CHAPTER ONE
INTRODUCTION TO LAND LAW
You should be familiar with the following areas
- Concept of Land Law
- Objectives of Studying land law
- Sources of Land Law
- Challenges in Understanding Land Law
1.1 CONCEPT OF LAND LAW
Land law not only that is a challenging area of law, but also interesting one. The importance of the subject is routed from the importance of land to human life. According to Kate and Joe on book known as “Land Law” published by creative and Design London 2004 pg.3
“The dry and legalistic façade created by the artificial language and technical concepts of land law tends to conceal the fundamental issues: land law is really just about the sharing out of our limited islands”
1.1.1Meaning of Land Law
Is branch of public law which deal with ownership, disposition and different uses of land. It is body of laws which governs the ownership of commercial transfer and the use of land. It focuses on relationships between land and rights which can exist in/over land and relationship between various persons who wish to own or defeat those competing interests.
Land law investigates the private law rules affecting ownership and use of land. It explains the principles governing the nature of property and property rights, their formal and informal acquisition and priority incorporating the registration of land title and property rights, the co-ownership and management of land though trusts, the use of land as security and the relationship between neighboring land owners
1.2 OBJECTIVES OF STUDYING LAND LAW
(a) To acquire knowledge on the rights and liabilities attached to interests in land and how to address them.
(b) To acquire knowledge on the meaning of land and its distinction with other sets of properties
(c) To provide an understanding on the rules and procedure that regulate conveyancing. Includes vendor and vendees, mortgagors and mortgagees, lessor and lesseses.
1.3 SOURCES OF LAND LAW
1.3.1 The Constitution of United Republic of Tanzania
The Constitution provides under article 24, private property and compensation to all those whose property has been acquired.
Sub article 1 of article 24
“Every person is entitled to own property, has a right to the protection of his property held in accordance with the law”
Sub article 2
“Subject to the provisions of sub article 1, it shall be unlawful for any person to be deprived of his property for purposes of nationalization or any other purposes without the authority of law which makes provision for fair and adequate compensation”.
1.3.2 Statutes
The Land Act [Cap 113 R.E 2013] and the Village Land Act [Cap 114 R.E 2002] are the laws that regulate land in Tanzania Mainland. The Land Act is specific to land other than village land while the village Land Act is specific for addressing village land. It needs to be noted also that where there are conflicts on a particular matter in relation to land, the Land Act prevails. Also there are;
- Land Registration Act [Cap 334 RE 2002], Registration of Documents Act Cap 117 Cap 117
- Registration of Documents Act [Cap 117 RE 2002]
- Land Acquisition Act [Cap 118 RE 2002]
- Land Disputes Courts Act [Cap 216 RE 2002]
1.3.3 Customary Law
The term customary law simply refer to binding rules applied within various tribal societies or local ethnic communities in Tanzania. Section 180 (1) (a) of Land Act provides that customary law is one of the laws to be applied by courts in determining disputes of land nature in Tanzania. Most of provisions of the village Land Act provides for the applicability of customary law to the village land. But the application of such customary law shall not be repugnant to the National Land Policy or other laws as provided under section 20(2) of the village Land Act.
1.3.4 Received Laws
When the British colonialists took over Tanganyika from the Germans after the First World War they promulgate the Tanganyika Order –in Council, 1920. The said Order in Council provided for application of subordinate of common law, the doctrines of equity and statutes of general application which were in force in England at the reception date. The same provisions were re enacted in the Judicature and Application of Laws Ordinance of 1920 (now JALA).
Received law forms part and parcel of laws of the land. Section 180 (1) (b) of the Land Act makes a slight modification on received law:
“The law to be applied by the courts shall be, inter alia, the substance of the common law and the doctrines of equity as applied from time to time in any other countries of the commonwealth which appear to the court to be relevant to the circumstances of Tanzania.”
1.3.5 Case Laws
There are decisions of the superior courts of record in a judicial hierarchy which binds the lower courts. Section 180 (3) of the Land Act imposes a duty of the courts in interpreting and applying the Act and at other laws relating to land in Tanzania to use their best endowers to create common law Tanzania applicable in equal measure to the land.
1.3.6 Islamic Law
Islamic law is only applicable to matters of personal nature. See the second proviso to section 11(1) of the JALA Cap 358. On land matters, Islamic law aspects of Wakf is applicable. Part IV of the Probate and Administration of Estates Act Cap 352 provides for administration of Wakf Property. Also Islamic law is applicable in case of probate or administration of the estate of deceased Muslim.
1.4 CHALLENGES
This subject, require a lot of concentration and revision. The facts and issues that are normally dealt with are sometimes intertwined. For instance while you may have focused your mind on registered land, there can be circumstances where the land is not registered and yet you must address the problem. Sometimes you may find that subject matter in question seems to be ownership of land but such ownership may be challenged by other interests like adverse possession. In other cases you may be facilitating a client as a conveyance to dispose or purchase a piece of land but the subject matter of disposition has liabilities or burdens in the form of encumbrances.
It is obvious that studying land law for the first time make you come across terminologies which are somewhat new and confusing. It is such terms which reduce the bulkiness of descriptive hurdles though. But again while to a lay person land may mean the soil, legally land includes everything that is attached to it Quicquid Plantatur solo solo cedit include tangible and intangible things i.e corporeal and incorporeal hededitaments. With land there are superior interests. The latter cannot exist without former.
Also this field of law uses ancient and technical language and frequently refers back to history, often at great speed with little depth. But a structured approach to study the key principles will help a great deal. Land law can be an accessible and enjoyable subject (everyone needs and uses land) and the historian element adds both important context and colour to the principles. For instance one will note that, while a chattel may be moved from one place to another and even be destroyed at the will of the owner land is different. It is immovable and inderstrctible. It is such characteristic which gives it peculiar rules and principles.
It is however interesting to bear in mind that Land Law is about the relationship that people and the state have with land. Nobody can live without land, and most people have to share it, creating competing rights. Disputes about rights in land cannot be avoided. People’s relationships to land depend on many factors and have a strong cultural element. Land Law thus tells a student much about the society to which it applies. According to Clare, land can be a financial asset, a home, something spiritual and incapable of individual ownership, or belong to the state or to a ruler, for example. In a market-based society, land must be freely tradable, nut there also be security for those who own it and those who have lesser rights in it, such a s a right to walk across it. Many land law problems will involve not just two but three sets of competing interests: those of a buyer of the land, seller of the land, and a third party who may have superior or some lesser intrest in the land ( e.g. the Government, an occupier with a right to live there a term or years e.g a tenant, or mortgage for a loan secured respectively.