269 confirmed this.

However, for an informal mortgage to be formed, S2 of the Law of Property (Miscellaneous

Provisions) Act 1989 requires there to be an agreement made in writing. This was confirmed in

United Bank of Kuwait plc v Sahib [1997] Ch 107, meaning the simple deposit of deeds with

the lender is not enough, a written agreement must accompany this.

Equitable mortgage of an equitable interest

As was previously mentioned, a legal mortgage cannot be created in an equitable interest. An

equitable mortgage is created by the pre-1926 method of transferring the whole legal estate to the

mortgagee. This transfer must be made in writing to pass the equitable interest.

Rights of the mortgagor

 The right to redeem: The right of redemption refers to the right of the borrower to

‘redeem’ the mortgage once the loan and all of the interest has been repaid. Following

this repayment, the mortgage ends and the lender no longer has any right over the

property.

 Redeeming at law: The right to redeem at law is a contractual right. Therefore, the

borrower should turn to the contractual provisions to identify when they can redeem. It

may be a certain date and in a certain way. The contractual provisions cannot be altered

or ignored – Kreglinger v New Patagonia Meat & Cold Storage Co Ltd [1914] AC 25.

 Redeeming at equity: The equitable right of redemption is far more relaxed than its legal

counterpart. Equitable redemption is possible as long as the loan and any interest has

been repaid. This approach is taken by equity as the purpose of the mortgage is to provide
 security for the loan – once this has been paid, there is no reason why the mortgage

should continue to exist.

 The equity of redemption: In an equitable mortgage, where the legal estate has been

transferred to the mortgagee, the mortgagor owns the ‘equity of redemption’, this must be

distinguished from the equitable right to redeem – if you are faced with a question in

relation to an equitable redemption ensure to use this terminology. This refers to the

mortgagor’s equitable interest in the property, which is an interest in land – Pawlett v

Attorney General(1667) Hardres 465.

Protection on the equity of redemption

Equity protects the rights of the mortgagor, and does not allow any arrangement that prevents the

mortgagor from redeeming, and prevents any burdens imposed on the property during the term

of the mortgage operating once the mortgage is redeemed. Some of these restrictions will now be

considered.

Prevention of redemption

If a provision in an equitable mortgage prevents a mortgagor from redeeming it will be void. For

example, as seen in Toomes v Conset(1745) 3 Atk 261 a condition that would result in the land

becoming the mortgagee’s absolutely. This equitable principle even prevents the mortgagee from

having an option to buy the property as part of the mortgage, as if exercised, the mortgagor’s

right to redeem would disappear.

Postponement of redemption

A provision that postpones a redemption in such a way that the right to redeem is worthless will

also be void. Following, there is no equitable right to redeem before the date of redemption, but

once that date has passed, nothing can postpone redemption.

Case in focus: Knightsbridge Estates Trust Ltd v Byrne [1939] Ch 441

This case involves freehold property. The company mortgaged their property with a term of

repayment of 40 years. The mortgagor wished to redeem earlier, and the court held the

postponement of redemption for 40 years was valid, as it was a commercial agreement between

businessmen for a fee simple estate. The rule in this case is that the circumstances must be taken

into account. A term of repayment for 40 years may not be valid for a domestic mortgage, but in

the commercial world the circumstances are different.

Case in focus: Fairclough v Swan Brewery Co Ltd [1912] AC 565

This case involves a leasehold. The postponement of the date of redemption is much stricter for

leaseholds, as a lease is finite. In this case, the lease was for a term of twenty years. The date of

the redemption of the mortgage on the lease was up to six weeks before the end of the lease. The

mortgagor attempted to redeem early after only three years. It was held this was a valid early

redemption, as if the mortgagor had redeemed the lease with six weeks to end it would have been

virtually worthless, and very different from the lease with seven years to run. Therefore, the

postponement of redemption is unlikely with leases in most circumstances.

Other advantages for the mortgagee

The mortgagee may also insist on terms which are unrelated to the actual mortgage, but provide

a benefit to the mortgagee. For example, in a commercial mortgage, the mortgagor may agree to

only buy their supplies from a company owned by the mortgagee.

These kinds of agreements are valid so long as they are not in breach of competition law or

unconscionable. However, they are only usually valid for the duration of the mortgage (Biggs v

Hoddinott [1898] 2 Ch 307), even if the mortgagor has agreed that the agreement will continue

after the redemption of the mortgage.

Case in focus:Kreglinger v New Patagonia Meat & Cold Storage Co. Ltd [1914] AC 25

This case is an example of where an agreement may be valid after the redemption of the

mortgage. In this case, there was a five year agreement that the mortgagor would offer their

sheepskins to the mortgagee. However, the mortgage was redeemed after two years, the question

was whether this agreement should continue.

The House of Lords held that the agreement should continue for the full five years, as it was

reasonable, being for a short period and could be seen a separate agreement from the actual

mortgage. The business context also meant that it was an agreement formed by people who knew

what they were doing.

Right to sue

The mortgagor also has a right to sue in relation to their land, despite the estate being subject to

the rights of the mortgagee.

Right to surrender

The mortgagor may accept the surrender of a lease but only where a new lease is to replace this

surrendered lease within one month of termination – S100 of the Law of Property Act 1925
Rights of the mortgagee

 The right to title deeds and charge certificates: In relation to unregistered land (pre-

1926 mortgages), the mortgagee has the right to possession of the title deeds of the

property. This is because possession of the title deeds represents the legal estate, and of

course, in pre-1926 mortgages, there must be a transfer of a legal estate. However, this is

not required for post-1926 mortgages, but it is standard procedure for the mortgagee to

hold the deeds, because it prevents the mortgagor from making any further mortgage

without the mortgagee’s approval and knowledge.

 The right to possession: The mortgagee has a right to possession of the land from the

date of the mortgage (National Westminster Bank plc v Skelton [1993] 1 WLR 72).

There may be restrictions on this right, for example, possession can only be taken where

there has been a default by the mortgagor on the mortgage repayments. Clearly, it would

not be normal practice for the mortgagee to take possession whenever they like. Usually,

it is only used prior to the mortgagee exercising their right of sale when the mortgagor

has defaulted on sale. The taking of possession must be peaceful, and will usually require

the court’s permission. The protections afforded to the mortgagor will be explored further

later in this chapter.

 The right to insure: Due to the mortgagee’s interest in the property, they will want to

ensure that the property is insured, as if the property is destroyed, so is their security.

Therefore, terms relating to the mortgagor providing insurance for the property are
 commonplace. The premiums paid by the mortgagee will be added to the money owed by

the mortgagor.

 The right to lease : Once a mortgagee takes possession of a property, they then have a

right to lease the property. This lease binds the mortgagor. However, these leases are rare

as once possession is taken the mortgagee is usually looking to sell the property

Remedies of the mortgagee

As a mortgage provides security for the loan, a number of remedies are available to the

mortgagee in the event of a default of the mortgagor. The most obvious remedy would be a claim

under contract law for repayment of the loan. However, the mortgagor evidently does not have

the money to pay the mortgage repayments, therefore it is unlikely you will be able to recover

the debt from them. Therefore, a mortgage allows for more complex remedies to ensure the

security of a mortgage is effective.

Foreclosure

Foreclosure is the process of the mortgagee taking possession of the property. The remedy of

foreclosure cannot be effected until the contractual obligation of the mortgagor to keep up with

the mortgage repayments has been broken – Williams v Morgan [1906] 1 Ch 904.

The first step of foreclosure is for the mortgagee to obtain a court order as per Re Farnol Eades

Irvine & Co Ltd [1915] 1 Ch 22, and then possession of the property transfers to the mortgagee

as settlement of the mortgagor’s debt. The mortgagee can then sell the property. It is interesting

to note that if the property sells for more than the debt owed, the mortgagee does not need to pay
the balance to the mortgagor. This is one of the main reasons foreclosure is rarely used in

modern times, as it is unfair on the mortgagor, another reason for this is that mortgagor has the

right to ask for an order for sale rather than a foreclosure under S91(2) of the Law of Property

Act 1925, and as you will see when we explore an order for sale it is much preferable.

Possession and sale

We have touched on how a mortgagee will take possession of a property in order to repay his

debt, which will usually be by a sale. However, there may be certain circumstances in which the

mortgagee may use any income generated from the property to repay the debt. For example, if

the property has been let out to a tenant. In these circumstances, a mortgagee would appoint a

receiver to manage to land and ensure the land continues to produce income and is not

mismanaged, ensuring they do not become personally liable for any mismanagement.

The mortgagee must serve a notice that payment is required on the mortgagor and this default

continues for three months; or the interest payable is two months in arrears; or A covenant of the

mortgage deed has been breached. This remedy is advantageous in comparison to foreclosure for

a few reasons. Firstly, a court order is not required for a sale as is the case with foreclosure. The

sale may be negotiated in any way the parties see fit, it may be through an auction, for example,

and the mortgagee may also place conditions on the sale. The sale is also preferable to the

mortgagor as the mortgagee may be liable to the mortgagee for any loss as a result of negligence

when selling the property.

Unit Summary:
In this unit, we have learnt about the nature and creation of mortgages, the rights and duties of

the parties to a mortgage and the transfer of mortgages.

Activity:

- What is a mortgage

- Differentiate between a legal and equitable mortgage

- What are the rights and duties of mortgagees

- What are the rights and duties of mortgagors

UNIT ELEVEN: EASEMENTS AND PROFITS APRENDRE

Introduction

The unit looks at easements and profits aprendre including the nature of easements as interests in

land. It also looks at the essential characteristics of an easement and the acquisition of easements

and profits.

Learning Outcomes

After completing this Unit, a student should be able to:

 Demonstrate an understanding of what an easement and profits aprendre are.

 Outline the essential characteristics of an easement.

 Explain how easements and profits aprendre are acquired.

Definitions of easements and profits à prendre

An easement is either a positive or negative right of use over land that is owned by another. By

positive, we mean a right that the right-holder is allowed to exercise on the land. By negative, we

mean a right that the right-holder has to prevent the other landowner from acting in a certain

manner over that land. The easement benefits the landowner and their land, the so-called

“dominant tenement”(the property or piece of land that benefits from, or has the advantage of an

easement). The land over which the right is exercised (and there must be land to exercise the
right over) is called the “servient tenement.” The party gaining the benefit of the easement is the

dominant estate (or dominant tenement), while the party granting the benefit or suffering the

burden is the servient estate (or servient tenement). For example, the owner of parcel A holds an

easement to use a driveway on parcel B to gain access to A’s house.

The main example of an easement is a right of way. This is a right that the owner of the

dominant tenement has to cross over or pass over the land owned by the servient tenement

landowner. For example, if A (the dominant tenement holder) has an easement of a right of way

over neighbouring land owned by B (the servient tenement holder), then we can say A is able to

e.g. walk across or drive across B’s land and B has no legal basis to stop A from doing so

provided that A exercises the right in accordance with the wording of the easement. Easements

now also include a right to park a given motor vehicle on the servient land, provided that it is

exercised in a manner which is civil and is exercised only to satisfy those needs which are

reasonably incidental to the enjoyment of the dominant tenement (Moncrieff v Jamieson [2007]

UKHL 42, in which the dominant tenement was practically inaccessible to reach without parking

a car on the servient land).

Profits à prendre, meanwhile, are to do with the right of one party (the owner of the dominant

tenement) to take part of the soil, minerals or natural produce that is found on or in land owned

by another party (the owner of the servient tenement). This is a right that does not occur in

easements. Further, profits à prendre exist “in gross”, which means that the land which

comprises the dominant tenement need not be adjacent or neighboring to the land subject to the

servient tenement, whereas with easements there is a requirement for neighboring or adjacent

land. A profit in gross is normally considered as freely transferable and inheritable. A profit in

gross is a profit that is exercisable by the owner independently of his or her ownership of land.
Profits à prendre entitle the owner of the dominant tenement to take either a part of the land itself

(such as soil or sand) or take parts of things that grow on or in the land (for example, timber or

crops) or to take living creatures that grow on or in the land or waters within the servient

tenement. Water is exceptional in that it cannot be owned. 53The distinction is that in an easement

there is a nonpossessory interest in land generally giving a person only a right of way on the

property of another. However, in a profit a prendre, there is a right to take something off the land

of another person. An instrument creating a profit a prendre must clearly indicate the land which

is subject to the burden and the land to which the benefit is appurtenant. A profit a prendre may

exist in perpetuity or for a specified number of years.

Examples of profit a prendre include rights to:

- Graze stock

- Plant and harvest crops

- Quarry stone, sand or gravel, or

- Take timber

The Essential Characteristics of an Easement

There are established criteria for determining whether an alleged right is capable of amounting to

an easement. It was laid down by the Court of Appeal in England in Re Ellenborough

Park(1955)3 ALL ER 667, that there are four essentials for an easement to exist. These are

discussed below.

There must be a Dominant and Servient Tenement

53
Alfred F Beckett Ltd v Lyons [1967] Ch 449 CA
For a right to exist or qualify as an easement there must be a dominant and servient tenement.

Dixon has observed that this criterion lies at the very heart of the nature of an easement. It may

be recalled from above that every easement involves two separate pieces of land. This is because

easements are rights which exist for the benefit of one piece of land and are exercised over

another. There must be land that is benefiting from the exercise of the right (the dominant

tenement) and land that is burdened (the servient tenement). In technical terms it is said that an

easement cannot exist “in gross” i.e. independent of ownership of land but only as appurtenant

(attached) to a dominant tenement. A privilege to a person with no dominant land is a licence.

An easement cannot exist unless and until there is both a dominant and servient tenement in

separate ownership. In London and Blentheim Estates Limited v Ladbroke Retail ParksLimited

(1993) ALL ER 307, it was held that no easement existed because the potential servient tenement

had been transferred before the dominant tenement had been acquired.

The Dominant and Servient Tenement must not be Owned and Occupied by
The Same Person
It has been observed that the creation and continued existence of an easement is dependent on the

dominant and servient tenements being owned or occupied by different persons. This is simply

because an easement is essentially a right in another person’s land: e.g. to walk over it or to

enjoy the passage of light over it. According to the learned authors of Megarry’s Manual of the

Law of Real Property, an easement is essentially a right in alieno solo (in the soil of another)

and therefore a person cannot have an easement over his land. In Roe v Siddons (1888) 22 QBD

224, Fry L.J observed that:-

“When the owner of White acre and Black acre passes over the former to black acre he is not
exercising a right of way in respect of Black acre; he is merely making use of his own land to get

from one part of it to another.”

Rights exercised by an owner over another land of his own are known as quasi-easements.

The learned authors of Megarry’s Manual of the Law of Real Property have pointed out that

the same person must not only own both tenements, but also occupy both of them before the

existence of an easement is rendered impossible. There must be both unity of ownership and

unity of possession for an alleged easement to be rendered impossible. This means that a tenant

may enjoy an easement over land retained by the landlord and vice versa as in this case there is

unity of ownership but no unity of possession. Once the dominant tenement and servient

tenement come into the ownership and possession of the same person, any easement over the

servient tenement is extinguished.

The Easement must accommodate the Dominant Tenement

For an alleged right to qualify as an easement, it must accommodate i.e. benefit the dominant

tenement as tenement. This requirement makes it clear that easements are rights which attach to

land and not to persons. Thus, any alleged easement must confer a benefit on the land as such

and not merely on the person who currently owns the land. The general idea is that the alleged

easement must benefit the user of land, the value of the land or the mode of occupation of the

land.

According to Megarry’s Manual of the Law of Real Property, the test is whether the right

makes the dominant tenement a better and more convenient tenement. There must be a
connection or nexus between the user of the dominant tenement and the enjoyment of the right.

This may be established by showing that the general utility of the dominant tenement has been

improved for example, by giving a means of access or light.

The right must not confer a purely personal advantage on the owner of the dominant tenement. In

Hill v Tupper (1862) 2H 8C 121, the owner of a canal granted the Plaintiff the sole and

exclusive right to put or use pleasure boats on the canal for profit. The defendant without any

authority put rival boats on the canal. It was held that Hills right amounted to a mere personal

advantage or a licence not a right attaching to land itself. He could not sue Tupper as the right

was not an easement. The right was not sufficiently connected with the land so as to amount to

an easement. It has been observed that if Hill had been granted the right to cross and recross the

canal to get to and from his land then an easement could have been created.

The Easement must be Capable of Forming the Subject Matter of the Grant

This is an all embracing criterion. According to Dixon, technically the point is that every

easement must be capable of being expressly conveyed by deed; it must lie in grant. What it

means in practice is that there are certain types of rights which previous case law has suggested

are intrinsically unsuitable for inclusion in the list of easements.

According to Megarry’s Manual of the Law of Real Property, the above criterion involves the

following points:-

(a) That there must be a capable grantor and grantee. The person or entity granting an

easement must have the capacity to do so. Equally, the grantee must have legal

capacity to receive a grant.

(b) The right must be sufficiently definite. A vague or inexact right cannot exist as an
 easement; for example, there is no easement of privacy or of a general flow of air (not

in a defined channel) over land.

(c) The right must be within the general nature of rights capable of existing as easements.

The learned authors of Megarry’s Manual of the Law of Real Property have further observed

that although most easements fall under one of the well-known heads of easements such as way,

light, support, etc., the list of easements is not closed. 54 The right must fall within the general

characteristics of an easement. It is not necessary that a new easement should fall under

recognized categories (way, water, light, support). What is of importance is that the right should

satisfy the four general characteristics of an easement. New easements have from time to time

been recognized.

Acquisition of Easements and Profits

Easements and Profits may be acquired or created by statute or by grant, express or implied or by

prescription based on long use or presumed grant.

Express Grant or Reservation

An easement is expressly granted when the owner of the potential servient tenement grants or

gives an easement over that land to the owner of what will be the dominant tenement. Under

express reservation, the owner of the potential dominant tenement keeps i.e. reserves an

easement over that land. This can occur where land is owned by a potential servient owner and

he then sells or leases a piece of that land to another, he may include in that sale or lease a grant

of an easement to the purchaser.

Statute

Easements may be granted by an Act of Parliament for example giving rights in respect of

cables, pipes, sewers etc.

54
Browne v. Flower (1911) I Ch 219
Presumed Grant or Prescription

A presumed grant may be based on the doctrine of prescription at common law or on the doctrine

of a lost modern grant or may arise under the Prescription Act, 1832 and in each of these cases

the right is founded on long undisturbed possession or use.

Recording the Memorial of Easements in a Certificate of Title.

Section 50 of the Lands and Deeds Registry Act provides how memorial of easement

must be recorded in a certificate or provisional certificate of Title.

Unit Summary:

In this unit you have learnt about the Nature and essential Characteristics of an easement. You

have also learnt about how one can acquire both an easement and a profit. There are essentially

three steps to answering questions relating to easements:

The first is the need to identify that the right claimed is alleged to be (or may be interpreted as)

an easement or a profit à prendre. Depending on the answer, you will able to determine which of

the following questions apply (recalling, for example, that profits à prendre do not require

adjacent or neighbouring land for the dominant tenement).

The second step is to ask whether the alleged easement or profit à prendre satisfies the Re

Ellenborough Park criteria. As a quick reminder, those criteria are:

There must be both a dominant and servient tenement, the easement must accommodate the

dominant tenement, the dominant and servient tenements must be owned by different persons,

and the right claimed must be capable of forming the subject matter of a grant.

The third step is to examine how the right has arisen. It may have arisen by deed or by statute,
and you should certainly be aware of these possibilities. However, as you will likely only have

one question (or at most two questions) on easements in an exam, the problem question will

likely be directed to matters of implied easements. Therefore, if it is an implied easement, recall

the four kinds of implied easement:

Activity:

Q1. Alan purchases the ground floor of a property owned by Business Plc. Business Plc retains

control of the floors above. Alan intends to open a restaurant in the newly-purchased portion of

the land, and in the course of doing so discovers that he needs to install a special air conditioning

unit as required by health and safety regulations. Alan had covenanted to comply with all such

regulations at the time of purchase. The air conditioning unit needs some of its wiring to run

through the floors owned by Business Plc. Advise Alan.

Q2. Alan is also looking at setting up his utilities for the restaurant. He notes that Business Plc

already have the necessary piping and wiring for water, electricity, and gas for the floors of the

building still owned by Business Plc. He could get the utilities installed separately (i.e. without

needing access to the floors owned by Business Plc), nevertheless Alan asks Business Plc if they

will consider installing similar utilities connections on his behalf through their floors to his

restaurant, but Business Plc say it is not their responsibility. Advise Alan.

Q3. Charlie enjoys the view of the lake from his property, Greenacre. Delia owns the

neighbouring plot of land. Delia informs Charlie that she has just received planning permission
to construct a new set of houses on her plot of land. When Charlie sees the plans, he realises the

houses will disrupt his view. He comes to you for advice, saying he’s sure a lawyer friend told

him that he can get an easement to prevent the construction.

Q4. Excavators Inc, based in Northampton are looking to mine new resources as part of their

business. They have learned that the water of a particular lake in Cornwall would be especially

profitable given its unique properties. They approach the equitable owner of the land on which

the lake sits, Francis, to ask if they may be given special permission to take the water from the

land.

Advise Francis.

Answers:

A1. This is a revised version of the case of Wong v Beaumont Property Trust Ltd. In that case,

you will recall the court considered implying an easement of common intention: both the parties

were taken to have intended that Wong would be able to comply with the relevant regulations,

and in the course of such compliance, Wong had to have access to the parts of the land owned by

Beaumont. And as you will recall from that case, an easement was indeed implied.

A2. Unlike in Q1, the person with the alleged dominant tenement (Alan) is looking to require the

owners of the servient tenement (Business Plc) to actively do something to the servient land

rather than simply allow Alan to do something on their land. As you will recall, any easement

that requires the servient tenement owner to actively and positively expend time, resources and

money on an activity is not a valid easement (Liverpool County Council v Irwin). Therefore, any

such attempt at an easement would fail.

A3. Charlie is in this instance looking to acquire an easement of retaining a good view of the

lake. The problem for Charlie, as per Hunter v Canary Wharf, is that the right is too broad, too

ill-defined, and in any event does not belong to the class of rights which have classically been

defined as an easement. Charlie’s hopes for an easement would therefore fail.

A4. There are two clues in this question that the type of right claimed is a profit à prendre. First,

the locations suggest that the land would not be adjacent or neighbouring. Second, Excavators

Inc is looking to take a natural resource from the land. You should note these relevant

characteristics, while also noting that Excavators Inc cannot actually acquire a profit à prendre

for the water because water is a resource that cannot be the subject of a profit à prendre as per

Alfred F Beckett Ltd v Lyons.

UNIT TWELVE: PRINCIPLES OF OWNERSHIP OF LAND

Introduction:

In this unit, we are going to learn about the concept of understanding the issue of ownership of

land. To that end, we will look at the doctrine of estates and interests in land, legal and

equitable interests, concurrent interests in land, the rule against perpetuities, and the

doctrine in Walsh v Lonsdale.

Learning Outcomes:

At the end of this unit, a student should be able to:

 Demonstrate an understanding of the concept of ownership of land

 The difference between an estate and interest in land

 Concurrent interests in land

 The rule against perpetuities

 Doctrine in Walsh v Lonsdale

What is an estate in land?

It is essentially the legal and beneficial rights and interests a person has over land and property.

The lands register gives a complete picture of title (ownership) to land and property, and shows

the rights, obligations and interests attaching to or affecting the land.

What is a legal estate?

As we stated in the previous lecture, all land belongs to the president of the Republic of Zambia,
therefore a person cannot own land but instead owns a series of rights in relation to that land

which is known as an estate. Thus one only owns the leasehold estate in land for 99 years which

is registered at Ministry of Lands. The leasehold owner holds the land subject to the restrictions

and covenants indicated in the lease.

What is a legal interest?

It is a legal right over land which is effectively a complete, permanent and absolute form of

ownership. For example, a legal easement is a legal right of way over someone else’s land,

sometimes created by a formal legal deed. The right of easement should be registered at the lands

and deeds registry.

What is an equitable or beneficial interest in Land?

This is the financial interest in property e.g. interest of a beneficiary under a trust; Co-ownership-

where two people own land have a beneficial interest in the share owned by the other partner; an

interest arising under a contract for the sale of land.

What are concurrent interests in land?

This is where two or more people own/have an interest in the same piece of land or property.

The Rule against Perpetuities?

It is a legal rule in law that prevents people from using legal instruments (usually a deed or a

will) to exert control over the ownership of property for a time long beyond the lives of people

living at the time the instrument was written. Specifically, the rule forbids a person from creating

future interest in property that would vest 21 years after the lifetimes of those living at the time

of creation of the interest. In essence, the rule prevents a person from putting qualifications and

criteria in a deed or will that would continue to affect ownership of property long after he or she

has died, a concept often referred to as control by the “dead hand” or “mortmain”. John
Chapman Gray put it as follows:

“No interest is good unless it must vest, if at all, not later than 21 years after some life in being at

the creation of the interest.”

The rule against perpetuities serves a number of purposes:

1. To allow owners to attach long-lasting contingencies to their property harms the ability of

future generations to freely buy and sell the property, since few people would be willing to buy

property that had unresolved issues regarding its ownership hanging over it.

2. The judges often had concerns about the dead being able to impose excessive limitations

on the ownership and use of property by those still living. The rule only allows testators to put

contingencies on ownership upon the following generation plus 21 years.

3. The rule was used to prevent very large, possibly aristocratic estates from being kept in

one family for more than one or two generations at a time.

The Rule in Walsh v Lonsdale (1882) 21 Ch D 9

Walsh v Lonsdale (1882) 21 Ch D 9 is an English property law case about the effect of the

Judicature Acts. It is the authority for the equitable maxim that "Equity regards as done that

which ought to be done". It created the doctrine of anticipation, whereby a specifically

performable agreement to create or transfer a property right will be good in equity, even if not

finally effective at law.

Facts

The defendant, Lonsdale, agreed to grant the claimant, Walsh, the lease of a mill for seven years,

the rent to be paid quarterly in arrears with a year’s rent payable in advance if demanded. The

parties did not execute a deed for the grant of the tenancy, but the claimant moved in and paid

rent quarterly in arrears. The defendant then demanded a year’s rent in advance. The claimant
refused to pay.

Issues:

The claimant argued that under common law rules a lease had to be created by deed to be legal.

This had not been done, therefore the lease was not legal.

Held:

The Court of Appeal found in favour of the defendant landlord. The Judicature Acts 1873-1875

had fused the two separate legal systems of common law and equity into one system. In any

conflict, the rules of equity should prevail. According to the equitable maxim ‘Equity looks on as

done that which ought to be done’ the parties were treated as having a lease enforceable in equity

from the date of the agreement to grant the lease. Such a lease was held under the same terms

and the court could order specific performance of it. Lord Jessel stated:

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.”

Significance

The Walsh v Lonsdale principle is now embodied in the recognition by the courts of the

equitable lease.
 UNIT THIRTEEN: ANALYSING THE AFRICAN CONCEPT OF LAND

OWNERSHIP

Introduction

This unit looks at Customary Land Tenure including how customary land is acquired and

transferred. This unit also looks at the Colonial views on the Nature of Interests and Rights under

African Customary Holding or Tenure. It also looks at the reaction to Colonial views and the

positions of Chiefs under Customary Tenure.

Learning Outcomes

After completing this Unit, a student should be able to:

• Demonstrate an understanding of Customary Land Tenure.

• Outline how Customary Land is acquired and transferred.

• Outline the Colonial views on the Nature of Interests and Rights under African

Customary tenure.

• Cite the reactions to Colonial views and the position of Chiefs under African Customary

Tenure.

Meaning of Land Tenure

The word tenure, from the Latin word tenere which means to hold, implies that land ‘is held’
under certain conditions. Land tenure may be described as a system of rules and practices under

which persons may exercise and enjoy rights in land or objects fixed immovably on land. Land

tenure is a relationship between the persons and land which is exemplified through rights.

Direct Acquisition of Customary Land

An individual may acquire land by opening up and using a parcel of land over which no

individual has already prior established rights, or if any earlier established rights have already

elapsed or been abandoned in respect of such piece or parcel of land. This is still the most usual

method of acquiring land under customary tenure in Zambia.

Transmission and Succession: Inheritance

Generally under Customary tenure in Zambia the individual’s holding does not come to an end at

his death. The same is inheritable by kinsmen depending on the customary law of the area or

district. An individual who has already acquired rights over a parcel of land may transfer those

rights to another in any of the following ways:

a) Temporary transfer by way of loan of the land; or

b) Outright transfer by way of gift or exchange; or

c) Sale.

According to Professor Mvunga, there is generally no sale of land under customary tenure in

Zambia. What are sold are the improvements on the land as opposed to land itself.

Communal or Group Ownership of Land

It may be recalled that in Tijani v Secretary Southern Nigeria (1921) AC 399, Lord Haldane
quoted the words of Rayner, C.J. in the opinion he gave in the case. He observed that:- “The next

fact which it is important to bear in mind in order to understand the nature of land law is that the

notion of individual ownership is quite foreign to native ideas; land belongs to The community,

the village, or the family, never to an individual.” Elias has scoffed at the suggestion or idea that

the whole African land holding or ownership was communal. He retorts thus:- “The fallacy of so

describing the African mode of land holding arises, partly from the greater fallacy underlying the

doctrine of “primitive communism,” and partly from an imperfect appreciation of the exact

nature of the concept in African legal categories.”

According to Elias, the land holding recognized by African customary law is neither ‘communal’

holding nor ‘ownership’ in the strict sense of the term. He opined:-

“The term ‘corporate’ would be an apter description of the system of land-holding, since the

relation between the group and the land is invariably complex in that the rights of the individual

members often co-exist with those of the group in the same parcel of land. But the individual

members hold definitely ascertained and well-recognized rights within the comprehensive

holding of the group.” Elias went on to further observe that:- “Again, the individual’s holding

does not come to an end at his death; it is heritable by his children to the exclusion of all others.

In short, he is a kind of beneficial part-owner, with perpetuity of tenure and all but absolute

power of disposition.” Bentsi - Enchill has observed that although in the large number of

traditional African polities allodial title is regarded as being vested in the community as a whole

or in a chief as trustee for all people there is still some element of individual ownership.

C.M.N. White, a colonial Government land tenure officer in Northern Rhodesia, conducted an

official inquiry on the land tenure system in all provinces of Northern Rhodesia, apart from

Barotseland. The conclusion from his findings was that land was generally individually acquired
and owned. Writing on the Gikuyu land tenure system, the late anthropologist and first President

of Kenya, Jomo Kenyatta, in reaction to the views that land was communally or tribally owned

retorted thus:- “The sense of private property vested in the family was so highly developed

among the Gikuyu but the form of Private ownership in the Gikuyu community did

notnecessarily mean the exclusive use of the land by the owner or the extorting of rents from

those who wanted to have cultivation or building rights. In other words, it was a man’spride to

own a property and his enjoyment to allow collective use of such property. This sense of

hospitality which facilitated the communal use of almost everything, has been mistaken by the

Europeans who misinterpreted it by saying that the land was under the communal or tribal

ownership, and as such the land must be ‘mali ya serikali’ which means Government property.

Having coined this new terminology of land tenure, the British Government began to drive away

the original owners of land.” From the various views expressed above it comes out clearly that it

would be incorrect and untenable to describe the overall African system of land holding or tenure

as communal or tribal. Depending on the circumstances, the rights or interest could be communal

(such as grazing rights) individual, concurrent or successive.

Research Development and Findings

According to a research done or conducted by White, a colonial land officer in 1959 in all

provinces of Northern Rhodesia, apart from Barotseland, land was generally individually

acquired and owned. The research findings pointed to the fact that land even among indigenous

Africans is individually owned as opposed to the general view held by the colonial masters that

land is communally owned.

Positions of Chiefs under African Customary Tenure

Muna Ndulo has observed that a chief is everywhere in Zambia regarded as the symbol of
residuary and ultimate control of all land held by the tribal community and further that in a loose

mode of speech, is sometimes called its owner. Ndulo noted that a chief holds the land on behalf

of the whole community in the capacity of a caretaker or trustee only and further that the chief’s

position was not comparable to the Crown’s position in England, where by the ownership of all

land in England is in the crown alone and everybody else holds his land only as tenant of the

Crown. According to Elias, the land holding recognized by African customary law is neither

‘communal’ holding nor ‘ownership’ in the strict sense of the term. Elias went on to further

observe that the individual’s holding does not come to an end at his death; it is heritable by his

children to the exclusion of all others. In short, he is a kind of beneficial part-owner, with

perpetuity of tenure and all but absolute power of disposition. Bentsi-Enchill has observed that

although in the larger number of traditional African politics custodial title is regarded as being

vested in the community as a whole or in a chief as trustee for all people there is still some

element of individual ownership.

Unit summary

In this unit you have learnt about meaning of customary land tenure and how customary land is

acquired and transferred. You have also learnt about Colonial views on the nature of interests

and rights under African Customary holding or tenure. You have also learnt about the reaction to

Colonial views and the positions of Chiefs under African Customary Tenure.

Activity:

 Briefly discuss the meaning of customary land tenure.

 Explain briefly how customary land is both acquired and transferred.

  Outline the Colonial conception of land ownership under African Customary Tenure.

 Cite clearly the reactions to Colonial views with regards to land holding.

 Discuss the positions of Chiefs under African Customary Tenure.

UNIT FOURTEEN: COMPULSORY ACQUISITION OF LAND IN

ZAMBIA

Introduction

The unit provides for compulsory acquisition of property and what is meant by power of eminent

domain. It also provides the historical background to compulsory acquisition and the 1969

referendum. The unit also provides the Constitutional basis for compulsory acquisition and the

salient provisions of the Land Acquisition Act.

The Power of Eminent Domain

Compulsory acquisition may be defined as the taking of property or land or an interest in land,

usually under statutory power, from the owner without his agreement. Where there is statutory

power to take mere possession of the land without the acquisition of any estate or interest in it

apart from the possession, it is said to have been requisitioned. Compulsory acquisition is an

aspect of the state’s power of eminent domain i.e. the power, usually deemed inherent in

sovereign states, to take private property for public use, subject to making reasonable

compensation, as distinct from mere seizure. In the case of United States of America v Frank

[Link], Adam of George J. Pumpelly deceased and others, Law [Link] 106-109,the United

States Supreme Court restated the right or principle of eminent domain thus:-

“The power of taking private property for public uses generally termed the right of eminent
domain belongs to every independent Government. It is an incident of sovereignty and requires

no constitutional recognition.”

The general law relating to the subject of compulsory acquisition in Zambia is contained in the

Constitution (Cap 1) and the Lands Acquisition Act (Cap 189). In addition, statutory provision

for acquisition of land either by the Government or local or other public authorities is made in

legislation relating to particular subjects. Instances of such legislation giving power to take

possession of, or acquire land compulsorily are, the Electricity Act (Cap 433),the Zambia

Tanzania pipeline Act (Cap 455), Tanzania – Zambia Railway Act (Cap 454) and the Town and

Country Planning Act (Cap 283). Most of these statutes provide for the application of the Lands

Acquisition Act, in terms of compensation for the compulsory acquisition.

Brief Historical Background to Compulsory Acquisition of Land in Zambia

The Public Lands Acquisition Ordinance

Dunning has observed that legislation relating to the power of eminent domain in most African

Countries could be traced to the period of colonial rule when the colonial rulers introduced

legislation based on their European experiences and that many African Countries inherited, upon

independence, eminent domain legislation with a broad but real public purpose limitation.

Dunning further went on to observe that a number of those countries have since (their

independence) recast their law of eminent domain. These observations by Dunning are true in

relation to Zambia.

Legislation relating to the power of eminent domain in Zambia can be traced back to 1929 when

the Public Lands Acquisition Ordinance was enacted. The Public Lands Acquisition Ordinance
(Cap 87 of 1958 edition of the Laws of Zambia ‘it is since repealed’) was first enacted by the

Northern Rhodesia Legislative Assembly in 1929. Section 3 of the Ordinance empowered the

Governor to acquire any lands required for any public purposes for an estate in fee simple or for

a term of years as he could think proper, paying such consideration or compensation as could be

agreed upon or determined under the provisions of the Ordinance. Section 2 of the Ordinance

defined public purpose to mean for the exclusive use of Government or for general public use. In

terms of section 9 of the Ordinance, any dispute as to compensation and title was to be settled by

the High Court. The Public Lands Acquisition Ordinance, which at independence became an Act,

remained on the statute books until 1970 when it was repealed by the Lands Acquisition Act

1970.

The Independence Constitution as Regards property Rights and Compulsory Acquisition.

The Zambian Independence Constitution, like most of the Independence Constitutions of former

British Colonies and protectorates, was a British legacy. The Zambian Independence

Constitution entrenched a Bill of Rights. The Bill of Rights or any provisions thereunder could

not be amended without a referendum in which all registered voters were entitled to vote

(Section 72 of the Independence Act).

Section 18 of the Independence Constitution specifically guaranteed protection against

deprivation of property and prohibited compulsory acquisition, except on the grounds itemized

or circumscribed under the section, in which case adequate and prompt compensation had to be

paid. Further, section 18 (2) of the Independence Constitution allowed the person entitled to

compensation under the section to remit within a reasonable time after he had received any

amount of compensation the whole of that amount to any country of his choice outside Zambia.
It has been observed that Section 18 of the Independence Constitution represented “an attempt

by the outgoing British Government to secure the continued exploitation of independent Zambia

by the settlers and to protect their rights to property, although many of them had already left the

country permanently.”The Independence Constitution allowed the dispossessed land owner

access to the courts to determine the legality of the acquisition and the amount of compensation

and the promptness of payments.

After Independence, most of the white settlers that owned land left the country leaving large

tracts of land. The new Zambian Government of President Kaunda found itself in a situation

where it could not legally acquire the large tracts of land that were left abandoned and unutilized

due to the provisions of section 18 of the Independence Constitution. Under section 18 of the

Independence Constitution, it was not a ground for compulsory acquisition of land if the same

was abandoned, unoccupied, unutilized, underdeveloped or if it was owned by an absentee

landlord.

The 1969 Referendum

As pointed out above, any amendment to the Independence Constitution’s Bill of Rights required

a referendum. The 1969 referendum was intended to end all referenda, because it was ultimately

intended to remove the entrenchment clause in the Constitution and simplify the amendment of

any part of the Constitution to a Parliamentary majority. In 1969, a referendum was held during

which the majority of the registered voters voted for the removal of the entrenchment clause.

Once the referendum had removed the constitutional barrier, the constitutional procedure was

duly amended and Parliament enacted a number of Constitutional Amendment Acts including the

Constitutional (Amendment) (No.5) Act, 1969. Section 4 of the said Amendment Act repealed
the whole Section 18 of the Independence Constitution and substituted a new section 18. The

new section 18 of the Constitution continued to guarantee protection against deprivation of

property. Compulsory Acquisition could be done under the authority of an Act of Parliament

which provided for payment of compensation for the property or interest or right to be taken

possession of or acquired. In general, the amendment Act extended the grounds on which land

could be compulsorily acquired by the Government. The amendment allowed compulsory

acquisition in terms of any law relating to abandoned, unoccupied or undeveloped land as

defined under such a law and also in terms of any law relating to absent or non-resident owners

as defined in such a law.

The Constitutional amendment also took away the power of the courts to determine the amount

of compensation. Under the amendment, in default of agreement the amount of compensation

was to be determined by a resolution of the National Assembly. Once the Compensation was

determined by the National Assembly, it could not be questioned in any court on the ground that

such compensation was not adequate.

Constitutional Basis for Compulsory Acquisition of Property in Zambia

The current 1991 Constitution, as amended, like the previous Constitutions the country has had,

provides guarantees and protection against deprivation of property (Article 16[1] of the

Constitution). The said Article clearly states the general rule that the acquisition must be under a

law which must provide for adequate compensation. Sub article 2 of article 16 of the

Constitution gives exceptions to the general rule. The sub article provides for instances where

property could be compulsorily taken away without adequate or any compensation. It goes on to

list numerous situations but of relevance to the subject matter at hand being the exceptions under
article 16(2) (j) and (k) which provide as follows:

(j) in terms of any law relating to abandoned, unoccupied, unutilized or undeveloped land,

as defined in such law;

(k) in terms of any law relating to absent or non-resident owners, as

defined in such law, of any property.

In terms of Article 16 (3) of the Constitution, the powers to decide on the amount of

compensation, in default of agreement, has been reverted from Parliament to a court of

competent jurisdiction.

The Land Acquisition Act, 1970

The Public Lands Acquisition Act, remained on the statute books up to 1970, when it was

repealed by the Lands Acquisition Act. The Lands Acquisition Act was enacted following the

removal of the entrenched clauses under the Constitution of Zambia (Amendment) Act of 1969

pursuant to a referendum of the same year. The Lands Acquisition Act was enacted mainly to

address the problem created by absentee landlords who left after the country attained

independence in 1964. The Lands Acquisition Act was conceived as a radical departure from the

Lands Acquisition Ordinance in that the exercise of powers of compulsory acquisition is not

shackled by an authoritative enumeration of the purposes for which land may be compulsorily

acquired. The Act does not deny the justice of requiring compensation for the compulsory

acquisition of private property. The Act, in terms of section 15, restricts payment of

compensation to only developed and utilized land and not undeveloped and unutilized land.

Absentee Landlord were singled out or targeted as the object of the Act.
Salient Provisions of the Act.

The preamble to the Lands Acquisition Act provides that it is “an Act to make provision for the

compulsory acquisition of land and other property and to provide for matters incidental to or

connected with the foregoing”. Section 2, of the Act, defines land to include “interest in or right

over land but shall not include a mortgage or other charge “. Property is defined under the

section to include “land, and includes any interest or right over property, but shall not include a

pledge or other charge”.

Section 3 of the Lands Acquisition Act empowers the president to compulsorily acquire any

property of any description whenever he is of the opinion that it is desirable or expedient inthe

interests of the Republic to do so.

The section, and indeed the whole Act, is silent on the question of the purpose or purposes for

which the State may compulsorily acquire property. In contrast, the repealed Public Lands

Acquisition Act had a clear definition of what constituted public purpose on the basis of which

the Governor and later the President could compulsorily acquire land. Be that as it may, it has

been held by the High Court for Zambia that the fact that the Act is silent on the question of the

purpose or purposes for which the State may compulsorily acquire property upon payment of

compensation does not per se give the state a blanket right to compulsorily acquire property

without any cause or purpose. The purpose for compulsory acquisition must be a public one as

stated by the court in the case of Wise v. The Attorney General (1990/92) ZR 124. The

President’s discretionary powers must be exercised in good faith and not for ulterior motives.

Once the President has made the resolve to compulsorily acquire property under section 3, the

Minister of lands is required, under a prescribed form, to give notice of intention to acquire

property to the persons interested in the property. The Act under sections 5 to 9, lays down the
steps and formalities required to complete the process of acquisition. Sections 10 to 14 deal with

the issue of compensation. In 1992, section 12 of the Act was amended by Statutory Instrument

number 110 of that year so as to permit any assessment of compensation to take into account (by

deduction) any money used in developing the land which was donated by the Government and

any companies that did not certify that their contribution was specifically made for the use and

benefit of the registered owner. This amendment appears to have been made to target a property

known as the new UNIP Party Headquarters building owned by Zambia National Holdings

Limited the subsidiary company of UNIP (See the case of Zambia National Holdings and

Another v. The Attorney General (1993/94) ZR 115.)

Sections 15 to 16 deal with unutilized and undeveloped land as well as absent landlords. Sections

17 to 20 deal with issues of transfer of the compulsorily acquired property to the President.

Sections 21 to 24 deal with the issue of the Compensation Advisory Board established for the

purpose of advising and assisting the Minister in the assessment of any compensation payable

under the Act. (You can read the case ofVan Blerk v. Attorney General, Supreme Court

AppealNo. 138 of 2002 (unreported)in order to have an insight of the procedures to be followed

in theprocess of Compulsory Acquisition as provided for in the Act).

Unit summary

In this unit you have learnt about the Power of Eminent Domain and the Historical Background

to Compulsory Acquisition of Property in Zambia. You have also learnt about the 1969

Referendum and the Constitutional basis for Compulsory Acquisition of property in Zambia.

You have further learnt about the salient provisions of the Land Acquisition Act.
Activity:

 Briefly discuss what is meant by the Power of Eminent Domain.

 Briefly explain the historical background to Compulsory Acquisition of Property in

Zambia.

 Outline the major problems caused by Section 18 of the Independence Constitution.

 Clearly state the significance of the 1969 Referendum to Zambia’s land reforms

 Outline the process of Compulsory Acquisition as provided for in Lands Acquisition Act.

LAND LAW MODULE

LLB 206

Edited by: Natasha Chirwa Lungu

LLB (UNZA), AHCZ, LLM (Uppsala
University, Sweden)
0974979213/0966977760/0950460064
chirwanatasha@[Link]