CHAPTER ONE

INTRODUCTION TO CONVEYANCING

You should be familiar with the following areas

  • Meaning of Conveyancing
  • Terminologies
  • Historical background of Conveyancing
  • Laws Applicable
  • Conveyancer
  • Qualities of good Conveyancer
  • Important principles to be observed by connveyancer
  • Task of Conveyancer

1.1  MEANING OF CONVEYANCING

Conveyancing is the correct procedure of the giving over of property by means of appropriate instruments. Conveyancing is inclusive of assignment, appointment and other assurance and covenant to surrender, made by an instrument on a sale, mortgage, demise or settlement of any property or any other trasaction for any property. The land Act under section 2 define disposition to includes sale, mortgage, transfer, grant, partition, exchange, lease, assignment and surrender.

1.2  TERMINOLOGIES

1.2.1        Land

Land includes the surface of earth and the earth below the surface and all substance other than minerals or petroleum forming part of or below the surface things naturally growing on the land, building and other structures permanently affixed to or under land and local covered by water.[1]

Refer to all the Land of Tanzania. Public land includes general, reserved and village.

Refer to a right in over a right of occupancy. Interest can amount to property if interfere to that land.

Mean to the use and occupation of land and includes the title of Tanzania citizen of African or Germany of Tanzania citizen of African descent using or occupy land in accordance on customary laws.

Is the manner in which people own land thus includes principles and underlying guidance for land holding usage and transactions.

In relation to right of occupancy means transfer of an interest in or over land on condition attached to land.

Means the passing of right of occupancy a lease or a mortgage from one party to another by act of the parties as opposed to operation of laws. Section 2 of the land Act

Mean the passing of a right of occupancy a lease or mortgage from one person to another on death or insolvency otherwise.

1.3  HISTORICAL BACKGROUND OF CONVEYANCING IN TANZANIA

As regards control under customary law, the records show there was clan control over the sale of clan land under the natives laws customary communities in Tanzania. That is to say, under the customary law, clan land was supposed to be sold to clan member and not to non clan member. The occupier of clan land could only sell the land to a non member if none of clan member was unable to purchase. It means that if s clan land was sold to a stranger without the consent of the clan elders, it should be redeemed by the owner or by any clan member if the owner of the land not redeemed it.

Originally the customary law required a legal action to nullify the sale to be instituted within three months of the sale on which the relatives first heard of the sale. However this was later modified by the customary law (Limitation Proceedings) Rules 1963 which provides for the limitation period to be 12 years.

Statutory limitation on the other land was at different limits depending on the nature of the land involved. To begin with, section 11(1) of the Land(Law of Property and Conveyance) Ordinance provided that a disposition of land belonging to a nature in favor of a non-notice or conferring on a non-notice any right over the land of nature shall not be operative unless approved by the Government. It is not disputed that at independence the term governor was replaced by the term President, mean that this legal restoration on disposition of the nature land to a non-notice was retain in letter and in spirit by the independent Government of Tanzania. The president was empowered to delegate to any person the powers of approving disposition made under this law, so that in 1962 the powers and duties of the President were transferred to the Minister of land, Forest and Wildlife and later to the commissioner for lands, Assistant Commissioner for Land and Land Officer and other officer in the management of land issues.

The effects of this law appeared on two levels. On the first level, the Registries of documents and titles were required not to register or give effect to any disposition made in contravention of the law or approvals. On second level, a disposition so made without approval was deemed unenforceable in law. As it was happened in the case of Mohamed Alladetta v El Hark (1955) 22 EACA 34. The second level of was stated by regulation 3(1) of the Land Regulation of 1948 as amended. The regulation stated that

3(1) A disposition of a right of occupancy shall not be operative unless it is in writing and unless and until it approved by the Governor”

Various decision by the court was made and made the following observation that it is over considered opinion that a contract falling within the scope of regulation 3 has all the attributes of a valid contract, except those, of which performance before the requisite consent is sought and obtained is prejudicial to the interests of the paramount landlord such are for example terms which performed has the effect of replacing the holders of right which another person without the consent of the paramount landlord. Such terms though valid are unenforceable on the grounds of public policy which protects the interests of a paramount landlord. The valid contract is what is meant by the expression “shall be inoperative” under regulation 3

      The corollary of what we have stated is that a contract of the disposition of land, which otherwise is proper but for the lack of required consent is inoperative that is unenforceable to the paramount landlord.

1.4  LAWS APPLICABLE

  1. Registration Act [Cap334 R.E 2019]
  2. The Land Registration Regulations
  3. The Local Government (District Authorities) Act Cap 287 [R.E 2002]
  4. The Local Government (Urban Authorities) Act Cap 288 [R.E 2002]
  5. The Survey Act [Cap 324 R.E 2002]
  6. The Unit Titles Regulations, 2009
  7. The Unit Titles Act, Act No.16 of 2008

1.5  CONVEYANCER

Conveyancer is a person who convey property but also includes the one who facilitates the transfer of property. In the law of real property, to convey means to transfer property from one to another; in its widest sense, it means the transfer of propertyor title to another by means of a written instrument.

1.6  QUALITIES OF GOOD CONVEYANCER

  1. Business like mind: negotiates with client and on behalf of client
  2. Technical know how the process of conveyancing and associated procedures and what documents to be prepared.
  3. Knowledge on conduct of title investigation in connection with creation and assurance of interest in land.

1.7  IMPORTANT PRINCIPLES TO BE OBSERVED BY CONVEYANCER

  1. Not practice without qualification
  2. Integrity not to compromise standard innocence sincerity
  3. Be ethical-because of conflict of interest
  4. Not to handle matters of which has no experience
  5. Always exercise due diligence

1.8 TASK OF CONVEYANCER

  1. Advice clients on legal & procedural requirements
  2. Consider suitability of terms of transfer
  3. Assist client to prepare documents (drafting) for transfer of real property
  4. Assist client to investigation of property title
  5. Attestation of documents

[1] Section 2 of the Land Act },�v>]�