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Fact Sheets

 

LODGING OF A CAVEAT

A Caveat is a form of injunction that is provided for under the Registration of Titles Act Section 139. It means that someone is claiming an estate or interest in the land and serves as notice of such interest to anyone dealing with that particular property. When a Caveat is lodged it prevents any dealings with the Title. For example, a transfer or mortgage will not be registered if there is a Caveat on the Title. According to this section, any beneficiary or other person claiming any estate or interest in land under the operation of the Act or in any lease or mortgage under any unregistered instrument or by devolution in law or otherwise may lodge a caveat with the registrar forbidding the registration of any person as transferee or proprietor of and any instrument affecting that estate or interest until after notice of the intended registration or dealing is given to the caveator as is required in the caveat, or unless the cavaetor consents in writing to the registration.

To lodge a caveat the following is required;

The Caveat should contain:

You may attach copies of the relevant documents evidencing the interest being claimed, for example, the sale a letter of charge or agreement for sale.

However, the Registrar of Titles may request additional information or proof depending on the facts of each case. There is no need for the duplicate certificate of title to lodge a caveat. A caveat is noted on the original certificate of title only.

N.B. Lodging a caveat without reasonable cause may lead to compensation to any person who may have sustained damage by the lodging of the same as the High Court deems just and orders as Section 143 of the Registration of the titles Act so provides.

PROCEDURE FOR APPLICATION FOR A CERTIFICATE OF CUSTOMARY OWNERSHIP

According to the of the Land Act section 6 (1), the chairperson of a committee shall be responsible for ensuring that the procedures to be followed by the committee as set out in this section and any other procedures that may be prescribed that may be prescribed are complied with.

Under the same section (2) where an application has been submitted to the committee, a notice in the prescribed form shall be published and posted in a prominent place in the area and on the land which is the subject of the application-

(a)    Specifying the location and approximate area of the land;

(b)   Requiring all persons who claim any interest in the land or in any adjacent land which may be affected by the application, including in respect of any adjacent land claims as to the boundaries of that land, to attend a meeting of the committee at specified time and put forward their claims; and the time specified shall be not less than two weeks from the date on which the notice is published and posted as required by this subsection.

(3) On the date specified under subsection (2), the committee shall hear and determine all claims made under that subsection.

(4) The committee may adjourn any hearing into any claim and request an officer from the district land office, any other person or a group of persons recognized within the parish as having knowledge about the land and its incidents of tenure to conduct further investigations into that claim.

(5) In hearing and determining any claim, the committee shall use its best endeavors to mediate between and reconcile parties having conflicting claims to the land.

The committee shall-

(a)    Prepare a  report on the application, recording all claims to interests and rights in the land or to the occupation and use of the land and its opinion on whether those claims have been approved to exist, setting out its findings and recommendations with reasons on the application, including in all cases whether the application should be approved with or without conditions, restrictions or limitations endorsed on the certificate  and forming part of the incidents of customary ownership evidenced by the certificate or refused, and all claims made in relation to the application;

(b)   Give or send a copy of the report to the applicant;

(c)    Submit the report to the board;

(d)   Make a copy of the report available within the area for inspection by all persons who submitted claims to or who were heard by the committee.

However, the applicant has to fill Form 1 of the Land Regulations 2004, Regulation 3 and submit it to the area land Committee with Shs. 5000/=.

N.B. The form can be acquired from the Area land Committee.

RIGHTS OF INDIVIDUALS OVER COMMUNAL LAND

Communal land is that land held by a specific community or group of people recognizing individual rights in that land and regulating its use and management. Communal land may be held on a certificate of customary ownership or freehold title by the managing committee on behalf of members of the Communal Land Association.

Communal land is managed under customary law and any other laws that may be applicable such as the Constitutional and Land Act provisions on non-discrimination, the provisions of the National Environment Statute that ensure conservation of the environment. Where an Association holds land under customary or Freehold tenure, the Association must recognize and verify that all or part of the land it holds is occupied and used by individuals and or families for their own purposes and benefits.

Under customary tenure, a family is recognized as a legal person represented by the head of the family.  The individual/family therefore has access and user rights to this land but the actual ownership lies with the Communal Land Association. The shares of each individual or family are well known by the entire community or clan and therefore ascertaining their rights to a particular piece of land is feasible.

However, an individual or family within a community wishing to own her/his/its land which under customary norms is available for her/his/its use and occupation may:

There are appellate procedures provided for in the Land Act, where a person is aggrieved by the decision of the Association in wanting to obtain individual interests in land out of communal land. The study found a strong ‘clan’ and/ or ‘extended family’ influence on obtaining individual rights over customary land with a limited role being played by the local council in instances of purchase. In all focus group discussions, respondents attested to individual rights over communal land as being limited to user and occupation rights; ownership rights are generally limited to the clan or the wider family.  The clan and / or the extended family are the apportioning authority.  It is also important to note that these limited individual rights favour men more than women with married women being accorded special rights to transact in land.

Customary Law and Land Reforms

There is often a misunderstanding of the nature and role of customary law and practices.  Customary Law and practices are regarded as negative factors and evidences of bad practice.  The most important area where this view comes out is on the question of land law, tenure, and property rights.  Underlying, this view is the conception that customary law is based on the belief that it is a system of land tenure originating from the pre-colonial days.  This conception posits customary law as an unchanging system with no capacity for growth or adaptation.

This view is contrary to the law, as it exists in Uganda. The Constitution gives a right to its citizens to practice their customs and cultures provided they are not against the dignity, welfare, or interest of women and undermine their status. A number of cases decided by the colonial courts and the courts of Independent Uganda have asserted the view that customary law changes and is adaptable to new circumstances.  These cases assert further, that new economic, political, and social forces generate new norms of customary law.

If customary law is conceived as a dynamic, adaptable, and progressive force, what should be of essence is how to integrate the conservation ethic in customary law, and the abandonment of customs and practices that are non-progressive.  Customary law is itself created by the existence of a general practice in a given community, where the members of the community accept the practice as law.  Since the colonial times, an additional criterion has been imposed on the legal quality of custom:  the custom must not be repugnant to natural justice and morality. This repugnancy test should be used to eradicate practices that infringe the rights of others on customary land.

Issues for Policy

a)      The guarantee of individual rights to customary land Vis` a vis` communal ownership.

This will be aided by the adjudication of those rights through systematic demarcation.  It will consequently enhance the land market and productivity, and reduce conflicts if individuals’ rights within communal land are adjudicated.  The customs and norms that should be applicable must not be repugnant to natural justice and morality.

b)      Ensuring gender equity in sharing of communal land bearing Section 27 of the Land Act and Articles 33 of the Constitution in mind.

Customs and norms of any given society are always thought of as working against the advancement of women and therefore suppressing them.  The Policy must guarantee their access to land under customary systems and ensure that other vulnerable groups are not marginalized.

DERIVED RIGHTS

Derived rights are not generally understood and have consequently received very little attention.  Focus has been on issues of permanent and transmissible ownership rights. However, they have been most commonly used as a means of accessing land by the landless and stand as a solution to increase productivity and reduce landlessness in most parts of Uganda. They are flexible non- permanent arrangements, which enable farming systems to adapt to changing economic conditions. They play a vital part in local land relations and have grown in importance with the increase in rural migration; thereby enabling migrants gain access to land. Derived rights play a very important role in real life agrarian situations by encompassing the use of land by people other than the owner and therefore, according the landless a chance to put land to productive use and consequently get out of poverty. The International Institute for Environment and Development defines derived rights as:

“ All means by which people gain access rights to grow crops on agricultural plots controlled by third parties, from open-ended loans of land to tenancies or share cropping agreements.”

Although derived rights exist in all systems of land tenure in Uganda, they are mostly found on customary land.  The customary tenure system is characterized by the coexistence of a multiplicity of rights regimes in the social and geographical territories controlled by rural communities.  These property regimes among others are: individualized customary tenure (which is usually around resources of high use and exchange value), communal customary tenure (individual rights to land are taken cognizance of whereas the administration vests with the clan heads and ownership is vested in the clan/community as a whole) , common land (which is usually of lesser value but supportive of the entire community needs), state reserves that are often treated as open access resources (the rights in these areas are always not well defined).

All these tenure regimes may be found within the spaces that communities consider to be their own.  These tenure arrangements are often site specific so no generalizations can be made about them, and thus the justification for their regulation by customary norms and practices of any given area or community. They also have a tendency to change and adapt to changing conditions and varying circumstances. Thus, the customary norms and practices governing them are not static and therefore, cannot be codified.

 

A derived rights arrangement (i.e. the assignment of rights of access to land) tends to be highly dependent on social relations between the parties and the extent to which commitments are respected depends very much on the quality of relationship itself. In some instances consideration in the form of money is given with oral contracts being entered into. These agreements have means of ensuring that commitments are respected and the rules enforced.  These may take the form of social sanctions against those who transgress the rules, mutual acquaintance, and trust between the parties, the clauses within the agreement itself and the right of appeal in the event of disagreement.

The existence of various types of land transfer arrangements is testimony to the flexibility and adaptability of customary tenure systems. Most people find land to cultivate through one of the mechanisms for transferring these rights. The flexibility in land transfer mechanisms helps to maintain peace and stability in rural areas and helps to ensure that local disadvantaged population populations, migrants, and internally displaced people can gain access to land, a key productive resource.

Women in particular have been able to gain access to land and use it for farming, a means of increasing their incomes. Although women derive secondary rights through marriage, upon divorce, they often lose rights of access and use of that land and thereby rendered landless.  The recourse they have is in their family land which is subject to the consent of the father and male brothers.  More often than not, one garden may be accorded to her and her children.  The fact that she can rent or borrow land from the neighboring landowners through a derived rights arrangement enables her to cultivate and therefore derive sustenance for herself and the children.

These derived rights are governed by customs and practices of a given society and traditional institutions/ systems that exist to execute them. Giving consideration to these existing institutions and systems facilitates an analysis of how things work in practice, rather than relying on an analysis of the formal legal framework or general principles of customary law. Although not exhaustive, derived rights can therefore be categorized into the following:

a)      Renting of land

b)      Land borrowing

c)      Land Pledging

d)      Access to land in return for labour services

e)      Share-cropping contracts

f)       Revolving cropping contracts

INDIVIDUAL HOLDING OF LAND CREATED OUT OF COMMUNAL LAND

Communal land is that land held by a specific community or group of people recognizing individual rights in that land and regulating its use and management. Communal land may be held on a certificate of customary ownership or freehold title by the managing committee on behalf of members of the Communal Land Association. Communal land is managed under customary law and any other laws that may be applicable. Where an Association holds land under customary or Freehold tenure, the Association must recognize and verify that all or part of the land it holds is occupied and used by individuals and or families for their own purposes and benefits as provided for under the Land Act Cap.227. And that for the purpose of holding land under customary tenure, a family shall be deemed to be a legal person represented by the head of the family.

While this Act recognizes that in some areas it may be more appropriate for land to be held communally, it is the long-term aim that most land should be held on individual freehold title. However, a distinctive feature of communal land tenure systems is that joint decisions are taken on which land to cultivate, which crops are to be grown, the number of seasons during which the land is to be cultivated and the length of the fallow period. Traditional leaders decide who has the right to use land, and this brings them social status and political control and hence resisting efforts to change the system.

Where any individual member of or family within a community wishes to own, in his or her or its own capacity, land which is held communally but which, in accordance with customary law, is made available for the occupation and use of that individual or household, then;

However, any person aggrieved by the decision of the association under this section may appeal against the decision to the land tribunal; and the land tribunal may confirm, vary, reverse or modify the decision of the association and make such other order as it is empowered to make under the Land Act.

CONVERSION OF LEASEHOLD INTO FREEHOLD

According to Section 28 of the Land Act Cap.227, any lease which was granted to a Ugandan citizen out of former public land and was subsisting on the coming into force of this Act may be converted into freehold. However there are certain conditions that should be complied with and these are;

The procedure that should be followed in case one is interested in having land converted from leasehold to freehold is as follows;

N.B If the land is more than 100 hectares, the Board has to be satisfied that it is in public interest and the lease holder must pay the market value before the leasehold is converted. And any person aggrieved by the decision of the board under this section may appeal to the land tribunal against the decision; and the land tribunal may confirm, reverse, vary or modify the decision and make such order as it may think fit.

SALIENT SECTIONS UNDER THE MORTGAGE ACT 8 OF 2009

Sale of mortgaged land

Under Section 19 the notice period in regard to default has changed from a 30 days’ notice to a 45 working days notice of default, the intention for which is to help the customer to repay the money upon failure to fulfill the loan repayments. However, the borrower must be issued a notice of sale for 21 working days which was not the case in the old law where there was no further notice necessary after the 30 days notice. Additionally, this requires a colored advert in a local newspaper.

Protection of the purchasers

Under Section 29, a purchaser in a sale effected by the mortgagee acquires a good title except in cases of fraud, misrepresentation or other dishonest conduct on the part of the mortgagee of which of which the purchaser has actual or constructive notice. However, lenders can’t buy mortgaged property without a court order as Section 30 of the Act so provides.

Powers of court

Part (V1) of the Act is to the effect that court is empowered to grant relief, however, there are some exceptions for example when it comes to family land all family members should be informed about the mortgage otherwise conflicts will arise. According to Section 20 of the Land Amendment Act 2004, no person is allowed to sell, exchange, transfer,   pledge and mortgage or lease any family land; enter into any contract for sale, exchange, transfer, pledging, mortgage or lease of family land or give away any family land, inter vivos or enter into any other transaction in respect of family land except with prior consent of his or her spouse. Therefore it is advisable that proof of ownership is scrutinized before granting the mortgage.

Legislation impediments from the law reform

The Mortgage Act 2009 has some limitations on the banks’ rights to engage in mortgaging. This has been attributed to the long periods of about 160 days that the customer has in order to recover the loan once the specified period of 30 days is over.

Determining the spouse deriving sustenance from the land

The definition of the word spouse under the Mortgage Regulations creates ambiguity hence making it difficult in determining a person who ordinarily resides on the family land together with his wife or her spouse and derives sustenance, especially in polygamous or customary marriages. Despite changes in the mortgage Act, there are still problems arising in the real estate industry.

Limited access to mortgagor’s property

According to the Act property evaluation is upon the mortgagee to take all reasonable steps to obtain the best price as per the Regulations and is mainly done based on the neighborhood hence if it’s located in a prominent place, the building acquires a higher value compared to when it’s built in a slum and in this case getting the consent of the mortgagor is quite hard.

CREATION OF LEASES

Under section 3 (5) of the Land Act Cap. 227, leases are created by contract or by operation of the law. The terms and conditions of which may be regulated by law to the exclusion of any contractual agreement reached between the parties under which one person namely the landlord or lessor, grants or deemed to have granted another person namely the tenant or lessee, exclusive possession of land usually but not necessarily for a period defined directly or indirectly. By reference to a specific date of commencement and a specific date of ending usually, but not necessarily in return for a rent which may be for a capital sum known as a premium or for both a rent and premium or for both a rent and a premium but may be in return for services or may be free of any required return, under which both the landlord and the tenant may, subject to the terms and conditions of the lease and having due regard for the interests of the other party, exercise such of the powers of freehold owner as are appropriate and possible given the specific nature of a leasehold tenure.

Terms and conditions that should be included in a lease agreement

  1. Description of parties
  2. Description of land
  3. Duration or term
  4. Premium
  5. When to revise the rent
  6. Maximum rent
  7. Purpose of the land (user)
  8. Quite enjoyment (exclusive possession)
  9. Payment of rent on time

According to the case of Greenboat Entertainment LTD versus City Council of Kampala HCT-C S-0580-2003, a contract was defined to mean an agreement enforceable at law.  For a contract to be valid and legally enforceable there must be: capacity to contract; intention to contract; consensus and idem; valuable consideration; legality of purpose; and sufficient certainty of terms.  If in a given transaction any of them is missing, it could as well be called something other than a contract.

However, breach of a condition gives the lessor the right to re- entry whereas breach of a covenant gives the lessor the right to recover damages or obtain an injunction unless the right to re-enter was expressly reserved to him or her.

LAND DISPUTES ON COMMUNAL LAND

It is a fact that land disputes have for long been a serious problem in Uganda and these have left parties dead or at least vowing to kill each other. Land disputes involve deliberate seizure of land or rights to land from the people. This is mainly due to power imbalances, unequal distribution of resources and skewed access to information and knowledge. Land is essential and the central asset for mainly the poor and their only source of subsistence. One of the most serious after effects of colonialism in Uganda is the way land was controlled and redistributed, a process that to the present day continues to affect livelihoods coupled with poverty. However, the Constitution of the Republic of Uganda (1995) provides for new and innovative ways for communities to redevelop systems of control and management of land so that their needs are met and the resource is protected.

Land disputes can occur within both the legal and the illegal frameworks and leads to dispossession, displacement and destitution of people. Uganda’s land problems stem from the colonial era, when British masters abused the native’s rights to own land by giving away their land to collaborating chiefs in Buganda. The colonial masters facilitated land disputes as well by allocating land owned by people to the local leaders. Under the 1900 Buganda Agreement people in Buganda were made tenants on their own land.

Recommendations:

a)      Keep land in the hands of local communities and implement genuine agrarian reform in order to ensure equitable access to land and natural resources.

b)      Promote community-oriented food and farming systems hinged on local people’s control over land, water and biodiversity.

c)      Increase court access for communities by ensuring independence of courts, reducing court fees, prioritizing land issues in courts.

d)     Facilitate court information technology as well as facilitating public interest law firms and Legal Aid institutions in order to be able to provide Legal Aid to victims of land disputes.

e)      There is need to conduct research on land grabbing especially on the perpetrators and the effects on the community. This research should inform campaigns and further activities against land grabbing.

f)       Developing a network on land disputes in order to share information, experience and interventions in the region, for example information on will writing that has the potential to reduce land disputes especially on the side of widows and orphans who have always been the victims.

POWERS OF ATTORNEY

A power of attorney refers to giving authority to someone to deal with your property on your behalf, in other wards it is a document that allows you (Donor) to appoint a person (Donee) to handle your affairs while you’re unavailable or unable to do so. The Powers of attorney are in two main categories and these are;

Under general Power of Attorney the donee is authorized to act on your behalf in different situations, yet under special Power of attorney the donee is authorized to act on your behalf in a special or restrictive way.

General Power of Attorney

A general power of attorney is very broad and provides extensive powers to the person you appoint as your donee. It is usually used to allow the donee to handle all of your affairs during a period of time when you are unable to do so. For example, when you are traveling out of the country and these powers normally include the following;

Special Power of Attorney

A special power of attorney is often used to allow your donee to handle specific situations for you when you are unavailable or unable to do so. For example, you could authorize someone to sell a car or a house for you. Many people use the special power of attorney to authorize their donee to do one or several of the following;

However, a power of attorney must be written, signed, registered and witnessed and remains in force until when it is revoked. Refer to the case of Erick SSali Vs Uganda Baati & Another (Civil Suit No. 564 of 2002) [2004] UG Comm.C 17.

THE DIFFERENCE BETWEEN JOINT TENANCY AND TENANCY IN COMMON

Joint tenancy refers to the ownership of land in common by several persons with a right of survivorship that is to say at the death of one of the joint owners land as a whole vests in the survivors and can only be disposed of by will by the last surviving owner. Every joint property is seized or possessed by the joint tenant “by the half and by the whole” in other wards by every part and by the whole.

There are four unities of joint tenancy which must exist or else the tenancy will be in common and these are;

In brief, joint tenancy has two principle features and these are; the right of survivorship which strictly refers to a situation whereby at the death of one of and the four unities as mentioned above.

On the other hand tenancy in common refers to a situation where two or more persons are entitled to land in such a manner that they have an undivided possession but several freeholds, in other wards no one of them is entitled to the exclusive possession of any part of the land each being entitled to occupancy of the whole in common with others. It is distinguished from joint tenancy by the fact that at the death of any one of them his or her share passes, not to the survivors but to his devisee, who then becomes tenant in common with the survivors.

There are three principle features under tenancy in common and these are that;

CO-OWNERSHIP OF LAND

Co-ownership is the holding of concurrent interests in the same property. It may be by way of joint tenancy or by tenancy in common.  At law, the preference was in favour of joint tenancy since this had feudal and conveyance advantages. The rule was that if land was conveyed to two or more persons a joint tenancy of the legal estate was created unless either one of the unities was absent or words of severance were employed.  The words of severance of joint tenancy include the following, share and share alike; to be divided amongst; equally between. Article 26 of the Constitution gives connotations for the joint tenancy/co-ownership by guaranteeing ownership of property by all Ugandans individually or in association with others. Under Sect. 56 of the RTA (Cap. 230) the legal presumption as to the joint tenancy is stated as follows:

Two or more persons who are registered as joint proprietors of land shall be deemed to be joint tenants and in all cases where two or more persons are entitled tenants in common to undivided shares or in any land those persons shall in the absence of any evidence to the contrary be presumed to hold that land in equal shares.

This section provides for those wanting to co-own and this includes spouses who may want to co-own. The co-ownership principle gives spouses an option to either own land either under tenancy in common or joint tenancy. Sect. 94 of the RTA provides that; a proprietor may vest estate jointly in himself or herself and others without limiting any use, etc and it states that, “ The proprietor of land or of any estate or interest in land under the operation of the RTA, whether of the nature of real or personal property, may transfer that land, estate or interest to his wife; or if the proprietor is a married woman, she may make such transfer to her husband or the proprietor may make such transfer directly to himself or herself and another person or jointly with any other person to himself or herself alone, or to create or execute any power of appointment or disposition or to create or limit estates in remainder or otherwise as legal estates of or concerning land the subject thereof without the intervention of any precedent or particular estate, and also like estates as legal estates without the employment or intervention of any form of use and upon the registration of the transfer the land, estate or interest shall vest in the transferee solely or jointly as the case may be or in the person in whose favour any such power has been executed or taking under any such limitation or otherwise according to the intent and meaning of such instrument and she, he or they shall become and be deemed the proprietor or proprietors thereof.

RIGHTS OF SPOUSES DURING MARRIAGE

Under the Marriage Act, the law governing marriages in Uganda, property rights of married men and women are not clearly spelt out. However, under the Constitution of the Republic of Uganda (1995) and the Land Act (1998), both women and men have equal rights to own land and property, either individu­ally or jointly with other people and when they get married they do not lose these rights. It is important to remember that the Constitution is the ultimate guide for property rights in marriage and the following provisions of the Constitution apply to the property rights of both men and women regardless of the type of marriage, as long as that marriage is one that is legally recognized in Uganda:

In addition to that, some provisions of the Land Act specifically protect the property rights of married people. Under the Land Act it is stated that:

Under S.38 (A) of the Land Act as amended it is provided that every spouse has a right to enjoy security of occupancy on family land.  Security of occupancy means the right to have access and live on the family land.  The spouse has the right to use family land and give or withhold consent to any transaction referred to in S. 39 of the Land Act, which may affect his/her rights on the land.

THE UGANDA LAND ALLIANCE LAND OBSERVATORY

The mission of Uganda Land Alliance is to enhance access, control and ownership of land by the poor women, men, children and marginalized groups through ensuring fair land laws and policies for the promotion of land rights. According to this mission, it is incumbent upon Uganda Land Alliance to provide all the relevant information on land to the people to be able to access, control and own land, and this can only be done from a knowledge based point of view, thereby calling for a land observatory. The land observatory is a place of reference in land matters and is designed in such a way that is to be able to inform the legal and policy advocacy processes at national and international level about land matters, leading to better or fair land laws and policies.

The key objective of the Land Observatory is to enable all stakeholders to access information on land and effectively engage in discussion of land related issues that can lead to legal reform. There is general lack of information relating to land law and land rights and the means to systematically gather this information. The observatory aims to fill some of these gaps and help the stakeholders to identify areas where they have the responsibility and the opportunity to intervene for better land laws and land access. Land law remains important to people in order to regulate land ownership and use, and it is very relevant now.

However, land use and management in Uganda has tremendously had and caused many problems that range from poor ownership of land, land grabbing, destroying of crops, killing of animals and worst of all loss of life and the manner of land dispute resolution through alternative dispute resolution (ADR) will vary depending on the different regions of Uganda. Considering the challenges mentioned, this then calls for a solution to such problems and this can only be achieved by establishing a data bank which is referred to as the Land Observatory.

The justification for the Land Observatory derives from our inability to fully understand the available land laws and policies and thereby develop better land use and management strategies.

Based on experiences with other observatories, there’s every reason to believe that this land observatory should;

The Land Observatory therefore, tries to give adequate responses or answers to land queries hence it is designed in a manner that allows the person to download the entire content of the available data which is in a variety of download formats.

COMMON CATEGORIZATION OF DERIVED RIGHTS

Renting of Land

This is a means of land access commonly used in most of the North and Eastern Uganda.  Land is rented for a cropping season or many seasons at a fee agreed to between the two parties.  The types of crops usually acceptable are not perennial crops or the planting of trees.  It is usually one-season crops.  This ensures that the land can revert back to the owner at the end of the season without any complications. The onus to protect these agreements lies with the parties since they are drawn out of mutual understanding and agreement.

Land Borrowing

Land borrowing is different from land renting in that usually there is no consideration.  This ordinarily takes place within family members, neighbors, or friends.  It purely depends on the kind of social relationship that exists between the two parties.  Land borrowing is used as a means of accessing fertile land by those possessing little or no land at all.

Land Pledging

Land pledging is a community way of facilitating the credit market through the use of land.  A person surrenders his use rights over a piece of land for a sum of money.  The land only reverts to him/her after the payment of the money received.  Land pledging could be equated to a mortgage on registered land.

Access to Land in Return for Labour Services

In communities, there are usually people who do not own land but have the factors of production such as labour to offer.  The labour may be in form of human strength, on farm implements such as ploughs or even animals (bulls) that facilitate cultivation.  These may be traded for access to land.  Thus a person is given a piece of land to cultivate in return for the service rendered. There are also instances where landowners employ workers and these may or may not be resident on the land.  Whichever way, instead of paying a wage to these workers, the workers are given use rights over some land in exchange for the labour they provide.

Share Cropping Contracts

Sharecropping is common in communal lands and where use has been made of common lands such as the swamps for rice growing and sugarcane cropping among others.  Here, two or more people enter into an agreement to use the land for the purpose of growing a particular crop.  They agree to pool resources and on what shares each of them will take at the end of the harvest.  All the parties are involved in the production process and decision-making.  Different modalities of sharing the crop harvest are used. Share cropping contracts have been used mainly where there are high value crops that are labour and resource intensive. This ensures that the burden of gardening is spread out among a number of people and yet each benefits tremendously from the proceeds.  Share cropping further ensures that bigger pieces of land are cultivated and utilized at a minimum cost to the individual.  There is increased productivity and output and therefore, higher incomes to the parties

EASEMENTS AND LAND REFORM

Easements, although secondary rights, are crucial in the day-to-day operation of society and government, in view of individualization even of customary land, there is need to guarantee that the community is guaranteed certain rights of access over an individual’s land.  There have been instances where large-scale farmers have purchased large pieces of land and fenced them, neglecting the footpaths that the community has used from time immemorial.  There are ranchers who have even fenced off watering points from which the communities benefit.  This has raised conflicts between these large-scale farmers, ranchers and the communities. Easements are important in land use planning, especially in the case of urban development.  The clear demarcation of access roads to individual plots guarantees well-planned neighborhoods and hence, increases in the value of the land.  Easements also ensure better living conditions as neighbors will be guaranteed enough light and air and therefore, enjoy their living space.

Management of Easements

Policy issues

On which land should the endorsement be made?

The Registration of Titles Act clearly stipulates that a statement in the Certificate of Title that a person named in the certificate is entitled to an easement is conclusive evidence that he or she is entitled.  What is lacking in this proviso is where the endorsement is to be placed.  Should it be placed on the servient land or the dominant land?

Should it become mandatory that anybody selling land should ensure an easement of passage especially in the urban and peri-urban areas?

The Registration of titles Act states that easements created by enjoyment or user or subsisting over or upon any land constitute an exception to indefeasibility.  By indefeasibility of title is meant that once a person is registered as proprietor of an interest in land, the government guarantees that his/her title cannot be divested or attacked by rival claims to the land except as prescribed under the Registration of titles act.  Save for the exceptions stated in this section, the interest of a proprietor registered under the Act prevails over any other unregistered interest or claim over the land.

The easement of light seems to have been ignored by developers especially in the urban and peri-urban areas.

The current craze of building walls even in the most crowded and congested areas has deprived neighbors of access to light.  This easement is stated in common law and applied to numerous cases.  The Policy should address this issue, especially in relation to urban planning.

COMMUNAL LAND ASSOCIATIONS

Land is essential and the central asset for mainly the poor and their only source of subsistence. One of the most serious after effects of colonialism in Uganda is the way land was controlled and redistributed, a process that to the present day continues to affect livelihoods coupled with poverty. However, the Constitution of the Republic of Uganda (1995) provides for new and innovative ways for communities to redevelop systems of control and management of land so that their needs are met and the resource is protected. The said Constitution and Land Act of 1998 allow communities to form Communal Land Associations (CLAs) to own and manage land, including forests, as a community.

Formation of Communal Land Associations

A group of persons who wish to form themselves into an association may apply to the district registrar of titles to become an association under the Land Act.

A communal land association may be formed by any group of persons in accordance with the Land Act for any purpose connected with communal ownership and management of land, whether under customary law or otherwise. Within each district, the district registrar of titles performs such functions relating to communal land associations as are conferred on that officer by the Land Act or as may be prescribed.

The district registrar of titles shall, on receipt of an application convene a meeting of the group of persons which determines whether to incorporate themselves into an association whereby not less than 60% of the group determine so to incorporate themselves, elect not more than nine nor less than three persons of whom not less than three persons of whom not less than one third shall be women to be the officers of the association. The district registrar of titles or an authorized officer presides at the meeting convened.

The district registrar of titles keeps a public register of associations in the prescribed form and exercises a broad and general supervision over the administration of the associations within his or her district in order to ensure that they comply with their constitutions and manage the communal land under their control with due regard to the interests of the members of the association and without limiting the generality of that function. He or she may at any time that he or she considers it necessary for the proper performance of his or her functions or that it is in the public interest so to do, give direction to any officer of the association as to the proper performance of his or her duties and that officer shall be under a duty to comply with any such order.

CERTIFICATE OF CUSTOMARY OWNERSHIP

The Land Act Cap. 227 Section 4 provides that, any person, family or community holding land under customary tenure on former public land may acquire a certificate of customary ownership in respect of that land.

The application for a certificate of customary ownership is in a prescribed form and can be acquired from the Area Land Committee where as the certificate for customary ownership is supposed to be issued by the District Land Board.

Incidents of Certificate of Customary Ownership

Under Section 8 of the Land Act a certificate of customary ownership is considered as confirmation and conclusive evidence of the customary rights and interests specified in it and the land to which the certificate refers continues to be occupied, used, regulated and any transactions in respect of the land undertaken and any third party rights over the land exercised in accordance with customary law.

A certificate of customary ownership confers upon the holder of the certificate the right of the holder to undertake, subject to the conditions, restrictions and limitations contained in the certificate.

The holder of the certificate of customary ownership who undertakes any transaction in respect of the land to which the certificate relates provides the recorder with a copy or other accurate record of the transaction and the recorder shall keep all such records in the prescribed manner.

No transaction of leasing the land or part of it, mortgaging or pledging the land or a part of it where a certificate of customary ownership does not restrict it or selling the land or a part of it, where a certificate of customary ownership does not restrict it, shall have the effect of passing any interest in land to which the transaction relates unless it is registered by the recorder.

For the avoidance of doubt, where a mortgage of land to which incidents of certificate of customary ownership apply has been made under the Mortgage Act, the mortgagee has the power to sell and execute a transfer of that land to a purchaser in case of default by the mortgagor.

Under incidents of certificate of customary ownership, “usufructuary right” means the right to use and derive profit from a piece of property belonging to another while the property itself remains undiminished and uninjured in any way.

A certificate of customary ownership is recognized by financial institutions, bodies and authorities as a valid certificate for purposes of evidence of title.

Land Committees

The Land Act CAP. 227 establishes land committees under  S. 64 which states that, there shall be for each parish a land committees consisting of a chairperson and three other members appointed by the district council on recommendation of the sub county council and for each gazette urban land area and each division in the case of a city, a land committee consisting of a chairperson and three other members appointed by the council on recommendation of the urban council and in the case of a city, on recommendation of the city division council.

Terms and conditions

  1. A person holding office as a member of a local government council shall relinquish the office upon appointment as a member of the land committee.
  2. A member of the committee shall hold office for a period of three years and may be eligible for re appointment for another one term.
  3. The district council may terminate the appointment of a member of the committee for his or her inability to perform the functions of his or her office or for any good cause.
  4. The committee shall assist the board in an advisory capacity on matters relating to land, including ascertaining rights in land and shall perform any other function conferred on it by or under this Act or any other law.

Qualification for appointment as a member of a committee

To qualify for membership on land committee;

 

Challenges Faced by the District Land Boards

The District Land Boards derive their mandate from the Constitution of the Republic of Uganda (1995) and the Land Act (1998) which directly provide for their establishment, functions and powers and in addition the Registration of Titles Act which law directly provides for registration of land and the expropriated properties Act and Regulations which is mainly used in Kampala. The boards also rely on council policy and guidelines at institutional level while customary land law and cultural norms are also applied in certain instances. In applying all these laws, the boards face several challenges mainly related to conflict within and between various laws.

The Concept of Bonafide Occupants

This concept is under Section 29 (2) of the Land Act and the confusion arises out of this concept and its application. This section was designed to protect the rights of tenants who were sitting on registered land and these are in four categories.

However, many of these tenants have no legal support to qualify the category within which they follow. It is argued that the provision of land belongs to the people under the constitution, caused many internal migrants to just settle on land and begin counting the 12 years and hence creating another category of tenants who begun to claim rights on already registered land. These provisions seem to be unfair and have created a challenge of sorting out who among the tenants follows into what category and the tenants make no distinction between these categories as well.

Conflict with the Constitution

The Land Act conflicts with the constitution whereby the constitution provides that everyone has right to property (legally acquired) yet the Act is taking away this right by allowing tenants to have rights on somebody else’s land.

Other provisions in the Land Act are deemed Inadequate

The land Act provides that the board shall meet once every two months to discharge of its functions. This time seems inadequate because land boards have a lot to handle, the law should set more realistic timelines to enhance the ability of the district land boards to effectively implement their mandate.

Functions of the District Land Boards

The District Land Boards are established under the constitution (1995) article 240 and Section 56 of the Land Act (CAP. 227) which states that there shall be for each district a district land board and the board shall be a body corporate with perpetual succession and common seal and may sue or be sued in its corporate name.

FUNCTIONS OF A BOARD

The functions of the District Land Board are provided for under article 241 of the Constitution and Section 59 of the Land Act.

However in the performance of its functions, a District Land Board shall be independent of the Uganda Land Commission and shall not be subject to the direction or control of any person or authority but shall take into account National and District council policy on land.

Termination of Joint Tenancy

Joint tenancy refers to the ownership of land in common by several persons with a right of survivorship that is to say at the death of one of the joint owners, land as a whole vests in the survivors and can only be disposed of by will by the last surviving owner. Every joint property is seized or possessed by the joint tenant “by the half and by the whole” in other wards by every part and by the whole. Joint tenancy as a form of co-ownership has two distinguishing features that is; the right of survivorship and the four unities.

Joint tenancy can be terminated in three main ways and these are either by conversion into sole ownership, severance and partition.

Conversion into sole ownership means that, by virtue of the doctrine of survivor-ship when one or more of the joint tenants die, the survivor becomes the sole owner of the property. He or she can opt to be registered as the sole proprietor of the land by virtue of S. 192 of the RTA Cap 23

Severance occurs when a joint tenancy is converted into a tenancy in common. Since all joint tenants have a potential share in the property, they can sever the joint tenancy in their lifetime. Severance cannot be affected by will. There are several reasons why co-owners may opt to sever the joint tenancy, but the most common event can bring severance is the breakdown in the relationship between co-owners. In these circumstances the likelihood is that each of the co-owners would no longer wish the other co-owner to take the property in its entirety but would prefer to leave his or her share to someone else. In situations where only one party desires to sever the joint tenancy then only then an act of any party operating on his or her own share allows unilateral severance of a joint tenancy. However, severance can be done in three ways and these are;

Partition: The co-owners owners may apply to court to have the land divided. However, this is a legal right and there is no way how one can stop this action. When a court grants a partition action for joint tenants with rights of survivorship, the property is either physically broken into parts and each owner is given a part of equal value or the property is sold and the proceeds are distributed equally between the co-owners.

Vesting Orders as Registrable Instruments

Among the powers given to the registrar, there is granting vesting orders in cases of completed purchase. Under Section 166 of the R.T.A it is provided that whenever any person interested in land under the operation of the R.T.A or any estate or interest in the land appears to the High Court to be a trustee of that land, estate or interest within the intent and meaning of any law for the time being in force relating to trusts and trustees and any vesting order is made in the premises by the High Court, the registrar on being served with the order or an office copy of the order, shall enter in the Register Book and on the duplicate certificate of title and duplicate instrument, if any, the date of the order, the time of its production to him or her and the name and addition of the person in whom order purports to vest the land, estate or interest and upon the date of that registration as defined in section 46 (3) that person shall become the transferee and be deemed to be the proprietor of the land, estate or interest. Unless its registration is affected, the order shall have no effect or operation in transferring or otherwise vesting the land, estate or interest.

Still under Section 167 of the R.T.A, it is stated that if it is proved that to the satisfaction of the registrar that land under R.T.A has been sold by the proprietor and the whole of the purchase money paid, and that the purchaser has or those claiming under the purchaser have entered and taken possession under the purchase and that entry and possession have been acquiesced in by the vendor or his or her representatives, but that a transfer has never been executed by the vendor  and cannot be obtained by reason that the vendor is dead or residing out of the jurisdiction or cannot be found, the registrar may make a vesting order in the premises and may include in the order a direction for the payment of such an additional fee in respect of assurance of title as he or she may think fit and the registrar upon the payment of that additional fee, if any, shall effect the registration directed to be made by Section 166 in the case of the vesting orders mentioned there, and the effecting or the omission to effect that registration shall be attended by the same results as declared by Section166 in respect of the vesting orders mentioned there.

However, according to the case of Aida Najjemba Vs. Esther Mpagi (Civil Appeal No. 74/05) [2009] (UGCA 22nd Jan. 2009). There are 4 conditions provided in order for the registrar to exercise his or her powers of granting vesting orders and these are;
1.  The land must be registered under the provisions of the Registration of Titles Act and the purchaser must have paid the whole of the price to the vendor.
2.  The purchaser or those claiming under him or her have taken possession of the purchased land.
3.  That the entry into possession by the purchaser has been acquiesced by the vendor or his or her representative.
4.  The transfer of the property has not been executed because the vendor is dead or is residing out of jurisdiction or he/she cannot be found.

Conveyance of Land by Sale & Transfer

In Uganda if one wishes to buy or purchase land it is advisable to seek the help of a lawyer or refer to the land observatory (ULA) for advice in order to competently handle the process. However, the main procedures involved during the said process are summarized hereunder for reference;

Title searches: Immediately after identifying the land there is need to conduct a search and this is done by making a written request addressed to the commissioner- land registration, giving the description of the land. The buyer needs to establish that the vendor has a “Clean” Title before he can proceed with a purchase or lease. Carrying out a Title search at the Land Registry Office confirms true ownership and whether the said land is free from other claims or encumbrances and if so, the intending buyer is free to go on and buy the land.

Payment of deposit and executing of sale agreement: The terms of payment for the land in question should be set out in either a sale or lease agreement as the case may be. The sale and lease agreements are normally drafted and witnessed by lawyers/advocates and area local councilors in certain cases. The seller and the buyer plus their witnesses are required to sign the agreement.

Transfer forms: A sale agreement or lease agreement does not by itself constitute transfer of the land sold or leased. The seller of registered land should sign transfer forms to enable the buyer to have the registration of the land officially changed into the buyer’s names. The transfer forms upon execution are registered with the Registrar of Titles.

Assessment and payment of stamp duty: A transfer of land or lease attracts stamp duty, which must be paid before a transfer can be affected. The Uganda Revenue Authority assesses the stamp duty payable. The assessment is done after the land in question has been valued. The stamp duty payable on transfer of land is 1% of the value of such land. Once stamp duty has been paid, the original and the duplicate certificates of title are then presented to the Registrar of Titles to record the change.

However, it should be noted that in Uganda only citizens have land ownership rights as stipulated by the 1995 constitution of the republic of Uganda. The constitution restricts non citizens to only acquiring leases in land. It should further be noted that, a person claiming any interest in registered land, for instance a lease or mortgage can lodge a caveat with the Registrar of titles. Any caveat lodged will be reflected on the certificate of title, on the encumbrance’s page. The caveat forbids the registration of any person as transferee or proprietor by way of a sale, lease, mortgage or any other interest on land.

The Difference between A Lease & License

A Lease is a conveyance of land for a specific period of time and this is usually done by the premium or rent. However, it is a system of owning land on contract. A grant of land would be made by an owner of freehold or Mailo or by the Crown or Uganda Land Commission to another person for a specified period of time and on certain conditions, which included but limited to payment of rent. The grantee of a lease for a period of 3 years or more would be entitled to a certificate of title.

Types of leases:

  1. There are periodic tenancies
  2. Those which are fixed

Key features:

  1. Created by contract or operation of the law
  2. Grant of exclusive possession and use of land to a tenant for an agreed period
  3. Payment of rent or premium by the tenant to the landlord
  4. Land use and possession is granted for a limited period

A License is a permission given to a person to enter another person’s land for a specified purpose, an act which would otherwise have amounted to trespass.

There are four types of licenses and each confers different protections to the holder of a license.

To amount to a lease there must be exclusive possession unlike a license where there is no proprietary interest and hence it is non transferable because it does not create an interest in land.

A lease has a specific period of time and can be determined by the operation of the law, failure of which attracts damages whereas a license cannot be disposed by will or devolve by operation of law.  This means that a license is enforceable between the parties and is not alienable in any way.

Fact 19/2/2012: Acquisition of Land by non-Citizens

According to the Land Act, a non citizen means a person not a citizen as defined by the Constitution and the Citizenship Act, i.e. any person whose parentage lacks citizenship of Uganda or has not been naturalised by government or whose registered birth was outside Uganda but whose parents are not Ugandan citizens. Whereas for corporate bodies, non citizen is a corporate body whose controlling interest or decision making lies with non citizens or a company incorporated in Uganda whose Articles of Association does not contain a provision restricting transfer or issue of shares to non citizens.

The Constitution of the republic of Uganda (1995) stipulates that land in Uganda belongs to the citizens of Uganda and shall vest in them in accordance with the land tenure systems which are Customary, Freehold, Mailo and Leasehold ownership. The registration of Titles Act allows the proprietor of land or lease or mortgage or of any estate, right or interest therein to transfer the same by transfer and the form is provided in the seventh schedule of the same Act and all the interests and liabilities are then vested in the transferee.  However, under the land Act a non citizen can only acquire land through a lease tenure system which is registered under the Registration of Titles Act if the lease is for 5 years or more but if is more than 99 years it cannot be granted to non citizens. On the other hand, a citizen holding freehold or mailo land tenure and loses Ugandan citizenship shall be obliged to convert their tenure to leasehold for a period of 99 years.

However, leasehold tenure was created to mean a system of owning land on contract. A grant of land would be made by an owner of freehold or Mailo or by the Crown or Uganda Land Commission to another person for a specified period of time and on certain conditions, which include but not limited to payment of rent. The grantee of a lease for a period of 3 years or more would be entitled to a certificate of title.

Under the Land Act, Leasehold tenure is a form of tenure

(a)  created either by contract or by operation of the law;

(b) the terms and conditions of which may be regulated by law to the exclusion of any contractual agreement reached between the parties;

(c)  under which one person, namely the landlord or lessor, grants or is deemed to have granted another person, namely the tenant or lessee, exclusive possession of land usually but not necessarily for a period defined, directly or indirectly, by reference to a specific date of commencement and specific date of ending;

(d)  usually but not necessarily in return for rent which may be for a capital sum known as a premium or for both a rent and a premium but may be in return for services or may be free of any required return;

(e)   Under  which both the landlord and the tenant may, subject to the terms and conditions of the lease and having due regard for the interests of the other party, exercise such of the powers of a freehold owner as are appropriate and possible given the specific nature of a leasehold tenure.

 

Fact 18/1/2012: Implications of Derived Rights and Land Reform

The derived rights have several advantages and should not be disregarded, their arrangements allow for efficient solutions to be found to the unequal distribution of factors of production which include land, labour, technical, and financial capital e.t.c.

Derived rights arrangements do not seem to cause a great deal of insecurity because they depend on the relations which exist between the parties and the extent to which the commitments are respected.  The degree of insecurity associated with these rights varies, depending on factors such as the level of competition for land, the relationship between the parties concerned, or the effectiveness with which land tenure is regulated.

Some of the derived rights like, land renting, loaning, and borrowing transactions have positive effects in as far as household agricultural production is concerned.  However, there are negative effects in the arena of social relations where the transactions turn out to be a source of social tension owing to conflicts that arise over conflicting intra-familial interests and failure to honour agreements.

The diversity and flexibility of derived rights stem from and help meet the needs of particular farming systems within a given community.  Trying to define a legal status for them raises insurmountable legal difficulties, given that they occur on customary land, most of which is not registered nor is likely to become so in the near future. Derived rights arrangements therefore, need to be left free of regulation as this may impede their efficiency and effectiveness.

Policy issues;

a) Recognizing the legitimacy and dynamism of derived rights

This encompasses recognizing the dynamics of customary land tenure and its capacity to adapt to changing circumstances.  There needs to be a  recognition of the existence of rights and institutions operating within communities which is not dependent on the establishment of legal rights of ownership, but rather, on the establishment of processes whereby rights and the assignment of those rights are recognized and guaranteed by clear  procedures.  This requires the adoption of measures which enable the achievement of greater security to the holders of the derived rights, without making registration and the attainment of a certificate the only procedure for achieving recognition of rights in land.

Derived rights ensure access to land for those who would otherwise have been regarded landless.  These rights, therefore, need to be recognized as normal elements which exist in all land tenure systems and a positive factor in agricultural production, thus, reducing poverty among the landless and facilitating the land market.

b)       There is need to determine the degree of autonomy allowed to traditional systems of managing customary land.

This specifically comes into play when considering women’s rights and rights of other vulnerable groups that society may deny access rights to land.  Women’s access to land should not be conditioned on whether they are cultivating high value crops or not.  Provisions of Articles 33, 34 & 35 of the Constitution and Section 28 of the Land Act need to be taken seriously if the access rights of the vulnerable are to be protected.

Recourse must be made to the law where it is applicable despite the customary nature of the land.  The policy must therefore state the level of autonomy that these traditional institutions are granted in the administration of customary land and in dispute resolution.  Although the Land Act takes cognizance of traditional institutions in dispute resolution, there is need to harness these in policy and recognize the important role they play in ensuring the efficiency and effectiveness of the derived rights arrangements.

c) There is need to determine the degree of subsidiarity permitted in land management

Despite the provision for customary land management in the Land Act, there are other existing traditional mechanisms that communities recognize and respect as institutions facilitating land management.  The policy needs to stipulate mechanisms and determine the degree to which these institutions should be empowered to participate in land management, taking into consideration the role they play in securing derived rights arrangements in the communities they serve.

Fact 17/12/2011: Conditions on purchasing land

Consent of spouses and children:  The Land Act prohibits the disposal of land from which the family ordinarily resides and from which they derive their sustenance without the prior written consent of the spouse whether by way of sale, transfer, exchange, mortgage or lease.  Without this written consent, a buyer acquires no title to the land.

Title searches:   The buyer needs to establish that the vendor has a “Clean” Title before he can proceed with a purchase or lease. Carrying out a Title search at the Land Registry Office confirms true ownership and whether the said land is free from other claims or encumbrances. A Title search may be done through a lawyer.

Payment of deposit and executing of sale agreement: The terms of payment for the land in question should be set out in either a sale or lease agreement as the case may be. The sale and lease agreements are normally drafted and witnessed by lawyers/advocates. The seller and the buyer plus their witnesses are required to sign the agreement.

Caveats: A person claiming any interest in registered land, for instance a lease or mortgage can lodge a caveat with the Registrar of titles. Any caveat lodged will be reflected on the certificate of title, on the encumbrances page. The caveat forbids the registration of any person as transferee or proprietor by way of a sale, lease, mortgage or any other interest on land.

 

Transfer forms: A sale agreement or lease agreement does not by itself constitute transfer of the land sold or leased. The seller of registered land should sign transfer forms to enable the buyer to have the registration of the land officially changed into the buyer’s names. The transfer forms upon execution are registered with the Registrar of Titles.

Assessment and payment of stamp duty:  A transfer of land or lease attracts stamp duty, which must be paid before a transfer can be affected. The Uganda Revenue Authority assesses the stamp duty payable. The assessment is done after the land in question has been valued. The stamp duty payable on transfer of land is 1% of the value of such land. Once stamp duty has been paid, the original and the duplicate certificates of title are then presented to the Registrar of Titles to record the change.

Registration of Mortgages: Once a mortgage has been executed, the land title is deposited with the mortgagee. Upon payment of the prescribed fee and stamp duty, the Registrar registers the mortgage by indicating it on the encumbrances page of both the original certificate of title (kept in the registry) and the duplicate title presented by the mortgagee. However, a release of a mortgage may be executed upon payment of the debt. The mortgagee releases the land title and the release of mortgage document to the registered proprietor. The registered proprietor then presents the release of mortgage document and the title deed to the Registrar of Land Titles. Upon payment of the prescribed fee, the Registrar releases the mortgage.

 

Fact 16/11/2011: Derived rights

Derived rights are not generally understood and have consequently received very little attention.  Focus is often on issues of permanent and transmissible ownership rights.  However, they have been most commonly used as a means of accessing land by the landless and stand as a solution to increase productivity and reduce landlessness in most parts of Uganda.  Derived rights are flexible non- permanent arrangements, which enable farming systems to adapt to changing economic conditions.  They play a vital part in local land relations and have grown in importance with the increase in rural migration; thereby enabling migrants gain access to land.  Derived rights play a very important role in real life agrarian situations by encompassing the use of land by people other than the owner and therefore, according the landless a chance to put land to productive use and consequently get out of poverty. Derived rights are defined as; “All means by which people gain access rights to grow crops on agricultural plots controlled by third parties, from open-ended loans of land to tenancies or share cropping agreements”.

Although Derived rights exist in all systems of land tenure in Uganda, they are mostly found on customary land.  The customary tenure system is characterized by the coexistence of a multiplicity of rights regimes in the social and geographical territories controlled by rural communities.  These property regimes among others are: individualized customary tenure (which is usually around resources of high use and exchange value), communal customary tenure (individual rights to land are taken cognizance of whereas the administration vests with the clan heads and ownership is vested in the clan/community as a whole) , common land (which is usually of lesser value but supportive of the entire community needs), State reserves that are often

Ms. Molly Etap displays products from her garden

treated as open access resources (the rights in these areas are always not well defined). All these tenure regimes may be found within the spaces that communities consider to be their own.  These tenure arrangements are often site specific so no generalizations can be made about them, and thus the justification for their regulation by customary norms and practices of any given area or community.  They also have a tendency to change and adapt to changing conditions and varying circumstances.  Thus, the customary norms and practices governing them are not static and therefore, cannot be codified.

A Derived rights arrangement (i.e. the assignment of rights of access to land) tends to be highly dependent on social relations between the parties and the extent to which commitments are respected depends very much on the quality of relationship itself. In some instances consideration in the form of money is given with oral contracts being entered into.  These agreements have means of ensuring that commitments are respected and the rules enforced.  These may take the form of social sanctions against those who transgress the rules, mutual acquaintance, and trust between the parties, the clauses within the agreement itself and the right of appeal in the event of disagreement.  Most people find land to cultivate through one of the mechanisms for transferring these rights.  The flexibility in land transfer mechanisms helps to maintain peace and stability in rural areas and helps to ensure that local disadvantaged populations, migrants, and internally displaced people can gain access to land, a key productive resource.

 

Women in particular have been able to gain access to land and use it for farming, a means of increasing their incomes. These Derived rights are governed by customs and practices of a given society and traditional institutions/ systems that exist to execute them.  Giving consideration to these existing institutions and systems facilitates an analysis of how things work in practice, rather than relying on an analysis of the formal legal framework or general principles of customary law.

 

Although not exhaustive, derived rights can therefore be categorized into the following;

(1)   Renting of land  (2) Land borrowing (3) Land Pledging (4) Access to land in return for labour services

(5) Share-cropping contracts and (6) Revolving cropping contracts.

Fact 15/11/2011: Restrictive Covenants

A restrictive covenant is an agreement that restricts/limits the use of the servient land for the benefit of the dominant land.  There are three major rules that have been refined by the Courts of law for application in enforcing restrictive covenants Tulk V Moxhay [1843-60] All ER Rep.9.  These rules are:

In the case of Uganda today, restrictive covenants are mostly applicable in the housing estates schemes where developers such as National Housing, Akright Housing Project and others purchase huge chunks of land and subdivide them into plots with the intension of creating well planned neighborhoods.  The aim of the developer is to have the plan maintained in a certain way consistent with the scheme.  In such a case a restrictive covenant to maintain the plan is enforceable not only against the immediate purchaser, but also against the successive purchasers of the plot.  The rules for enforcement of this right are laid down in the case of Elliston V Reacher [1965] Ch. 816 as:

Restrictive Covenants and Land Reforms

There is growing a culture of condominiums, housing estates and housing projects which require strict adherence to plan if the purpose for which they are established is to be achieved, and if the value of the land is to be maintained.  Restrictive covenants come in handy to guarantee that purchasers of property in these estates stick to the plan of the estates or condominiums to ensure that the neighborhood is comfortable for those living in it. The purpose of such restrictive covenants is that plot owners can sue each other to enforce covenants in the scheme and therefore maintain the purpose for which the scheme was created.  It should however, be bone in mind that only negative covenants are enforceable.

Issues for Policy

Whether notations of restrictive covenants should be made on a certificate of title.

The Registration of Titles Act makes no provision for the registration of Restrictive covenants.  However, because of their importance, it makes it desirable that a notification be made on the certificate of title to bind the holder of such certificate to comply with the requirements of the covenant.

Fact 14/11/2011: PROFITS A` PRENDRE

This confers a right to enter and remove something that forms part of the land, e.g. sand, gravel, timber or grass from the land of another person. It may also include the right to catch fish or hunt wild animals.  This may be an exclusive right or a right enjoyed in common including the grantor for an indefinite or specified period of time.

Profits a` prendre may also be referred to as rights of individuals over common land.  These rights are recognized by the Land Act, which goes ahead to lay down the uses for which common land may be set aside.  These are mainly traditional uses such as collecting firewood, hunting, watering points, etc. mainly for the well-being of individuals within the community

A profit a` prendre is an incorporeal (intangible) hereditament which confers rights in land and, therefore, binds the person dealing in the subject matter and hence it is an interest in land.  Land registered under the RTA is free from this right unless expressly granted by the owner of such land. There are relatively limited tracts of common land often tied to land held by the Kingdoms and government.

Profits a` prendre and Land Reforms

These rights that exist on customary land are crucial for the smooth functioning of society.  However, in view of increased individualization of customary land and the reduction in the amount of vacant land available, it is becoming more and more difficult for the members of a given community to exercise this right without reproach.

Tenure reform involves among others, interventions in already existing social and property relations, and the affected communities may be more or less resistant or supportive, and more or less united or divided, in their responses to such innovations such as enhanced land rights for women or their representation on land management bodies.

Nevertheless, given the value of common property resources to women, policies aimed at strengthening community access to these resources, and recognizing the layers of overlapping rights in land that are accommodated within customary systems of land tenure can be very important for not only the women, but all the socially vulnerable and disadvantaged groups of society.

It should be bone in mind that profit a` prendre is vital to local communities because it is a means of generating income.  This access is to mainly communally owned lands such as the forests, grazing land (rangelands), swamps, quarries, riverbanks and lake shores, which too are subject to various restrictions under various pieces of legislation.  The critical issue then is the responsibility at community level on the management of common lands.

 

Issues for Policy

a)                  Policy needs to reconcile access to these resources with the provisions embedded in the various       pieces of legislation and policies.

b)                  There is need to harness the guarantee of these rights through the protection of common property     resources.

c)                  There is need to harness the guarantee of these rights through the protection of common property     resources.

Fact 13/11/2011: Climate Change

Climate change refers to the change of normal weather patterns around the world over a long period of time.

Some of the major causes of climate change are;

Deforestation which means the loss of forest and loss of carbon storage.

Emission which refers to a substance discharged in the air.

Carbon is one of the normal weather patterns around the world over a long period of time, so if this is in abundance and cannot be absorbed then climate change occurs.

Forest degradation which reduces the number of trees and stock of carbon in a specific area, the combination of all these has led to climate change and as a result many changes are witnessed and these include among others; the change in seasons, volcano eruptions, changes in solar energy that reaches the earth, ocean currents, amounts of snow and so on.

Key terms related to climate change

Climate is described as the average weather or weather conditions that happen over a long period of time.

Carbon dioxide refers to the result of joining carbon with oxygen. It takes 1 part of carbon joining with 2 parts of oxygen to form the gas carbon dioxide.

Carbon cycle refers to the natural process of carbon moving or flowing between the different places where it is used and stored (reservoirs).

Ecosystem is a natural group of plants, animals and micro- organisms that live together in a specific place with specific characteristics or environment.

Adaptation refers to a change in the way of doing something. Because the climate is changing, plants, animals and people are going to need to adapt to new weather conditions.

Global warming refers to the increase in the average temperature of the earth’s atmosphere.

Atmosphere refers to the mixture of gases that surround the earth- the atmosphere begins at the surface of the earth and extends into outer space in many layers.

Weather refers to the temperature, rainfall or storms in a specific place on a specific day or over a short period, like one season.

Mitigation is the process of stopping or lessening climate change by reducing greenhouse gas (GHG) emissions that come from industrial activities and forestry and agricultural activities.

Greenhouse gases (GHG) these are gases that help to regulate the earth’s atmosphere.

Greenhouse effect refers to the process of how the atmosphere keeps the earth warm.

Photosynthesis refers to the natural process where plants take in the light and heat from the sun and carbon dioxide from the air, and release oxygen to make plants grow and keep our air clean.

Fact 12/11/2011: Land occupancy and land reforms

Lawful and Bonafide Occupants shall enjoy security of tenure.  This legal guarantee of continued occupancy rights for the tenants by the Land Act is aimed at enhancing productivity and sustainable livelihoods, and to reduce recurring instances of massive evictions in the country.  Tenants may acquire certificates of occupancy on the land they occupy if they so wish.  This is evidence of their ascertained rights.  However, not having one does not mean, one loses the right to the tenancy.  This certificate of occupancy can be mortgaged, pledged, transferred or passed on by will with the permission of the landowner.  In granting permission, the landowner may impose conditions, which must not discourage the transaction from taking place.

Tenancies may be terminated by mutual agreement or by failure to pay ground rent for two (2) consecutive years which results into notice of one year to the tenant to show sufficient reason for not paying.  If after one year of notice, the tenant is still unable to pay, the Land Tribunal will terminate the tenancy.

Tenancies by occupancy, although viewed by some as detrimental to development because both the land owner and the tenant do not put the land to optimal productive use, this opinion is countered by that of ensuring security of tenure to the citizens of Uganda; which in turn is a production incentive.

Issues for Policy

a)      The extent to which security of occupancy for Bonafide occupants should be guaranteed.

Whereas no problems arise relating to the lawful occupants, the Bonafide occupants create a set of problems that policy should sort out.

Where the owner of land has been absent not by choice, e.g. has been in prison or exile, must he forfeit his/her rights to land because of the existence of a Bonafide occupant?

Should the law be guaranteeing the Bonafide occupants the same rights as the lawful occupants?

b)      The rights of the tenant can almost be equated to those of the landowner, thus creating a stalemate in the use of land.  Banks no longer take Mailo land for mortgaging because of tenant landlord concerns.

c)      The Land markets especially in central Uganda are affected by the impasse created on the land. Because of the restrictions on sell of land without the consent of the other, it is becoming more and more cumbersome to purchase mailo land especially for development purposes.  This is because of the encumbrance of existing tenants by occupancy who cannot be evicted.


Fact 11/10/2011: Licences

A license is a permission given to a person to enter another person’s land for a specified purpose, an act which would otherwise have amounted to trespass.  A license does not create an interest in land although it is a secondary right.  Because it does not create an interest in land, it cannot be disposed by will or devolve by operation of law.  This means that a license is enforceable between the parties and is not alienable in any way.  Thus if a landlord who granted a license to another sold the land, the new purchaser of the land does not have an obligation to recognize the existing license even if the seller had notified him.  Thus the license does not bind the purchaser.

There are four types of licenses and each confers different protections to the holder of a license.

A bare license is the simplest type of license and does not confer any protection to the license holder.  It is a license granted without valuable consideration and therefore, may be withdrawn at any time by the grantor of the license.  If the licensee remains on the land, an action of trespass can be brought against him by the grantor of the license.

A license coupled with interest is where a license is granted for the specific purpose of taking away something that forms part of the land or is upon the land.  This license is irrevocable as long as the grant exists and may be assigned provided it is disposed of with the interest to which it is annexed.  If the license is granted to take away something forming part of the land e.g. minerals, gravel, sand, e.t.c, it is profit a` prendre discussed above.  The common examples here are licenses granted by Government to explore minerals and to excavate.

A contractual license is a license granted for valuable consideration although it does not run with the land.  Thus, it does not bind third parties.  In case of revocation, the licensee has recourse to the law in breach of contract, and therefore, is entitled to damages, payable by the grantor of the license.

Licenses by estoppel are created where a landowner creates an impression in the mind of another that he/she is granted such land for use.  If there is such continuous use without notice to vacate from the owner of the land, it is presumed that there was an intention to create a license and the owner in law may be deterred for revoking that use or occupation of land.  This kind of license may apply to successors in title.

Fact 10/10/2011: Creation of Easements

Easements created by statute

A statute may authorize, usually, a public authority to create easements for carrying out their activities. Under The Water Statute, the Director of Water Development has power to create an easement over a person’s land for the purpose of carrying water over that land to another person’s land. Under the Registration of titles Act, the statement in a certificate of title that a person named in the certificate is entitled to an easement is conclusive evidence that he or she is so entitled.  Therefore, Easements created by statute need not have all the essential characteristics of easements discussed above.

Easements created by express grant or reservation

An easement may be created by express grant where a landlord sells part of her/his land to buyer and in the transfer, she/he grants the purchaser, for the benefit of the land sold to him, a right to use a footpath over her/his land to reach a public road.  The right to use the footpath on the seller’s land is an easement created by express grant.  An easement by express reservation is created where, in our example, the landlord sells part of her/his land to the buyer and in the instrument of transfer, she/he reserves a right of way over the land sold for the benefit of the land she/he retains.  The right of way is an easement created by express reservation.  The legal effect is the same whether an easement is created by express grant or by express reservation.

Easement created by implied grant and implied or intended easements

An easement by implied grant is a quasi-easement, thus a continuous and apparent easement which is necessary to the reasonable enjoyment of the land and is at the time of the grant used by the landowner for the benefit of that part of the land.  An example of this is a garden attached to the land.  On the other hand implied easements are those where the easement is required for the purpose of carrying out the common intention of both the grantor and grantee of the easement without express agreement.  Easements may also be created by long user or prescription even though there may be no actual evidence of grant of the easement.  By long user it means a period of not less than 20 years.

Easement of necessity of way

Where a landowner sells part of his/her land and the part he or she retains is left without any legally enforceable means of access to a public road, an easement of way of necessity will be implied over the land sold.  Likewise, where a landowner grants part of his/her land to another and the latter has no legally enforceable means of access to the land granted, then an easement of way of necessity arises by operation of the law over the land retained. The easement arises by operation of the law because, it is a matter of necessity and vital to the effective ownership of that part of the land that the owner should have access to, otherwise the land would not be of much use to him or her. However, an easement of way of necessity does not arise if there is an alternative means to access what is practicably available to the claimant as a matter of right.

Fact 9/9/2011: Rights of Individuals over communal land

Communal land is that land held by a specific community or group of people recognizing individual rights in that land and regulating its use and management. Communal land may be held on a certificate of customary ownership or freehold title by the managing committee on behalf of members of the Communal Land Association.

Communal land is managed under customary law and any other laws that may be applicable such as the Constitutional and Land Act provisions on non-discrimination, the provisions of the National Environment Statute that ensure conservation of the environment. Where an Association holds land under customary or Freehold tenure, the Association must recognize and verify that all or part of the land it holds is occupied and used by individuals and or families for their own purposes and benefits.

Under customary tenure, a family is recognized as a legal person represented by the head of the family. The individual/family therefore has access and user rights to this land but the actual ownership lies with the Communal Land Association. The shares of each individual or family are well known by the entire community or clan and therefore ascertaining their rights to a particular piece of land is feasible.

However, an individual or family within a community wishing to own her/his/its land which under customary norms is available for her/his/its use and occupation [may]:

 

 

Under circumstances where one wishes to have conversion from customary ownership to freehold ownership the procedure is provided as follows;

Conversion from Customary to Freehold Ownership

ü  The Customary owner makes an application using form 4 to the land Committee and pays Shs.15,000/=

ü  The Committee makes a report with recommendations on the application to the board.

ü  The land board then orders and has the land surveyed.

ü  The land board accepts the conversion with or without conditions or rejects the application. The decision of the board is recorded on the application.

ü  Where the board accepts the application, it sends a copy to the office of the titles for issuance of a certificate of title.

Fact 8/8/2011: The plight of Widows in Uganda

In 1995 Uganda adopted the Constitution of the Republic of Uganda (1995) which protected a wide range of human rights. Under chapter 4 of the   Constitution women have the right to be treated equally with men. This includes having equal opportunities as men in every area of life (socially, economically and politically). Women have the same rights as men in regard to owning property. Women have the same rights to keep alone or share property with other people. Widows have the right to inherit the property of their deceased spouses and the right to look after their children if their spouses die as provided for under the Succession Act Cap 162.

Under Customary law, it is assumed that the welfare of Widows and their children will be taken care of by the deceased’s kin. In Uganda, for example where there is no will, a widow is allowed only 25% of the deceased husband. All children, even if they are illegitimate, are entitled to 75%. In theory this applies to girls as well as boys. However, reports indicate that, in practice, female children may often not inherit.

However, many women particularly widows continue to suffer attempts  by neighbors or relatives to grab their land leaving them with no means of economic gain and hence leading to starvation of the family and failure of children to go to school due to lack of school fees. In addition to that, the divorced or separated women are denied land by their own brothers yet they have children to support. It should be noted that most of the time land is taken in violent means causing injury to people if not deaths. The Constitutional court however, declared Section 27 of the Succession Act which guarantees a widow only 15% of the value of the estate and Rule 8 (a) of the second schedule that provides for a widow’s rights of occupancy only until she remarries unconstitutional but the question remains whether the law will be changed. There is need to put in place legislation that addresses the widow’s share in the entire estate of her deceased husband as was the inheritance of the matrimonial home. The clause that states that the matrimonial home is not part of the estate to be distributed remains contentious since the widow is unable to transfer the title deed of the matrimonial home into her name; it becomes hard for her to use her deceased husband’s title deeds as collateral for a loan. She thus cannot utilize the matrimonial home to generate income for the family.

Fact 7/8/2011: Women’s Rights in Regard to the Family Norm

In 1995 Uganda adopted the Constitution of the Republic of Uganda 1995 which protected a wide range of human rights.  Under chapter 4 of the   Constitution women have the right to be treated equally with men. This includes having equal opportunities as men in every area of life (socially, economically and politically). Women have the same rights as men in regard to owning property. Women have the same rights to keep alone or share property with other people.

As such, no one should take away a woman’s property for no good reason. However, a situation may arise where taking of possession or acquisition is necessary for public use or is in the interest of defiance, public safety, public order, public health and the compulsory taking of possession or acquisition of property is made under a law which makes provision for prompt payment of fair and adequate compensation, prior to the taking of possession or acquisition of the property and a right of access to a court of law by any person who has an interest or right over the property, as provided for under Article 26 of the Constitution.  Widows have the right to inherit the property of their deceased spouses and the right to look after their children if their spouses die as provided for under the Succession Act Cap 162.

Under Article 31 of the Constitution, women of 18 years and above have a right to marry and start a family. The woman and her intended spouse must agree to get married and they both have equal rights in getting married, during marriage and when they decide to end the marriage. Article 32 provides that women have the right to affirmative action, for purposes of redressing the imbalances created by history, tradition or custom. The constitution under Article 33 (6) prohibits any laws, cultures, customs, or traditions which are against the dignity, welfare or interest of women or which undermine their status.

However, many women particularly widows continue to suffer attempts  by neighbors or relatives to grab their land leaving them with no means of economic gain and hence leading to starvation of the family and failure of children to go to school due to lack of school fees. In addition to that, the divorced or separated women are denied land by their own brothers yet they have children to support. It should be noted that most of the time land is taken in violent means causing injury to people if not deaths. The Constitutional court however, declared Section 27 of the Succession Act which guarantees a widow only 15% of the value of the estate and Rule 8 (a) of the second schedule that provides for a widow’s rights of occupancy only until she remarries unconstitutional but the question remains whether the law will be changed. There is need to put in place legislation that addresses the widow’s share in the entire estate of her deceased husband as was the inheritance of the matrimonial home. The clause that states that the matrimonial home is not part of the estate to be distributed remains contentious since the widow is unable to transfer the title deed of the matrimonial home into her name, it becomes hard for her to use her deceased husband’s title deeds as collateral for a loan. She thus cannot utilize the matrimonial home to generate income for the family.

The blame should be laid on customary law; that is to say, cultural norms for the different regions are still backward and discriminatory hence treating women as possessions and denying them rights. Solutions to such problems are among others; to have titles for land. Let everybody have a land title or a certificate such that the land may have the State’s protection; to give automatic co-ownership between the man and woman on the land on which the family lives since the Marriage Act considers married couples to be one person and to own property jointly save for given circumstances; there is need to clearly mark land boundaries such that those who want to grab land do not take advantage of the situation and this can best be done during the process of acquiring certificates for land; there is need for the state to support or acknowledge the role that customary authorities are playing in land administration. And further still the government has to be proactive about improving the situation and policy should be based on evidence and not on preconception.    

Fact 6/8/2011: The procedure through which Government can acquire private land

The Registration of Titles Act Cap 230 governs Land acquisition and leasing of registered land. The seller or lessor of land must be in possession of a certificate of title. A certificate of title in the names of a party is conclusive proof of ownership of the land in question as provided for under the RTA. However, the Land Acquisition Act Cap. 226 governs the compulsory acquisition of land for public purposes in addition to the Constitution of Uganda and the Land Act. Before going into the procedure through which government can acquire land there is need to discuss the reasons as to why Government can compulsorily acquire private land. Government can acquire your land for the following purposes:

 

 

It should be noted that, before Government can acquire your land, it must compensate you without delay, fairly and adequately. (Article 26 of the Constitution and Section 42 of the Land Act)

 

The Procedure

 

1.   The Minister responsible for lands authorize any person to find out the suitability of land for the purpose it is being acquired. This includes surveying the land, digging or boring the land for samples e.t.c. Id damage occurs on the land, Government compensates the land owner for the damage (Section 2 of the Land Acquisition Act).

 

2.   The Minister then makes a declaration by statutory Instrument (by law) that the land is suitable and a copy of the declaration given to the owner of the land (Section 3 of the Land Acquisition Act).

 

3.   The Assessment officer (this is a public officer appointed by the Minister) orders the marking, measuring of the land and a plan of the land to be made (Section 4 of the Land Acquisition Act).

 

4.   A notice of not less than 15 days is given inviting all people having interest in the land to the assessment officer on a day, time and place specified in order to determine the nature of their claims, the amount of compensation to be paid and any objections they may have to the plan for the land use (Section 5 of the Land Acquisition Act).

 

5.   The Assessment officer on the day specified hears the claims and makes an award specifying the true area of the land and the compensation which should be paid to each person having an interest in the land (Section 6(1) of the Land Acquisition Act).

 

6.   Compensation is paid basing on the current market price of the land in the area prepared annually by the District Land Board. (Section 59(1)(e)&(f) of the Uganda Land Act).

 

7.   Any person aggrieved by the award of the Assessment officer may appeal to the District Land Tribunal or the High court if the Value of the land exceeds 50,000,000/= (Section 76 1(b) &(c) of the Land Act)

 

8.   The Uganda Land Commission then pays compensation for the value of the land if no appeal is made to the Courts of law (Section 6(4)(b) of the Land Acquisition Act).

 

9.   It is only after all people having interest in the land have been fully and adequately compensated that Government then takes possession of the land and the land is then managed by the Uganda Land Commission (Section 7 of the Land Acquisition Act, Article 26(2)(b)(i) of the Constitution).

Fact 5/8/2011: Customary Land Tenure and the Right to own Property by Women

Customary tenure is one of the land tenure systems specified in the 1995 Constitution and the Land Act 1998. Under this tenure land is communally owned by a particular group of people in a particular area. Its utilization is usually controlled by elders, clan heads or a group in its own well-defined administrative structures. Over 70% of land in Uganda is held on customary tenure system. In such cases, people own their land, have their rights to it, but don’t have land titles. Some tenants on such land allocate specific areas to themselves with known and defined boundaries usually marked by ridges, trenches, trees etc.

This type of tenure has two broad classifications and these are communal customary tenure predominantly in Northern and parts of Eastern Uganda and individual/family/clan customary tenure prevalent in central, Western, parts of the North and south Western Uganda. Before the 1995 constitution, customary tenure though not legally recognized continued to exist as a system of holding unregistered land by customary rules. Customary tenants could be in occupation of such land by either growing various crops, exercising customary rights to look after animals thereon or by carrying out any other activity thereon as occupiers of such land. The term “Kibanja” became synonymous with occupants of land under customary tenure.

However, one can own customary land while in occupation of mailo land which may be belonging to a different person and may be referred to as a bonafide tenant. Bonafide tenants, who occupy and own the same land under customary tenure are those who have stayed on the piece of land for more than 12 years, according to the Land Act. Many of these are actually the original owners of the land, or it was passed to them from their grandparents. When the British colonialists were established their stronghold in Uganda at the beginning of the 20th century, land in Buganda and some other parts of Uganda was given to the royals, chiefs and colonial administrators as mailo (Ekyapa) as the legal owners and people who were on the land became squatters overnight, supposed to pay Busuulu to the land owners annually. These tenants are also recognised as legal owners, with rights to sell and develop land, but in consultation with the mailo landowner. Although many continue to insist that they are the true owners of the land. The most secure way to acquire land is to buy from the mailo landowner, but he/she must compensate the tenants on the land he/she intends to sell. However, Illegal tenants are those that just settle on mailo land without the landowner’s permission and can be evicted without compensation, but only with adequate notice and having stayed less than 12years.

Land is the most important resource in Uganda because people depend on it for cultivation and therefore their livelihoods. The contemporary land tenure regimes, which generally include a mix of customary, statutory and religious legal arrangements, have their origins in the early colonial period of consolidation in which colonialists left family and community concerns such as land under the jurisdiction of “customary law” and customary courts. After the 1930s the customary tenure arrangements had become an obstacle to changing colonial objectives that now incorporated the promotion of economic growth through agricultural production. The new goals were predicted upon the state’s fostering of the emergence of freehold system and individual property of land ownership. This led to the introduction of private property system which was done through titling and registering land.

It is worth noting that, through this arrangement women lost out because their rights to land through husbands, fathers or sons diminished in importance. By titling and registering land colonial governments colonial governments eliminated the importance of secondary rights of women to access land and men increased their control over land. More so the majority of women are not aware of what the law states with regard to land ownership. They are not informed that they have such rights and must demand for them.

Most women do not even consider themselves as land owners and actually are surprised by such a suggestion. Attempts to improve women’s access to land must be given massive awareness creation, educating women on the existing land laws and policies. Women must also be empowered economically to ensure that they can access land and not just be tied to be small scale farmers. There is need to visualize a situation where women can become large scale producers and this requires them to own large tracts of land which can only be achieved through financial support.

 

Fact 4/7/2011: Land Management in Uganda (Public Land)

Land has become a contentious issue in Uganda. Many incidents on land are happening in Uganda and they call for debate and address from the concerned people.

According to the Constitution of the Republic of Uganda article 237 land belongs to the citizens of Uganda and is vested in them in accordance with the land tenure systems. The same Constitution gives power to the Government to acquire land in public interest and that it shall hold in trust for the people. Under Article 239 the Uganda land commission is given authority to hold and manage any land vested in or acquired by the Government of Uganda.

However, it is realized that of recent, government is giving away large chunks of land to the so-called investors through illegal means. The case in point is land belonging to Uganda Broadcasting Corporation that has issues and in the simple language one may term it as being mismanaged.

The facts as per one of the cases are that; Uganda Broadcasting Corporation as a body corporate having attained the status in 2005 by an Act of Parliament through selective bidding, put up bids and it is assumed that Extreme Innovations through right procedures won the bid and the same was granted the award and was required to pay Shs. 957,454,648/= However, it is established that there was an order from the then Minister of Internal Affairs- Hon. Kirunda Kivejinja directing UBC managers to grant 2 acres of land to Extreme Innovations, and there is a letter to that effect. Before paying the said amount of money, the directors through their engineers learnt that the place was a marsh and that it required lots of money if a building is to be constructed thereon. It is at this moment that Extreme Innovations decided to transfer their interest to Sino East Africa Development. However, there was already a lease agreement between Uganda broadcasting services and Extreme Innovations. On acquiring interests Sino East Africa Development (Chinese) Company paid for the said land and started developing the land.

However, one of the directors of Extreme Innovations stated that they did not sell the land as it is purported in the news and that they did not get any benefit out of this land. But on being asked what it meant to give away what they had not yet paid for she stated that they had lost a lot of money during the bidding process and that Sino East Africa Development had to pay in order to get interest in the land.

Pertinent issues that raise concern are as follows;

All these concerns may be addressed by the Public Procurement and Disposal of Public Assets Act, 2003 (Act No. 1 of 2003) of Uganda. The law was gazetted in January 2003 and brought into effect by the Minister of Finance Planning and Economic Development. The Act set up the Public Procurement and Disposal of Public Assets Authority (PPDA) as the principal regulatory body for public procurement and disposal.

The law is now in operation and all Government departments and other Government-owned bodies are obliged to follow the law. The law emphasizes best practices including procurement and disposal principles, rules, administrative review systems, Codes of Conduct, as well as suspension of providers for offences and disciplinary measures against public officers who commit malpractices.

The law is also complimented by Regulations, Guidelines, Forms and Standard Bidding Documentation. These serve to assist the procuring and disposing entities and providers of services, supplies and works in carrying out procurement and disposal processes.

 

Fact 3/7/2011: Rights of Spouses in Marriage

Under the Marriage Act, the law that governs marriages in Uganda, property rights of married men and women are not clearly spelt out; but under the Constitution of the Republic of Uganda (1995) and the Land Act (1998), both women and men have equal rights to own land and property, either individu­ally or jointly with other people. When they get married they do not lose these rights. It is important to remember that the Constitution is the ultimate guide for property rights in marriage and the following provisions of the Constitution apply to the property rights of both men and women regardless of the type of marriage, as long as that marriage is one that is legally recognized in Uganda:

In addition to that, some provisions of the Land Act specifically protect the property rights of married people. Under the Land Act it is stated that:

Under S.38 (A) of the Land Act as amended it is provided that every spouse has a right to enjoy security of occupancy on family land.  Security of occupancy means the right to have access and live on the family land.  The spouse has the right to use family land and give or withhold consent to any transaction referred to in S. 39 of the Land Act, which may affect his/her rights on the land.  This however excludes the mortgagee’s right to transfer land in exercise of powers under the mortgage.  A purchaser in good faith for value of family land where consent was not given has the right to claim from any person with whom he/she entered into a transaction any money paid or consideration given in respect of the transaction.  A spouse may put a caveat on the certificate of title or certificate of customary Ownership to indicate that the property is subject to the requirement of permission and approval (consent) and this caveat does not lapse as long as the right to security of occupancy subsists.

 

Fact 2/6/2011: Land acquisition and Lawful or Bonafide occupants

The Registration of Titles Act Cap 230 governs Land acquisition and leasing of registered land. Regardless of the land tenure system, the seller or lessor of land must be in possession of a certificate of title. A certificate of title in the names of a party is conclusive proof of ownership of the land in question. However, the Land Act 1998 Cap 227, including the Land Regulations is the principal land tenure legislation in Uganda. The Act contains principles such as rights of “bonafide” and “lawful” occupants who are given security of occupancy on land and rights of children and spouses in cases where land has to be sold, leased, subleased, mortgaged or dealt with in other forms.

According to the Land Act; Section 29 a Lawful occupant means a person occupying land by virtue of the repealed of Busuulu and Envujjo Law, Toro Landlord and Tenant Law, Ankole Landlord and Tenant Law and a person who entered the land with the consent of the registered owner, and includes a purchaser or a person who had occupied land as a customary tenant but whose tenancy was not disclosed or compensated for by the registered owner at the time of acquiring the leasehold certificate of title. Whereas a bona fide occupant means a person who before the coming into force of the Constitution had occupied and utilized or developed any land unchallenged by the registered owner or agent of the registered owner for twelve years or more or has been settled on land by Government or agent of Government, which may include a local authority.

Complications arise by virtue of the complex land tenure systems that exist in Uganda. It is not strange to find for example that three different entities legally enjoy different interest on the same Piece of land for example a Mailo landowner and a leaseholder say a farmer. The farmer will obtain a land Title in respect to the lease. To the common man there will be no difference between the Mailo owner’s Title and the leasehold Title. Both these parties are free to sell their interest in the land and there will be nothing illegal about their transaction although the transaction will have different implications on the purchaser. If a purchaser were to buy the mailo interest, it would mean that he becomes the owner of the land. He also becomes the landlord of the lessee but most important of all, unless he is in the know, he will not take possession of the land until the expiry of the lease granted on the land.

On the other hand, a customary tenant (commonly known as Kibanja holder) may occupy the land. The Lessee in the example above may not have been aware of the presence of a Kibanja holder. Since his lease is for a specified time eg 10 years, his immediate intention would be to occupy the land and commence farming. His immediate reaction is to try and evict the Kibanja holder from the land. This however is not possible as the Kibanja holder is also protected by the law, so he may turn to the registered owner to try and take possession of the purchased land bearing in mind that the owner of land who wishes to sell the reversionary interest in the land shall, give the first option of buying that interest to the tenant by occupancy.

Fact 1/6/2011: Leasehold Land Tenure system in Uganda

Leasehold tenure was created to mean a system of owning land on contract. A grant of land would be made by an owner of freehold or Mailo or by the Crown or Uganda Land Commission to another person for a specified period of time and on certain conditions, which included but limited to payment of rent. The grantee of a lease for a period of 3 years or more would be entitled to a certificate of title.

Under the Land Act, Leasehold tenure is a form of tenure

(a)  created either by contract or by operation of the law;

(b) the terms and conditions of which may be regulated by law to the exclusion of any contractual agreement reached between the parties;

(c)  under which one person, namely the landlord or lessor, grants or is deemed to have granted another person, namely the tenant or lessee, exclusive possession of land usually but not necessarily for a period defined, directly or indirectly, by reference to a specific date of commencement and specific date of ending;

(d)  usually but not necessarily in return for rent which may be for a capital sum known as a premium or for both a rent and a premium but may be in return for services or may be free of any required return;

(e)   Under  which both the landlord and the tenant may, subject to the terms and conditions of the lease and having due regard for the interests of the other party, exercise such of the powers of a freehold owner as are appropriate and possible given the specific nature of a leasehold tenure.

In short, leasehold tenure is created either by contract or operation of the law. The lease agreement sets out terms and conditions for the contracting parties. A direct date of commencement and a termination or expiry date of the leasehold period must be stipulated. In return for the occupation or use of the land, the land or lessor receives rent or premium from tenant.

Leasehold tenure is the optimal tenure available to foreign investors. A foreign investor can acquire a leasehold interest in land for not more than 99 years.

The Registration of Titles Act Cap. 230 governs land acquisition and leasing of registered land. The seller or lessor of land must be in possession of a certificate of title. A certificate of title in the names of a party is conclusive proof of ownership of the land in question.

Key features:

  1. Created by contract or operation of the law
  2. Grant of exclusive possession and use of land to a tenant for an agreed period.
  3. Payment of rent or premium by the tenant to the landlord
  4. Land use and possession is granted for a limited period

Advantages:

Disadvantages

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