LAND LAW MODULE- MR B.

MPALO
INTRODUCTION:

Land law is also known as the law of property; the term real property is
derived from the old remedy for dispossession of land.

In general all interests in land are real property with exceptions of leaseholds
(terms of years) which are described as personalty. Leaseholds are therefore
personalty in law; however despite being personalty, leaseholds have long been
recognized as interests in land. It‟s for that reason that they are termed as chattels
real.

WHAT IS LAND LAW ABOUT?

Land law is concerned with various aspects of ownership of land and with their
interests in land held by persons other than the owner. Such interests could be
mortgages, leases, licenses, easements or profits.
Land law also deals with the rights and liabilities of land owners.

WHAT DOES THE TERM OWNERSHIP IMPLY IN LAND LAW?

It is important to understand that the term ownership has various aspects in relation
to land or property in general. The most important aspect of ownership is the title
to the land. Title signifies the legal right to land thus an owner of land who has the
maximum legal rights over the land. The legal rights are incidents of ownership.

Incidents of ownership include the following rights:

i. The right to possess
ii. The right to use
iii. The right to manage
iv. The right to income
v. the right to capital
vi. the right to security
vii.the right t transmissibility

THE RIGHT TO POSSESS

This means the rights to have exclusive physical control of the thing or to have
such control as the thing or to have such control as the thing admits. This right has
two aspects:-
 1) the right to be put in exclusive control of the thing
2) the right to remain in control

THE RIGHT TO USE

This includes the right to manage but in a narrow sense. The right to use refers to
the owner‟s right of enjoyment of the thing

THE RIGHT TO MANAGE

This is the right to decide how and by whom the thing owned shall be used. This
right entails a cluster of powers such as:-
1) power of leasing
2) power of contracting
3) power to admit others to land
4) power to admit others to use ones land

THE RIGHT TO INCOME

The leasing of the thing may be regarded as the simplest way of deriving
income from it. Income may be derived fro the property by way of rent or
profits.

THE RIGHT TO CAPITAL

His consists of the owner‟s right to alienate the thing and the liberty to
consume waste or destroy the whole or part of it. However the most important
aspect of this right is the power of alienation.

THE RIGHT TO SECURITY

This right entails that an owner of property should be able to look forward to
remaining an owner indefinitely. This is what is called the right to security.
Legally it has the effect of giving immunity from expropriation. However the
right to security is subject to common law and statutory restriction e.g. under he
lands acquisition act, the president has a right to compulsorily acquire land from
private citizen.

THE RIGHT TO TRANSIMISIBILITY

This right entails that the owner of the property should be able to transmit
interest in land to his successors .

SOURCES OF LAND LAW IN ZAMBIA

The main sources of land law in Zambia are;

 1. STATUTES ENACTED BY THE ZAMBAN LEGISLATURE, THE
MAIN ONES BEING ;
a. The constitution
b. The lands act 1995 cap 84
c. The rent act 1972 cap 20
d. The landlord and tenants (business premises) act 1971 cap 193
e. The lands acquisition act cap 189
f. The housing (statutory and improvement areas) act 1974 cap
194
g. The town and country planning act
h. The land and deeds registry act cap 185
i. The mines and minerals act cap 213
j. Land survey act
k. The public health act cap 295.
2. THE COMMON LAW OF ENGLAND PRICILES OF EQUITY
3. STATUTES THAT WERE IN FORCE IN ENGLAND ON 11TH
AUGUST 1911 such as the statute of fraud 1677 (ENGLISH LAW
EXTENT OF APPLCATION ACT CAP 11
4. ANY ENGLISH ACT THAT HAS BEEN EXTENDED pursuant to
the British act (extent of application) CAP 10
5. CUSTOMARY LAW.

BASIC DOCTRINES OF ENGLISH LAW

There are two basic doctrines of the English land law, these are;
Tenures and estates, these two basic doctrines of English land law are crucial to
the understanding of the Zambian land law. This is because the Zambian land law
concepts especially those under statutory tenure are derived from the English law
system.

TENURE AND ESTATES

The basis of English land law is that all land in England is owned by the crown, a
small part is in the crowns actual occupation, the rest is occupied by tenants
holding either directly or indirectly from the crown. No land in England is allodia
i.e. owned by a subject and not held of some lord.
This position can be traced from the Norman Conquest. William 1 regarded
the whole of England as his by conquest. To reward his followers and those who
submitted to him, he granted and confirmed certain lands to be held of him as
overlord. These lands were granted not by way of an out and out transfer but to be
held from the crown upon certain conditions. These conditions came in form of
services which were required to be rendered by the tenants to the crown. For
example land could be granted to X on the terms that he did homage and provided
armed horsemen to fight for the crown for forty days in each year.
Similarly land could be granted to Y on condition that he supported the
king‟s train in his coronation. X and Y might each in turn grant land to other
persons to hold for them in return for services and these others might repeat the
process.
These services or conditions became to a certain extent standardized, the services
and conditions upon which land was held is termed as tenures. Thus the word
tenure answers the question upon what conditions or terms is the land held.
The tenures which existed were divided into two main forms:
i. Free tenures
ii. Unfree tenures.

FREE TENURE
There are three main classes of free tenures namely;
a. Tenures in chivalry (military tenure)
b. Tenures in socage
c. Spiritual tenure

TENURE IN CHIVALRY
There were two tenures in chivalry, grand sergeant and knight‟s services.
i. Grand sergeant
By tenure in grand sergeant, the king provided for his principle servants,
holders of high offices and places of honor. The tenant was bound to
perform in person some service for the king of an honorable nature such
as carrying the banner, leading his army, or being his chamberlain. Grand
sergeant was confined to tenants in chief thus land could be held in grand
sergeant only by a tenant in chief.

ii. Knights service

By tenure in service, the lord provided for himself with an army. The tenant
who held by the tenure in knight service was obliged to provide to his lord with
a fixed number of fully armed horsemen for forty days in each year.

TENURE IN SOCAGE
Tenure in socage involved the provision of agriculture to the lord by the tenant.
Later in the years, tenure in socage was commuted to an annual rent.

SPIRITUAL TENURE
This tenure involved the provision of spiritual and divine services and land was
commonly granted to ecclesiastics.

UNFREE TENURE
Those were types of villain tenures and involved services of uncertain nature.
Unfree tenure was tenure of common laborer. A tenant under unfree tenure had no
seisni (the right to enable one to sue in his own name) and provided services that
were uncertain.

ESTATE
i. The term estate indicates some interest in land of some particular duration.
The doctrine of estate is concerned with the length of time for which land is
held. The doctrine of estate provides that a subject cannot own land but can
merely own an estate or an interest in it, authorizing him to hold it for some
period of time thus where as tenure answers the question of how is land
held? The term estate answers the question of how long?
Estates were divided into two classes.
1) Freehold estates and
2) Estates less than freeholds (leaseholds)

THE ESTATE OF FREEHOLD

There were three estates of freeholds
i. The fee simple
ii. Fee tail
iii. Life estate

Fee simple estate

This was an estate which endured for as long as the original tenant or any of his
heirs (blood relations and their heirs as well as collateral relatives) survived. This
is the largest estate in terms of duration and is as near to absolute ownership as it is
possible to achieve. The fee simple is virtually everlasting in that it continues as
long as the person entitled for the time being has heirs at his death.

The fee tail

This was an estate which continued for so long as the original tenant or any of his
linear descendants survived. It is an inheritable estate which lasts for as long as the
original grantee or any of his defendants live. The term fee tail, entails or entailed
interests are often used to describe the same estate thus if the original tenant died
leaving no relatives except a brother, a fee simple but a fee tail would come to an
end.
Life estate
As its name indicates, an estate for life is one limited from its inception to the life
of the tenant only. The name life estate usually denoted that the measuring life was
that of the tenant himself thus the estate subsisted as long as the grantee on their
death of the tenant, the estate determined and reverted to the overlord. Such a grant
would be as follows;-
“To A for life”
ESTATE PER OUTRE VIE.
An estate per outré vie was a species of life estate where the right to the estate
existed for the duration of someone else‟s life. The measuring life was that of some
other person e.g. To A so long as B lives.

ESTATE LESS THAN FREEHOLD (LEASEHOLD)

The leasehold estate or lease as we know it today was originally not recognized as
an interest in land. The three estates of freeholds that is fee simple, fee tail and life
estate were the only estates recognized and protected at common law. Leaseholds
or terms of years grew up outside this system estate. Originally they were not
regarded as property but as personal contracts only binding on the parties.
Leaseholds were only brought into the estate system in the 16th century by which
time they were recognized as legal estates and were fully protected by common
law. Leaseholds have long been denominated as estates less than freeholds and in
theory they are inferior. Estates less than freeholds now comprise of various forms
of leaseholds including;-
a) A lease for a fixed term of certain duration e.g. a lease for 3months, 100
years or 99 years.
b) A lease for the duration of which is capable of being rendered certain e.g. a
grant of tenancy to X from year to year.
c) A lease for an uncertain period of uncertain duration. They were two types
of leases this category
1) TENANCY AT WILL
2) TENANCY AT SUFFERENCE.
A tenancy at will is a tenancy which will continue indefinite or may be
determined at either party at anytime.
Tenancy at sufferance arises where a tenancy has been terminated but the tenant
holds over i.e. (remains in possession) without the landlord‟s ascent or descent.

OWNERSHIP OF LAND AND ITS LIMITATIONS

As discussed there is no such thing as absolute ownership of land under English
law. All land in England is held direct or indirect from the crown on one of the
several tenures. . In Zambia all land is vested
in the president and is held by him in perpetuity for and on behalf of the people of
Zambia. (Section 3(1).
Individuals occupying land own estates, rights and interests in land and not
land itself. They own rights to occupy and use land for a defined period of time.
The term “owner” has not except in common parlance replaced the term “holder”
of simple.

OWNERSHIP AT COMMON LAW

At common law the owner or the holder of the largest estate, the fee simple had
extensive powers of control, disposition and use and enjoyment of land in which
his estates subsisted. In physical terms he may enjoy everything on, beneath and
above the land. The maxim cujus est solum, ejus, est usque et ad inferos (he
who owns the soil is presumed to own everything up to the sky and down to
the center of the earth).
This prima fascie includes all mines and minerals and any chattel not the property
of any known person which is found under or attached to the land.

EXAMINATION QUESTION
Explain this principle in Zambian land law. (cujus est solum, ejus, est usque et
ad inferos).

COMMON LAW LIMITATIONS ON OWNERSHIP

1. liability in tort (the rule in Ryland vs. Fletcher)
2. gold and silver (attorney general vs. Morgan)
3. treasure trove
4. wild animals
5. water rights
6. Air space (Lord Bernstein of Leigh vs. sky views and general limited
(1972) (2) AELR P. 902.

STATUTORY LIMITATIONS ON OWNERSHIP, USE AND EJOYMENT

OF LAND IN ZAMBIA.
A number of statutes in Zambia have eroded away certain rights of an owner of
land at common law. The statutory restriction of ownership and enjoyment of land
are imposed by the following statutes:-
1. LANDS ACT
2. MINES AND MINERALS ACT
3. THE WATER ACT
4. THE TOWN AND COUNTRY PLANNING ACT
5. THE PUBLIC HEALTH ACT (building regulator)
6. ZAMBIA WIDLIFE ACT
7. THE RENT ACT AND LANDLORD AND TENANT (business
premises) ACT
8. THE LANDS ACQUISITION ACT
9. THE FOREST ACT.

FIXTURES

In land law means not only the ground but also subsoil and all structures and
objects such as buildings, trees and minerals standing beneath or below it. This
concept of land is often expressed in the Latin maxim QUIC QUID
PLANTANTA 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 the land so as to become part of the land. If a chattel has not become
part of the land it is known as a fitting.

TEST 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.
1. THE DEGREE OF ANNEXATION
2. THE PURPOSE OF ANEXATION

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 the land. Where the chattel rests on its own weight on
the land if reputable presumption is not prima fascie a fixture however this may be
rebutted when it is clear that the object was intended as a permanent improvement
on the land. The more securely an object is affixed and the more damage that will
be caused by its removal, the more likely it is that the object was intended to form
a permanent part of the land.
(Spyer vs. philipson (1931) 2 CH p. 183)

THE PURPOSE OF ANNEXATION

Where the purpose of attaching the 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 temporally improvement or to enjoy a chattel as a chattel. If the
intention was to effect a permanent improvement to the land then a chattel is a
fixture. On the other hand if the intention was merely to effect a temporally
improvement then a 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.
(Leigh vs. Taylor (1902) AELR)
(Vaudeville electric cinema vs. muriot (1925) AC 2 CH P.74)

COMMON 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 exceptions to this rule.
A tenant may remove certain fixtures during the lease or within a reasonable time.
Such fixtures are called tenancy fixtures. These include
TRADE FIXTURES
Fixtures attached to the land by the tenant for the purposed of carrying on a trade
of business are at common law removed by the tenant at any time during the course
of the lease or at anytime thereafter. Such fixtures may include such things as fuel
pumps.
(Smith vs. city petroleum co. limited (1940) 1 EALR p. 260

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 ornament and domestic use. These are chattels which can be
removed without causing substantial damage to the building.

LEACES AND LICENSES

LEACE: is an estate of a defined duration.

ESTATE: is an interest in land.

A lease is an interest or an estate in land of a defined duration. The terms leace,

terms of years, demise and tenancy are often used interchangeably though a
tenancy is normally of a shorter duration. The landlord is often referred to as the
grantor or lessor and tenants are as grantee or lessee.
A license is permission from the owner of the land given to another person
who may or may not own land to use or to do some act on the land which would be
otherwise unlawful. A license prevents what would be otherwise a tort of trespass.
In general licenses lack the qualities of being interest in land namely they are not
transferable and will not be enforced against the third party.
A leace on the other hand is a proprietary interest in land. It is transferable
and capable of binding third parties.
A leace apart from being a proprietary interest in land, it is also a contract in
that it is an agreement between the landlord and the tenant. As a contract a leace is
subject to the principles of contract law. A leace however is more than a contract
between the two parties in that as an interest in land, it is capable of binding a third
party.
CHARACTERISTICS OF A LEACE
A leace will be valid if two requirements have been satisfied. These are:-
1) Certainty of duration
2) Exclusive possession

CERTAINTY OF DURATION
In general a leace must have a certain beginning and a certain ending. The interest
granted by the leace to the tenant must be for a defined and certain period of time.
This means not only that the leace must start at a defined moment but also that the
length of the term granted must be certain. At the commencement of the leace, it
must be possible to define exact the maximum duration of the leace, even if it is
possible to end the leace at some time before this. Any leace or intended leace that
fails to satisfy this requirement as to certainty of duration is void because it does
not amount to a term “certain”.
(Lace vs. chandler (1944) 1 KB p. 368)

(William jacks and co. (z) ltd vs. O’Connor (in his capacity as register of lands
constructions and investment holdings ltd (1967) ZLR p. 109).
It was held that an alleged agreement for lease which contains no
commencement date is not,in fact,an agreement for a lease, nor does it
resemble noe sufficiently to be accepted as purporting to be an agreement
for lease.

EXCLUSIVE POSSESSION
The right to exclusive possession is the right to exclude all others from the
premises including the landlord. If such a right is not conferred upon a grantee,
then it is likely that he holds merely which is a personal, revocable interest. If the
grantor remains in general control of the premises, a license is likely to be infarred.
For example in the case of (upper vs. parncliff investment ltd (1964) 1 WLR p.
1064.
The defendants carried on business of providing rooms for residential occupation
at 15 cents a day or 5 pounds a week. The building had been or was still described
on the outside as a hotel. The house was divided into 17 rooms. No meals were
provided but the charges covered certain services in the individual rooms that is to
say daily cleaning and making of bed, weekly supply of fresh linen and communal
services such as electricity and cleaning of staircases and part of the building used
in common. The defendants reserved to themselves a general right of entry to the
rooms and entered once every month to clear out the coin box of the gas meter.
The plaintiff’s room was broken into and all her belongings were stolen. In an
action by the plaintiff claiming damages against the defendant for negligence, the
court found that it was common ground that if the plaintiff were a tenant of the
room, defendant were under no obligation to exercise care in relation to her
property but that if her status were that of a licensee, they were under an
obligation to use reasonable care to see that she suffered no loss.
HELD: that the plaintiff was a licensee not a tenant having regard to among
other factors that the defendant reserved the right to enter the room so that she
could not have exclusive possession of it

The granting of exclusive possession is essential to the creation of a lease

However even if exclusive possession is granted, it does not automatically follow
that the grantee is a lease or tenant. Grant of exclusive possession is necessary but
not sufficient. In certain exceptional situations, an occupier of land will have
exclusive possession property but for special reasons no lease will exist. Examples
include situations where occupation is on charity, friendship or family arrangement
and indeed by virtue of employment.

IMPLIED OBLIGATIONS OF LANDLORD AND TENANT

The rights and duties of the landlord and tenant are normally determined by the
provisions of the leace itself. Where the leace is silent, certain covenants are
implied by common law. Some covenants implied by common law are as follows:-
1) Covenant for quiet enjoyment
The tenant has the right to be put into possession at the commencement of
the term and he is entitled to damages if his enjoyment is subsequently
interfered by the acts of the landlord. The covenant gives the tenant the right
to be put into possession of the whole premises demised and to recover
damages from the landlord if the landlord or any other person to whom the
covenant extends physically interferes with the tenant‟s interference of the
land. In Kenny vs. preen (1963) 1QB P. 499 the landlord was liable under
the covenant for trying to drive the tenant by persistent threats or violent
behavior.
In operer vs. vandiyah (1953) 1 WLR p. 672. The landlord was liable
under the covenant for inflicting physical discomfort on the tenant by cutting
off his water, gas and electricity and depriving him of proper washing
facilities.

2) Not to derogate from the grant

A landlord may be restrained from acting to the detriment of the tenant by
the application of the principle that a grantor may not derogate from his
grant. The landlord must not frustrate the use of the land for the purpose for
which it was let. In order to constitute a derogation from the grant, there
must be some act rendering the premises substantially less fit for the
purposes for which they were let e.g. in Aldine vs. latimer Clark, the land
 was leaced to a timber merchant for use for his business. The landlord was
restrained from building from the adjoining land so as to interrupt the flow
of air to sheds used for drying timber.

3) Repair and fitness for habitation

There is no general implied undertaking at common law that the landlord
guarantees that the premises are fit for habitation or for any particular
purposes or even that they are not dangerous. Nevertheless, certain
exceptions should be noted.
a) Furnished dwellings
These must be reasonably fit for human habitation when let.
b) Blocks of flats
If the landlord retains control of the means of access such as lifts and
staircases then he is under an obligation to keep them I state of repair

IMPLIED OBLIGATION AND RIGHT OF TENANT.

1. To pay rent.
2. To allow the landlord to view the premises if he is liable to repair.
3. A tenant has the implied rights to emblements (to reap crops e.g.
vegetables, maize, he has sown) this applies to annual crops artificially
produced and actually growing at the determination of the tenancy.
4. Obligation not to commit waste.

LICENSES

A license was defined in Thomas vs. sorrel (1673) as a permission to use land
belonging to another which without such permission would amount to trespass.
The tradition view is that licenses are not proprietary in nature, in other words a
license is not an interest in land but rather a right over land that is personal to the
parties that created it i.e. licensor and licensee. Licenses may be classified
according to the functions they serve, the circumstances in which they arise or the
way in which they are created.
TYPES OF LICENSES
There are four (4) types of licenses namely:-
1. bare licenses
2. contractual license
3. license coupled with interest
 4. Estoppels licenses or licenses protected by estoppels.

BARE LICENCE
A bare license is permission to enter upon and or use the land given voluntarily by
the landowner who receives nothing in return. The giving of the licence is
gratuitous in that it is not supported by consideration moving from the licencee.
There is no contract between the parties merely a bare permission to do that which
would otherwise be a trespass. The license is revocable at anytime provided
reasonable notice is provided and the licensee has no claim in damages or specific
performance should this happen
CONTRACTUAL LICENCE
This arises where a licence is granted under the terms of a contract and valuable
consideration has been given e.g. admission to a cinema or sports grounds in return
for payment. In principle, contractual licenses are similar to bare licence save only
that contractual licences are granted to the licencee in return for valuable
consideration. Contractual licencees are governed by the ordinary rules of the law
of contract. Since these licences are founded in contract, both the licencer ad the
licencee may rely on the normal remedies for breach of contract in the event of
failure to carry out its items.
Winter garden Theater London ltd vs. millennium productions ltd (1947)
AELR p. 331
Verrall vs. great Yarmouth BC (1980) 1 AELR p. 830
Hurst vs. picture theatre ltd (1915) 1 KB
King vs. David Allen and sons bill postity (1916) 2 AC p. 54
Errington v errinton (1952) 1 AELR p. 149
Binions vs Evans (1972) 2 ALLER p. 70
Turner tanner vs tanner (1975) 3 ALLER p. 776

LICENCE COUPLED WITH INTEREST

This arises where a licence is granted ancillary to the granting of some proprietary
right on the land or chattel on the land. The licence coupled with a grant enables a
person to exercise some other right connected with land usually a profit apendre.
The right to fish hunt animals or cut timber may all require an attendant permission
to enter the land. The licence will bind third parties to the extent that they are
bound by the interest coupled with the licence;
JAMES JONES AND SON LTD VS THE EARL OF TANERVILLE (1909)
2CH p. 440. At common law such a licence is irrevocable

LICENCE PROTECTED BY ESTOPPEL

The basic principle of the doctrine is that a person who makes by words or conduct
a representing to another intending that other to act on it and the other does so to
his detriment e.g. by expenditure or giving up present accommodation, will not be
allowed subsequently to take a position inconsistent with representation. If an
owner of land permits promises or acquiesces to the use of land by another, he may
be estopped from denying that person right to use the land
CHILUFYA VS CITY COUNCL OF KTWE (1916) ZR p. 113
STREET VS MOUNTFORD (1985) 2 ALLER p. 289
NIP LTD VS ZAMBIA STATE INSURANCE CO-OPERATION (1983/1984)
ZR p. 144

CO-OWNERSHIP

INTRODUCTION
Ownership of land may be vested in a single person or in two or more persons.
Concurrent or co-ownership of property describes the simultaneous enjoyment of
land by two or more persons. The law of co-ownership operates whenever two or
more people enjoy the rights of ownership of property or land at the same time.
The co-owners may be husband and wife, business partners or friends.
TYPES OF CO-OWNERSHIPS
There were four forms of co-ownerships in land at common law. These are joint
tenancy, tenancy in common, tenancy by entireties and coparcenaries
JOINT TENANCY
If a co-owned land is subject to a joint tenancy, each co-owner is treated as being
entitled to the whole land. There are no distinct shares and no single owner can
claim any greater rights over any apart of the land than another. Although as
between they, joint tenants have separate rights against everyone else. They are in
a position of a single owner. Each joint tenant owns the total interest in the land
along with the other joint tenants.

FEATURES OF A JOINT TENANCY

1. the right of survivorship (JUS ACCRESCENDI)
By virtue of the principle of jus accrescendi, if one tenant dies during the
 existence of the joint tenancy, their interest in the joint tenancy
automatically passes to the remaining joint tenants. The right of survivorship
takes precedence over any attempted transfer by will of the share of the dead
joint tenant because there is no such share to transfer.
2. the four unities
Before a joint tenancy can exist, the four unities must be present and it is the
presence or absence of these factors that enable us to distinguish a joint
tenancy from a tenancy in common. The four unities of joint tenancy are the
unities of possession, interest, title and time.

a) Unity of possession
This unity applies to all forms of ownership, the unity of possession
means that each joint tenant is entitled to the whole of the land. Unity
of possession means that there may be no physical division of the land
and no restriction of any joint tenant use of each and every part of the
land and this includes the right to participate fully in the fruit of
possession such receipt of rents and profits derived from the land.
b) The unity of interest
The unity of interest means that each joint tenant‟s interest in the
property must be identical in extent nature and duration. This means
that no joint tenancy is possible between a fee simple owner and a
lease holder. Different qualities of right are inconsistent with the
nature of a joint tenancy as a single title jointly owned.

c) The unity of title

The unity of title means that each joint tenant must derive their title
(i.e. ownership) from the same document or act. All the joint tenants
must have derived their title from the same document or conveyance.
d) The unity of time
The unity of time means that the interest of each joint tenant must
arise or vest at the same time as befitting their ownership of a single
title.

TENANCY IN COMMON
A tenancy in common differs from a joint tenancy in the following ways; it arise
from a surveyor from a joint tenancy

a. Each owner has a distinct and quantifiable share in the land. Tenants in
common hold undivided shares i.e. to say they have distinct shares which
 have not yet been divided. In other word a tenant in common can point to
a precise share of ownership of land. E.g. one half, three quarters etc
b. There is no jus acrasendi or right of survivorship the size of the tenant in
common shares is unaffected by the death of the other tenant in common
whose shares passes under his will or intestacy.
c. Of the four unities under a joint tenancy only the unit of possession is
essential a tenancy in common may come about through the severance of
the of the joint tenancy.

CO-PARCENARY
Co- parcenary as a form of co-ownership arose by the operation of law on the
death of the holder of the fee tail leaving daughters and no issue through the male
line. In such a situation the daughters would own and hold the land as
co-parceners. This form of co-ownership resembled a tenancy in common in that
there was no right of survivorship and that the interest of co-parceners could be of
different sizes. It differed from a joint tenancy in that it only rose by operation of
law.

TENANCY BY ENTITIES

A tenancy by entities arose where land was conveyed to a husband and wife in a
way that could otherwise create a joint tenancy. It resembled a joint tenancy in that
there was a right or survivorship. It was distinguished from a joint tenancy in that
neither spouse could alienate his or her own interest without the agreement of the
other.

PROVISIONS OF THE LANDS AND DEEDS REGISTRY ACT IN

RELATION TO CO-OWNERSHIP
Section 51 (1) (2) (3)

MORTGAGES
A mortgage was defined by Lord Lindley in SANTLEY V WILDE (1899) as a
conveyance of land or an assignment of chattels as security for the payment of
a debt or a discharge of some other obligations for which it is given. The
security is redeemable on the payment or discharge of some other obligation not
withstanding any provision to the contrary.
Section 65 of the lands and deeds registry act cap 185 of the laws of Zambia
has altered the common law nature of a mortgage as defined by lord lindley in
Santley vs. wilde. Section 65 (1) provides that a mortgage is simply to operate as a
security and not a transfer or leace of the estate or interest thereby mortgaged.
MORTGAGOR is the borrower and the Mortgagee is the lender it can be seen
that it is a charge or a relationship between the landowern and the lender

The purpose of the mortgage is to enable the lender (mortgagee) to take the
property in whole or in partial satisfaction of the debt if the borrower (mortgager)
fails to repay the loan. A mortgage like a leace originates into a contract ( it is also
a propritary interest in land); the mortgager will enter into a binding contract with
the mortgagee whereby a capital sum will be lent on the security of the property
owned by the mortgager. It‟s a contract the parties are at liberty to stipulate
whatever term they wish for the payment of the loan, the rate of interest and so
forth.
Although a mortgage originates into a contract it also like a leace constitutes
an interest in land. The mortgagee obtains an estate in the land and the borrower
retains an equity of redemption which constitutes his residential rights in the
property.

DEVELOPMENT OF MORTGAGES
1. mortgages were not initially recognized at common law.
2. early mortgages took the form of leace or conveyance of estate to the lender
who took possession of the property. (but section 65 of cap 185)
3. at common law the loan could only be repaid on a specified day called the
legal date of redemption.
4. failure to repay the loan on the date stipulated on the deed meant that the
borrower lost all his rights over the property.
5. equity came in to mitigate the harshness of common law by recognizing the
rights of the borrower to repay the loan on the actual date of redemption or
on a later date. This right was called the equity of redemption
6. equity gave the borrower an equitable right to redeem, which allowed him
to redeem the property even when the actual date to redeem the property had
passed.
7. the right was recognized as an interest in property itself which could be
leased, sold, or left to someone else by will.

TYPES OF MORTGAGES
There are two types of mortgages namely;
Legal mortgages and
Equitable mortgages.
LEGAL MORTGAGE
A legal mortgage is created in respect of a legal estate by deed of legal mortgage or
charge. The mortgage must comply with all the legal formalities required to
execute a deed that is it must be registered by the ministry of lands in the deeds and
registry. If it is a company executing a deed it must also be registered with the
registrar of companies. A legal mortgage is normally executed by a person who has
a legal estate in the property.

EQUITABLE MORTGAGES
If a mortgagee receives merely an equitable interest in land, the mortgage is said to
be equitable. An equitable mortgage may be created in the following ways;
a) By deposit of title deeds
A deposit of title deeds creates an equitable mortgage provided it could be
shown that the land was intended to be treated as security for a loan.
b) Mortgage of an equitable interest
If the potential mortgagor only has an equitable interest in land opposed to a
legal estate it follows necessarily that any mortgage of that equitable interest
will itself be equitable e.g. beneficiaries under a trust have mere equitable
interest and can only create equitable mortgage.
c)Failue to create a legal mortgage fells into an equitable

THE RIGHTS OF A MORTGAGOR

The right to redeem

The primary right enjoyed by the mortgagor is the right to redeem the mortgage or
repayment of the loan and payment of any interest provided for by the mortgage

THE RIGHT TO REDEEM AT COMMON LAW

At common law the right to redeem is a matter of contract. The mortgagor can
redeem on the date or dates in the manner provided for by the mortgage thus
should the agreement provide that the mortgage redeem on a particular date, the
mortgagee has at law the right to redeem on that date only. The legal rules do not
allow him to insist on redeeming the mortgage either before or after the contractual
date.
KREGLINGER VS NEW PENTAGONIA MEAT AND COLD STORAGE
CO. LTD (1914) AP P. 25

At common if he did not pay on the contractual date, the mortgager forfeited the
land to the mortgagee and could still be sued on contract for the repayment of debt.

RIGHT TO REDEEM IN EQUITY

Equity came in with a different approach on the right to redeem. This was mainly
because there were examples of mortgagees absenting themselves so that it became
impossible for the mortgager to repay on the contractual date. As the purpose of
the agreement was merely to provide the mortgagee security for the loan, equity
took the view that the mortgagee should not be able to object redemption thus
equity allowed the mortgager to redeem even after the date fixed by agreement for
repayment has passed. Salt v marques of northampton
1892 AC

EQUITY OF REDEMTION

The mortgager normally returns his legal estate in the land but subject to the rights
of the mortgagee. In equity the mortgager is described as owing the equity of
redemption. This must be distinguished from the equitable right to redeem. The
equity of redemption is the mortgager `s equitable interest in the property and it
consists of the sum total of the mortgagor‟s rights in relation to the land including
inter alias the right to redeem. The equity of redemption is therefore an interest in
land which can be dealt with like any other equitable interest in land.

It is there from the beginning while the right to redeem in equity comes after the
legal date of redeemtion
It is the sum total of all the rigths of the mortgagor.

EQUITABLE PRINCIPLES APPLICBLE TO MORTGAGE

TRASACTIONS

G and C kreglinger v new patagonia

Lord parker said in 2 maxims (once a mortgage always a mortgage) .
( A mortgage cannot be made irredemeable )
 1) No clogs/caeviet (restrictions) on the equity of redemption.
Equity is so protective of the mortgagor‟s equity of redemption that it would not
tolerate any arrangement which either prevents or deters the mortgagor from
exercising his right to redeem. Similarly any burden imposed by the mortgagee
on the mortgaged property which may continue after the date of redemption are
generally with disfavor, They derogate from the principle that once a mortgage
always a mortgage. (A mortgage should provide security only and on
redemption the mortgagor should recover his property without further
fetter).
Equity‟s protection of the mortgagor is summed up in the rule that there
must be no cloges (restrictions) on the equity of redemption. This rule is applied
to a number of situations including the following;
1) Prevention of redemption
Any provisions in the mortgage which would operate to prevent the
mortgagor from redeeming will be disregarded by equity and will be void
thus a mortgagee cannot include in a mortgage a term that should a
specific event occur, the land would become his absolutely thus the
maxim of equity that “once a mortgage always a mortgage.
SAMUEL VS JAIRAH TIMBER AND WOOD PAVING CO.
LTD (1904) A.C p. 323.

2) Postponement of redemption
Any provision in the mortgage which attempts to postpone redemption to
such an extent that the right to redeem becomes illusory may also be
rendered void. In FAIRCOUGH VS SWAN BREWERY CO. LTD
(1912) A.C p 565 A lease of seventeen and half years was
mortgaged on condition which prevented its redemption until six weeks
before the end of the term. This was held to make the equitable right to
redeem illusory and therefore void.

3) Corrateral advantages
A covenant is corrateral where an obligation is placed on the mortgagor
which is independent of that of the performance of which the land is
charged. Such clauses are objectionable only if they are unconscionable
or if they constitute
a cloge on the right to redeem in KNOCKS VS RICE (1902) A.C p.2
a clause that a mortgagor will not sell any beer other than those of the
mortgagee in his public house for 26 years of the mortgagor’s lease was
held to be oppressive and void.
Biggs v hoddnotes 1898 307 were on simialr facts a clause for five years
 held that it was vaild

THE RIGHTS OF THE MORTGAGEE

Where a mortgagor defaults under the terms of the mortgage, the mortgagee is
given various remedies namely;
1. SALE
2. FORECLOSURE
3. POSSESSION
4. APPOINTMENT OF THE RECEIVER
5. SUING ON PERSONAL COVENANT

The mortgagee is not bound to select one of these remedies and pursue that and no
other; subject to his not recovering more than is due to him; he may employ any or
all of the remedies to enforce payment. S. BRIAN MUSONDA VS HYPER
FOOD PRODUCT LTD AND TWO OTHERS (1999) ZR p. 24

REMEDY OF SALE
The mortgagee‟s remedy of sale may be given expressly by the mortgage deed in
which case its exercise will be governed by the terms of the deed. There is also a
statutory power of sale given under conveyance and law of property act (1881)
as well as the lands and deeds registry Act. Every mortgage whose provisions
show no contrary intentions has a power of sale provided it is a mortgage under
deed and the mortgage money is due.
The statutory power of sale is exercisable without any order of the court
being required. The power of sale will arise if the mortgager fails to repay the loan
and the mortgagee seeks to recover the principle amount lent. When exercising the
right this mortgagee is under a legal duty to use reasonable care and skill to obtain
the best possible price which the circumstances of the case permits. STANDARD
CHARTARD BANK VS WALKER (1982) 3 AER p. 938
A mortgagee cannot sale to himself. Further the mortgagee must obtain the true
market value.The mortgagee has no obligation to wait he can sale there and then ie
he must take care in sale.
 FORELOSURE
This is remedy whereby the mortgager‟s equitable right to redeem is extinguished
and the mortgagee becomes owner of the property both at law and equity.
Foreclosure is the confiscation of the mortgager‟s interest in the property. In order
to exercise this right a court order is necessary.decree naisai and dercee absolute.

POSSESSION
At common law the mortgagee‟s right to take possession was automatic because
the mortgage gives legal estate in possession and is exercisable even if the
mortgager is not in default. A mortgagee will not normally exercise this right until
some default has occurred which will enable him to exercise his power. Once he
takes possession, a mortgagee will be liable to account (unless taking of
possession is to enable him to affect the sale) he must account not only for what
he has received but also for what he ought to have receive.

APPOINTMENT OF RECEIVER
This is the appointment of a person with management powers who may collect rent
and profits and although appointed by the mortgagee is infant the agent of the
mortgager. Such a remedy is mostly commonly used where the mortgager has
leased the property and rents and profits can therefore be intercepted.
SUING ON A PERSONAL COVENANT
A mortgagee can sue for money lent. This is like any other contract where money
is lent and there is default.

EASEMENTS (SERVITUDES)
Easements and profits collectively known as servitudes are interests entitling the
owner to exercise certain rights over land of another.
Easements may be defined as rights, annexed for land entitling its owner
(dominant owner) to do or prevent the doing of something on another person‟s
piece of land (servient tenement)
Examples of common easements include;
Right to way
Light
Support of a building and water.

A PROFIT A PENDRE has been described as the right to take something on

another person‟s land. The thing taken must at the time of taking be susceptible of
(prove) ownership. Examples of a profit will include a profit of priscary which
entitles another person to enter another land and fish, profit in the soil, giving the
right to take sand, gravel or coal.
The main distinction an easement ad a profit is that the latter entitles the
owner to take away something capable of ownership from the servient land
while an easement does not. An easement also differs from a profit in that profit
may exist in “gross” (independent of ownership of land or belonging to a person
in his own right, not annexed to ownership of land). While an easement must
always be appurtenant i.e. attached to ownership to a particular land. Further,
the owner of the profit enjoys possesory right rights over the servient tenement and
the owner may bring an action for trespass for their infringement.

CHARACTERISTICS OF AN EASEMENT
These characteristics are set out as in the case of: RE ELLEN BOROUGH
PARK (1953) 3 ALLER 667. The question was whether the surrounding owners
of the white gross estate, which included Ellen Borough Park, had lost a legal
right for which they would be entitled to be compensated. In this case Ellen
Borough Park was supposed to be used in common for the benefit of the
surrounding plots on payment of fair and just proposition of the costs, charges and
expenses of keeping in good order and condition and of the said pleasure ground.
However during the Second World War, the park was requisitioned and the war
office subsequently paid money in request compensation rental and on account of
dilapidation.
HELD: the right of enjoyment was an easement appurtenant to the plots bought by
original purchasers and the plaintiff was entitled to compensation.

They include the following;

1) THERE MUST BE A DOMINANT AND A SERVIENT TENEMENT.
For a right to exist or quality to an easement there must be a dominant owner
and servient tenement. Thus every easement involves two separate pieces of
land. This is because easements are rights which exists for the benefit of one
piece of land and exercised over another. There must be land that is
benefiting from the exercise of the right (dominant tenement) and land that
is burdened (servient tenement). In technical terms it is said that an easement
cannot exist in gross but only appurtement annexed to land.

2) THE DOMINANT AND THE SERVIENT TENEMENT MUST NOT

BE OWNED OR OCCUPIED BY THE SAME PERSON
The dominant or servient tenement should be owned or occupied by two
different persons 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. An
 easement is essentially a right in allieno solo (in soil of another) and thus a
person cannot have an easement over his own land.

3) THE EASEMENT MUST ACCOMMODATE THE DOMINANT

TENEMENT
The easement must confer a benefit on dominant tenement and the benefit
must be to the dominant tenement itself and not personal to the land owner.
The general idea is that the alleged easement must benefit the use of land,
the value of land.
Case of: HILL VS TUPPER (1862) thus the easement must increase
the value of the dominant tenement or make it more saleable. It is important
to note that there must be connection or nexus between the users of
dominant tenement and of enjoyment of the right. However the two
tenements need not lie next to one another.

4) THE ESEMENT MUST BE CAPABLE OF FORMING THE

SUBJECT MATTER F THE GRANT
There are four elements to this requirement;
a) There must be capable grantor and grantee.
b) The easement must be capable of being described with certainty. A
vague or inexact right cannot exist as an easement e.g. there is no
easement of privacy or of a general flow of air over land.
c) The right must be within the general nature of the land capable of
existing as easement

CREATION OF EASEMENT
Easements and profits may be acquired or created by statute or by grant express or
implied or by prescription based on long use of presumed grant.
1. STATUTES
Easements may be granted by an act of parliament e.g. giving right in
respect of cables, pipes, sewers etc. (ZESCO STATUTORY BODIES)
2. BY EXPRESS GRANT OR RESERVATION
An easement is expressly granted when the owner of the potential servient
tenement grants or gives an easement over the land to the owner of what will
be dominant tenements. Under express reservation, the owner of the
potential tenement keeps i.e. reserves an easement over that land. This can
occur where land is owned by potential servient owners and then sale or
leases a piece of that land to another; he may include in that sale or lease a
grant of easement to the purchaser
 IMPLIED GRANT OR RESERVATION
An easement may be implied by the necessity. This is when the court is willing to
find an easement because without it the land cannot enjoy at all.
PRESUMED GRANT OR PRESCRIPTION
A presumed grant may be based on the doctrine of prescription at common law and
the right is founded on long, undisturbed possession or use.
At common law a grant was presumed if enjoyment dated from time
immemorial i.e. 1189 this was later converted to the test of living memory and
later on, on the users of 20 years or more has sufficed. Such a grant will not be
available if at any time since 1189 could not have existed.

TRUSTS
What is a trust?
Generally a trust is an arrangement whereby one person (called the settler)
conveys or transfers (the trust property) to another person called the trust (for the
benefit of another person called the cestiu qui trust known as a beneficiary)
A trust can be defined as an equitable obligation binding a person (trust) to
deal with property over which he has control for the benefit of persons called cesui
qui trust or beneficiaries ( of who he may himself be one) and anyone of who he
may enforce the obligation.
When trust has been created, the trust thus becomes the nominal owner of
the trust property but the real or beneficial owner is the cestiu qui trust or
alternatively if may be the trust is the legal owner and cestivi quic trust equitable
owner.
TYPES OF TRUST
TRUST FOR SALE-will impose an obligation to immediately sale the proceeds
e.g. interstate succession e.g. administrator.
DUTIES OF THE TRUST

ZAMBIAN LAND POLICY

BACKGROUND OF THE LAND TENURE SYSTEM IN ZAMBIA

Land tenure systems are not static. They respond to change, that political, social
and economical changes taking place in society. In Zambia there have been
changes in land tenure systems from the period before colonization to date.
Before the advent of colonialism in northern Rhodesia as Zambia was then
known, all land in the territory was administered in accordance with African
customary law. The customary land tenure system regulated the manner and way in
which the indigenous people would acquire, exercise and enjoy rights to land.
 In 1889 north western Rhodesia and north eastern Rhodesia protectorates
were created. In the same year the BSA was incorporated under a royal charter.
The company was entrusted with the administration of the two territories.
Although there were no provisions in the NE and NW Rhodesia orders in council,
the BSA Company claimed ownership of the land in the two territories. The
company imposed and introduced into the territory the English tenure systems.
In 1911, the two territories were amalgamated into northern Rhodesia and
the BSA Company continued to administer the territory until 1924, when the
British government took control under the leadership of Sir Hebert Stanley who
was appointed as the governor of the territory. Soon after the direct British rule in
1924 some policies of land reservation and what was popularly termed as land
apartheid were instituted. These policies were prompted because of the need to
attract European settler to come and settle in the territories. The settlers needed to
be assured of the land for their settlement and investment. The policies were the
first to effect changes in northern Rhodesia.
CREATION OF RESERVES AND CROWN LANDS
By 1928 native reserves and crown land order in council, the two categories of
land were created, namely the native reserves and crown land thus all land in the
territory other than other than land in Barotseland was divided into crown land and
native reserves. The effect of creating reserves was that land not so reserved and
outside reserves became crown land.
NATIVE RESERVES
These were essentially set aside for indigenous people. The indigenous people
were not allowed to enjoy customary rights over crown land thus the natives were
removed from crown land and consigned to native reserves. The natives could
acquire and exercise interest and rights in these lands in accordance with
customary law. Europeans could acquire land in native lands for a five year period
if this was considered by the governor to be in the interest of the people.
THE CROWN LANDS
All rights to the British sovereign in relation to the crown lands was vested and
made exercisable by the governor who was empowered to make grants and
dispositions of crown land to the white settlers. This land could only be alienated
to European settler. Customary law did not apply to this category of land. The
interests created in the crown land were those known to English law. These were
estates and tenures and leaseholds and freeholds.
THE NATIVE TRUST LAND
The policy of land reservation did not prove to be satisfactory. Many native
communities s objected to being removed from crown land many European
farmers found themselves unable to labor. Some of the reserves had insufficient
access to railway, others became overcrowded. Large areas of reserves proved to
be inhabitable owing to the absence of water supply or the presence of tsetse fly
and at the same time, many areas from which the native had been removed, were
left without inhabitants.
The unsatisfactory condition of the native reserves coupled with the fact that
European settlement in northern Rhodesia had proved to be very much smaller
than was at the time anticipated led to the creation of the native trust lands. The
colonial government found itself in an embarrassing situation of large tracts of an
alienated land in crown land while there was scramble for land in reserves thus in
1947 a third category of land was created through the native trust land order in
council. The land was called native trust land. This was carried out of the then
existing crown land and it was created for use or common benefit direct or indirect
of the native.

THE DIFFERENCE BETWEEN NATIVE RESERVES AND TRUST LAND

Basically the only difference between native reserves and trust lands lay in the
duration of alienable interests to a non native. In reserves the interest that could be
granted to a non native could not exceed five years where as in trust lands the
alienable interest to a non native called right of occupancy was 99 years.

THE POST INDEPENDENCE LAND POLICY

At independence in 1964, the three categories of land continued to exist. No
immediate and substantial changes were implemented. The only changes were
purely in nomenclature (names) e.g. under the orders, the word crown was replaced
by the word state and the word native presiding reserves and trust lands was
deleted.
STATUS OF LAND IN BAROTSELAND.
Barotseland had special status within the protectorate of N. Rhodesia. Barotseland
was not affected in matters affecting land or by the orders in council. The litunga
had all powers in matters of land pursuant to concessions entered into with the
BSA in 1909.
Shortly after independence, the Barotse agreement of 18th may 1944 was
signed between the litunga of the one part and the Zambian government on the
other part to retain the status quo in regard to the land issue in the unitary state of
Zambia.
The agreement was abrogated (breached) by the enactment of the western
province (land miscellaneous provisions) act 1970 which vested all land in western
province in the president and declared all land in the province to be a reserve.

THE 1975 LAND REFORMS (second republic)

The uncertainty in the country‟s land policy continued until 30th June 1975 when
President Kaunda in his address to the 6th UNIP national council at Mulungushi
rock of authority Kabwe announced far reaching changes to the country‟s land
tenure system. In his watershed speech Kaunda the following changes which were
to take effect immediately;
i. Farm land
All freehold titles to land and all land held by commercial farmers under
freehold title was converted to statutory leasehold for 100 years. Unutilized
tracts of farmland were immediately taken over by the state.
ii. Land in residential areas in cities and towns
All Freehold titles to land in urban areas were also converted to leaseholds
for 100 years effective from 1st July, 1975. No more undeveloped land in
urban areas was to be sold apart from developments on the land. All vacant
plots and undeveloped land in and around of Lusaka and all other towns
were to be taken over by local authorities.
iii. Estate agents
All real estate agents were closed down; these were identified as largely
responsible for inflated masses of land and housing and high prices

iv. Rent control measures

Dr. Kaunda identified the area of provision of land as a field where there
was extensive exploitation of the common man. Individuals were banned
from building houses for rent. The question of accommodation was to be left
to the state with its institutions like the party, central government, local
government, parastatal organizations and cooperatives. All rented buildings
owned by individuals whose value or costs has been realized were to be
taken over by local authorities.
v. Control of unplanned townships
Local authorities were to see to it that no unauthorized buildings were
elected within their areas of jurisdiction.

THE LANDS (conversion of titles) ACT

The lands (conversion of titles act) 1975 was the legislation which was to
implement the land reforms announced by Kaunda in his watershed speech even if
the act was passed on 19th august 1975, it was deemed to have come into operation
on 1st July, 1975.

THE MAIN FEATURES OF THE ACT

The lands (conversion of titles) act was the first act to affect tenure and
estate in general way in Zambia. The main features of the act were as follows;
a) The vesting of all land in Zambia absolutely in the president. This replaced
private rights in land held under freehold.
b) Converting titles to land from freehold title to leasehold statutory title of not
more than 100 years.
c) Prohibition or the abolition of sale, transfer and other alienation of bare land
for value.
d) Subject transactions in land to prior presidential consent.
The subjection of transaction in land to prior presidential consent was
perceived as the cure of the exorbitant sale of vacant urban land. In granting
consent, the president could also regulate the cost of sale of land. The mechanism
offered the government opportunity to monitor transactions in land to ensure
compliance with stated goals. Any transaction that violated the presidential consent
was declared null and void by the courts. What was in existence between 1975 and
1985 was a regulated land market where the president would fix maximum
consideration for any transaction in land.
Bridget Mutwale v Professional insurance-it was held in this case that lack
of presidential consent in land transactions rendered the action unenforceable at
by the court
Hina furnishing ltd v Mwaiseni stores ltd

THE 1985 AMMENDMENTS OF THE LANDS (CONVERSION OF

TITLES) ACT
In 1985 concerns were voiced in parliament on the amount of land that was being
alienated to foreigners. An amendment to the 1975 act was passed which in effect
restricted the ability of the government to give out land to foreigners. The act
allowed some exceptions to certain non Zambians such as approved investors,
non profit charitable organizations and transactions to which the president
had given his consent in writing.

THE LANDS ACT 1995 (present status quo)

The genesis of background to the 1995 lands Act lies in the MMD government
liberal economic policy. In its campaign manifesto in 1990, the MMD promised
not only to liberalize the economy but the land tenure system once in office.
Unlike the UNIP government which pursued communist or socialist policies,
the MMD committed itself to pursue a self regulated market economy with the
participation of both the local and the foreign investors in respect to land, the
economy policy shift in respect to land entails that there is now more recognition
of private property and less interference in the market as was not the case in the
previous regime. This in turn meant all the obstacles that infringed on the right of
free alienation had to be removed. The 1995 Act sought to drop certain principles
under the 1975 act which were seen as obstacles to the an open land market such
as the requirement of affixing maximum consideration in various transaction
restricting foreigners to acquire land and the notion that bare land had no value.
OBJECTIVES OF THE LANDS ACT
From the preamble the primary objectives of the Act is to provide the following
(a) The continuation of leasehold and leasehold tenure
(b) The continuation of vesting land in the president and the alienation of land
in the president
(c) To provide statutory recognition and continuation of customary tenure
(d) To provide for the conversion of customary into leasehold tenure
(e) To establish a lands development fund and lands tribunal
(f) To repeal the following Act`
(i) The lands conversion of titles Act
(ii) The Zambia (state lands and reserves) orders 1928-1964
(iii) The Zambia (trust lands) orders in council1947-1964
(iv) The Zambia (Gwembe district) orders in council 1959-1964
(v) The western province land miscellaneous Act 1970

PRINCIPLE FEATURES OF THE ACT

1.The Vesting Of Land In The President And Power To Alienate Land

The Act under section 3(1) vests absolutely all land in the president to be held
by him in perpetuity for and on behalf of the people of Zambia
Section 3(2) of the Act gives the president the power to alienate land to any
Zambian subject to certain restrictions under section 3(4) which pertains to land
under customary tenure
The restrictions are that the president cannot alienate customary land to any
Zambian or non –Zambian without;
(a) Taking into consideration the local customary law on land tenure which is
not in
conflict with the statute
(b) Consulting any other person or body whose interest would be affected by the
grant
(c) Consulting the chief and any other local authorities in the area in which land
to be alienated situated.
(d) Ensuring an African for a leasehold title has obtained a prior approval of the
 local authority within whose area the land is situated.

POWER TO ALIENATE LAND TO A NON ZAMBIAN

The circumstances under which land is alienated or granted to a non Zambian are
outlined under section 3(2) of the Act and have been increased from those
obtaining under 1985, amendment to the lands conversion of titles Act due to the
government quest to promote foreign investment, six more instances have been
added to those under the 1985 Amendment act. The instances mainly relate to
investment. These include the following provisions under section 3(2) of the lands
Act;

(3) Subject to any other provisions and procedures relating to alienation of land,
the President may alienate land to a non-Zambian under the following
circumstances:

(a) where the non-Zambian is a permanent resident in the Republic of Zambia;

(b) where the non-Zambian is an investor within the meaning of the Investment
Act or any other law relating to the promotion of investment in Zambia; Cap.
385
(c) where the non-Zambian has obtained the President's consent in writing under
his hand;
(d) where the non-Zambian is a company registered under the Companies Act, and
less than twenty-five per centum of the issued shares are owned by non-Zambians;
Cap. 388
(e) where the non-Zambian is a statutory corporation created by an Act of
Parliament;
(f) where the non-Zambian is a co-operative society registered under the
Co-operative Societies Act and less than twenty-five per centum of the members
are non-Zambians; Cap. 397
(g) where the non-Zambian is a body registered under the Land (Perpetual
Succession) Act and is a non-profit making, charitable, religious, educational or
philanthropic organisation or institution which is registered and is approved by the
Minister for the purposes of this section; Cap. 186
(h) where the interest or right in question arises out of a lease, sub-lease, or
under-lease, for a period not exceeding five years, or a tenancy agreement;
(i) where the interest or right in land is being inherited upon death or is being
transferred under a right of survivorship or by operation of law;
(j) where the non-Zambian is a Commercial Bank registered under the
Companies Act and the Banking and Financial Services Act; or Cap. 388
Cap. 387
(k) where the non-Zambian is granted a concession or right under the National
Parks and Wildlife Act. Cap. 201

The president has power to alienate any land to a Zambian and non Zambian
for a term of not exceeding 99 years unless the president considers it necessary in
the national interest or in the fulfillment of the obligation of the republic and this is
approved by 2/3of the members of the national assembly.
The president is only empowered to alienate land upon receiving a
consideration inform of money for such alienation and ground rent except where
alienation is for public purpose. What constitutes a public purpose has been
defined in section 4(1) of the Act.

THE REQUIREMENT OF CONSENT

Section 5(1) provides that a person shall not sale or alienate, transfer or assign land
without the consent of the president and shall accordingly apply for the consent
before doing so,
The instances for which consent may be required have been substantially reduced
from those under the 1975 Act . There is now more need for consent to sublet,
mortgage or charge.
Case applicable;
1.HINA FURNISHING LTD V MWAISENI PROPERTIES LTD 1984
2.MPASHI V AVONDALE HOUSING PROJECT LTD 1988-89
3.MUFALO V NGANGA (1988-89)

SURRENDER OF LAND HELD BY THE COUNCIL

section 6 of the lands act provides that all land which previously held by the
council on a lease or sublease for a period of 99 years or less shall be deemed to
have been surrendered to the president and the sub-lesee shall be deemed to hold
directly from the president
CUSTOMARY HOLDINGS
section 7 of the act provides for the recognition of the customary holdings or
tenure. it provides that every piece of land in a customary tenure which was vested
in or held by any person under customary tenure shall continue to be held and to be
recognised under the act.
CONVERSION OF CUSTOMARY TENURE INTO LEASEHOLD TENURE
In terms of section 8(1)of the Act, the holder of the land under customary tenure
may convert it to leasehold tenure may convert it into leasehold tenure not
exceeding 99 years on application.
The conversion of rights from customary tenure to leasehold tenure shall have the
effect only after approval of the chief and local authorities in whose area the land
to be converted is situated.
The procedure to follow for the converting customary tenure into leasehold
tenure is governed by statutory instrument no.89 of the 1996, under this S.I the
chief is empowered to grant or to refuse consent to convert customary tenure into
leasehold. Where the chief refuses to consent he must communicate in writing to
the applicant and the commissioner for lands stating the reasons for such refusal.
Where the chief consents to the conversion, he is required to confirm;
(a) That the applicant has a right to the use and occupation of the land.
(b) That the period of time that the applicant has been holding to the land under
customary tenure.
(c) That the applicant is not infringing on the rights of any other person
The chief is required to refer the application to the council for
conversion in whose area the land to be converted is situated, the lands
before making a recommendation to the commissioner of lands shall
consider whether thereby is a conflict between customary law and the act if
the council is satisfied that there is no conflict between the Act and the
customary law it shall recommend to the commissioner of lands. The
commissioner may accept or refuse the recommendations and must in
inform the applicant accordingly.
Once customary tenure has been converted to leasehold tenure there is
now a requirement to pay a ground rent

THE LANDS DEVELOPMENT FUND

In 1995 Act established a land development fund under section 16 of the lands Act.
The funds consisted of;
(a) 75% of the consideration paid under section 4.
(b) All monies appropriated by parliament for the purpose of the funds.
(c) 50% of the ground rent collected from all land
The fund is vested in the minster of finance but is managed and administered
by the minister of lands. The funds are required to be applied to the opening up
of new areas for the development of land. A council that wishes to develop any
area in its locality may apply to the fund for money to develop the area.

LANDS TRIBUNAL (DISPUTE RESOLUTION)

The lands tribunal is established under section 20(1) Of the Act . the tribunal
was created as a forum for the speedy resolution of the land dispute as well
as a way of reducing the costs of litigation in the land matters
The compositon of the lands tribunal is provided under section 20(2) of the
 lands Act.
JURISDICTION OF THE LANDS TRIBUNAL
The jurisdiction of the lands tribunal is under secion 22 of the lands Act. The
tribunal has jurisdiction to;
(a) Inquire into and make awards and decisions in any disputes relating to land
(b) To inquire into and make awards and decision relating to any disputes and
compensation under the Act.
(c) Generally inquire and adjudicate upon any matter relating to any law , right
and obligation under the Act of any person or government
(d) To perform any such acts and carry such duties as may be prescribed under
the Act or any other written law.

THE ‘HOUSING STATUTORY AND IMPROVEMENT AREAS’ ACT

(1974)
At the time of independence Zambia was the most urbanized country in thr sub
Saharan Africa. Immediately after independence, restrictions were on migration
to urban areas were lifted , the vision growth rate increased rapidly but the building
problem fail more and more shortof demand. The inflax of the people into the
urban areas created a problem of human settlement. In his watershed speech
president Kaunda allude to the problem of unlanned townships and directd the
local authorities to control the mushrooming of squatter settlement . Initially
squatter clearance was the official response to the growing problem of illegal
setlement in the urban areas.
In the 2nd national development plan (1972-76), government approach towards
squatter problem changed from that of demolition to that of campaign to
co-operation squatters. Government came up with a policy of squatters upgrading,
it was recognized under the plan that although squatter areas are in planned and
financial terms. The areas required planning and services and that they wholesome
demolition of goods and bad houses alike was not a practical solution.
THE HOUSING STATUTORY & IMPROVEMENT AREAS ACT.
The Act was enacted in 1974 as a legal mechanism through which the concept of
site and service squatter upgrading was to be achieved. The Act provides for the
creation of a type of areas namely:
Statutory; housing areas improvement areas
Statutory housing areas
Section of the Act empowers the minister responsible for housing improvement
areas y statutory order to declare any area of land within their jurisdiction of the
council to be statutory housing areas. The land will be declared if it is held by the
council under a statutory or leasehold tenure.
Section 5 of the lands Act provides for the subdivision and letting of land in the
statutory housing areas intended to be conveyed into statutory housing areas is a
lease. The landholder is given a certificate of title pursuant to the lands Act in
respect to any grant in statutory housing areas
IMPROVEMENT AREAS
As a way of granting of tenure to people living in the illegal authorized settlement,
the minister is empowered within the jurisdiction of the council to be an
improvement area, in other words the minister is empowered to legalize what was
illegal settlement. Furthermore the squatters are then issued with the occupant
license for the period of not less than 30 years with a possibility of renewal. If the
minister does not declare a squatter settlement to be an improvement area, the area
will remain illegal. Such settlement in Lusaka includes Misisi, John Laing etc.
compounds like M‟tendere chawama Kalingaliga etc have been declared to be
improvement areas.

Note that the invest granted to occupants in the improvement areas is a license and
not a lease. If the area is an illegal compound, ordinarily the council is not obliged
to provide basic services but once an illegal compound is deemed to be an
improvement area the council is obliged to provide basic services.

NON APPLICATION OF CERTAIN ACTS IN THE STATUTORY HOUSING

AND IMPROVEMENT AREAS.
Section 48 provides for the non application of the following Acts to statutory
housing and improvement areas.
1.lands and deeds registry Act
2.the lands survey Act
3.the rent Act
4.the town and country planning Act.
The non application of the above Act to the statutory housing and
improvement areas was to make dealings in lands as simple and cheap as possible
THE COMPULSORY ACQUISITION ACT
Compulsory acquisition may be defined as the taking of property or land or an
interest in the land, usually under the statutory power without his agreement.
Compulsory acquisition is the an aspect of the government‟s power of eminent
domain that is usually deemed inherent in sovereign states to take away property
for public use court has restated the right of principle of eminent domain as
follows;
„ the power to take away property for public use generally termed as the right of
eminent domain belongs to every independent government. It is an incident of
sovereignty that require no constitutional recognition
The law relating to the subject compulsorily acquisition of property in Zambia is
contained in the constitution of Zambia and the lands acquisition Act

CONSTITUTION BASIS FOR COMPULSORILY ACQUISITION

The current 1991 constitution as amended like the previous constitution. The
country has had provides guarantees and protection against deprivation of property.
Article 16 (1) of the constitution clearly states that the general rule that the
acquisition must be under a law which must provide for adequate compensation.
Sub article (2) of article 16 given exceptions to the general rule. The sub article
provides four instances where property can be compulsorily taken away without
adequate or any compensation.
The most important exceptions relating to this subject are those under Article 16
(2) (j) and (k)
(J) Provides as follows;

In terms of any law relating to the abandoned unoccupied, unutilized or

undeveloped land as defined by such law.
(K) In terms of any law relating to the absentee or non resident owners as defined
in such law of any property.
THE LANDS ACQUISITION ACT 1970
The lands acquisition Act was enacted mainly to address the problems created by
the absentee landlords were singled out or targeted as the object of the Act.
SALIENT FEATURES OF THE ACT.
1. The right to acquire property.
Section 3 of the Act empowers the President to compulsorily acquire any property
of any description.
Whenever he is of the view that it is desirable or expedient in the interest of the
republic to do so. Therefore the sole test in the determining the validity of the
compulsorily acquisition is whether or not it is in the interest of the republic to
acquire the land in question.
Although the Act is silent on the question of purpose or purposes for which the
state may compulsorily acquire property, it has been held by the High court of
Zambia that the purpose must be a public one.
Case ; WILLIAM WISE V ATTORNEY GENERAL1990/1992
2. The notice of intention to acquire property.
Once the president has resolved to compulsory acquire property, the minister of
lands is required to give notice of intention to acquire property to the person(s)
interested in the property. The notice will invite all parties interested to submit all
claims for publication in the national gazette. The notice to yield up the property
comes after. This refers to the giving up of the property.
COMPENSATION
Section 10 refers to compensation and provides that compensation shall be paid for
compulsorily acquired.
The compensation must be in the form of money or if the owner desires estate
equivalent to the land acquired.
Section 12 contains what the minister takes into consideration.
DISPUTE AS TO COMPENSATION
If. there is a dispute as to compensation of quantum, the minister shall refer the
matter to the national assembly however the mere fact that the dispute has been to
the nationa assembly does not prevent the president from compulsory acquire the
land provided he paysby the required the amount required by the minister as first
compensation to the owner of the land.
UNUTILISED, UNDEVELOPED, LAND AND ABSENTEE
LANDLOADS
Section 15 of the lands acquisition Act provides that where the land is unutilized or
undeveloped or to which an absentee owner is a beneficiary no compensation shall
be payable in respect of undeveloped or unutilized land simply stated undeveloped
may be acquired without compensation.
UNDEVELOPED LAND
Land is deemed undeveloped having regard to the national needs. However land
will not be considered developed in the following circumstances;

1. Where it has been fenced or hedged

2. Cleared, leveled or ploughed
3. Consent of cleared or partially cleared site of some former development
4. Is being used as a parking place for motor vehicles, deposit for refuse or
waste
Land in rural ares used for agricultural pastoral or mixed agricultural and
pastoralwill not be deemed as undeveloped unless it has not been used for such
purposesany time preceding the publication of notuce to yield possession
UNUTILISED LAND
Land will be deemed to be unutilized it is in caseb of rural areas thee exploitation
is not in accordance with good estate management having regard to the character
and situation of the land and all other relevant circumstances.
In the case of land in urban areas if it has been developed by erection
building of building which has fallen into substantial disrepair or disuse and the
land is unoccupied or occupied merely by persons employed as watchmen for a
continuance period of not less than (3) months preceding the publication to yield
possession
 Who is an absentee landlord
An absentee landlord in terms of section 16 is defined as the Person who is not
ordinarily resident in Zambia or if it is a cooperate organization is under the
effective control of persons who are not ordinarily residents in Zambia