Land Act

Chapter 113

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Citation: Chapter 113
Date: 30 November 2019
Language: English
Type: Act

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Land Act

Chapter 113

Commenced on 1 May 2001
[This is the version of this document as it was at 30 November 2019 to 30 June 2020.]
[Note: This legislation has been thoroughly revised and consolidated under the supervision of the Attorney General's Office, in compliance with the Laws Revision Act No. 7 of 1994, the Revised Laws and Annual Revision Act (Chapter 356 (R.L.)), and the Interpretation of Laws and General Clauses Act No. 30 of 1972. This version is up-to-date as at 31st July 2002.]

[Amended by Land (Amendment) Act, 2004 (Act 2 of 2004) on 1 October 2004]
[Amended by Written Laws (Miscellaneous Amendment) (No. 2) Act, 2005 (Act 11 of 2005) on 24 June 2005]
[Amended by Written Laws (Miscellaneous Amendments) Act, 2009 (Act 3 of 2009) on 20 March 2009]
[Amended by Written Laws (Miscellaneous Amendments) Act, 2013 (Act 1 of 2013) on 10 May 2013]
[Amended by Valuation and Valuers Registration Act, 2016 (Act 7 of 2016) on 1 January 2017]
[Amended by Written Laws (Miscellaneous Amendments) Act, 2017 (Act 2 of 2017) on 3 March 2017]
[Amended by Written Laws (Miscellaneous Amendments) Act, 2018 (Act 1 of 2018) on 9 February 2018]
[Amended by Finance Act, 2018 (Act 4 of 2018) on 1 July 2018]

[G.N. No. 484 of 2001; Acts Nos. 4 of 1999; 2 of 2002; 2 of 2004; 12 of 2004; 11 of 2005; 12 of 2008; 17 of 2008; 3 of 2009; 2 of 2010; 7 of 2016; 1 of 2018; 4 of 2018; 17 of 2018]An Act to provide for the basic law in relation to land other than the village land, the management of land, settlement of disputes and related matters.

Part I – Preliminary provisions

1. Short title

This Act may be cited as the Land Act.

2. Interpretation

In this Act, unless the context required otherwise—"access order" means an order made under section 148;"actual notice" means the notice which a person has personally of a matter or action or document or the rights and interests of another person;"Allocations Committee" means the Land Allocations Committee established by section 12;"appointing authority" means the person or organization having the authority under any law to appoint persons to the public service;"assignee" means a person to whom an assignment is made;"Assistant Commissioner" means an Assistant Commissioner appointed under section 11;"authorised officer" means an officer authorised by the Commissioner or the Registrar to perform any functions of the Commissioner or, as the case may be, the Registrar which may be specified in the document of authorisation delivered to that officer;"borrower" means a person who obtains an advance of money or money's worth or agrees to the fulfillment of a condition on the security of a mortgage of his right of occupancy or lease;"building" means any building or other structure made or assembled on, in or under any land and includes the land on, in or under which the building or structure is situate;"caveat" means a notice in the form of an entry on a register that no action of a specified nature in relation to the right of occupancy in respect of which the notice has been entered may be taken without first informing the person who gave the notice;"certificate of approval" means the certificate granted under section 41;"certificate of occupancy" means a certificate issued under section 29;"certificate of validation" means a certificate issued under section 53;"Commissioner" means the Commissioner for Lands appointed under section 9;"communal right of way" has the meaning ascribed to it by section 153;"co-occupancy" has the meaning ascribed to it by section 159;"Council" means the National Land Advisory Council established by section 17;"Court" means anybody established by or under any written law which is referred to in section 167 as having jurisdiction to determine land disputes;"customary law" has the meaning ascribed to it by the Interpretation of Laws Act;[Cap. 1]"customary right of occupancy" includes deemed right of occupancy;"dealing" includes disposition and transmission;"deemed right of occupancy" means a right to title of a Tanzania citizen of African descent or a community of Tanzania citizens of African descent using or occupying land under and in accordance with customary law;"deliver" includes to transmit by post or by hand;"derivative right" means a right to occupy and use land created out of a right of occupancy and includes a lease, a sub-lease, a licence, a usufructuary right and any interest analogous to those interests;"Deputy Commissioner" means a Deputy Commissioner appointed under section 11;"development" means the carrying out of any building operation, engineering operation or mining operation in, on, under or over land or the making of any change of a substantial nature in the use of land;"disposition" means any sale, exchange, transfer, grant, partition, exchange lease, assignment, surrender, or disclaimer and included the creation of an easement, a usufructuary right or other servitude or any other interest in a right of occupancy or a lease and any other act by an occupies of a right of occupancy over that right of right of occupancy or under a lease whereby his rights over that right of occupancy or lease are affected and an agreement to undertake any of the dispositions so defined;"district authority" means a district council, a township authority or a village council;"District Land and Housing Tribunal" means a Court referred to in section 167;"dwelling house" means any house or part of a house or room used as a separate dwelling in any building and included any garden or other premises within the cartilage of a used as a part of the dwelling house as so defined;"easement" has the meaning ascribed to it by section 143;"entry order" means an order made under section 155;"foreign company" means a company classified as a foreign national by the Tanzania Investment Act;[Cap. 38]"Fund" means the Land Compensation Fund established by section 173;"general land" means all public land which is not reserved land or village land includes un occupied or unused village land;"granted right of occupancy" means a right of occupancy granted under and in accordance with Part VI;"hazardous land" means land declared to be hazardous land under section 7;"head lease" means a lease in respect of which a sublease is entered into;"High Court" means the High Court of Tanzania established under Article 108 of the Constitution of the United Republic;"instrument" means a writing including an enactment which creates or affects legal or equitable rights and liabilities and includes any covenant or condition expressed in an instrument or implied in an instrument under this or any other enactment relating to land and, except where otherwise provided, any variation of an instrument;"interest" means a right in or over a right of occupancy;"land" includes the surface of the earth and the earth below the surface and all substances other than minerals and petroleum forming part of or below the surface, things naturally growing on the land, buildings and other structures permanently affixed to or under land and land covered by water;"lease" means a lease or sublease, whether registered or unregistered of a right of occupancy and includes a short-term lease and agreement to lease;"lender" means a person to whom a mortgage has been given as security for the repayment of an advance of money or money's worth or to secure a condition;"lessee" means a person to whom a lease is granted and includes a person who has accepted a transfer or assignment of a lease;"lessor" means a person by whom a lease is granted and includes a person who has accepted the transfer or assignment of the reversion of a lease;"letter of offer" means a letter of offer issued under section 27;"licence" means a permission given by the Government or an occupier of land under a right of occupancy or a lessee which allows the person to whom the licence is given to occupy or use or do some act in relation to the land comprised in the right of occupancy or the lease which would otherwise be a trespass but does not include an easement;"licensee" means the person granting or giving the licence;"lien" means the holding by a lender of any document of title relating to a right of occupancy or a lease as security for an advance of money or money's worth or the fulfillment of a condition;"local government authority" means a district authority or an urban authority;" Minister" means the Minister responsible for land;"mortgage" means an interest in a right of occupancy or a lease securing the payment of money or money's worth or the fulfillment of a condition and includes a submortgage and the instrument creating a mortgage;"occupier in common" has the meaning ascribed to it by section 159;"partition" means the separation by formal legal instrument of the shares in a right of occupancy or a lease held by occupiers in common so that each such occupier takes his shares free of the rights of the others and includes partition carried out in accordance with section 149;"periodic lease" means a lease from year to year, half year to half year, quarter to quarter, month to month, week to week or the like;"peri-urban area" means an area which is within a radius of ten kilometers out-side the boundaries of an urban or semi built up area or within any large radius which may be prescribed in respect of any particular urban area by the Minister""Permanent Secretary" means the Permanent Secretary in the Ministry responsible for land;"Primary land Court" means a Court established by section 167;"public land" means all the land of Tanzania;"public right of way" has the meaning ascribed to it by section 151;"register" means a register prescribed under this Act for the recording of rights and interests in and dispositions, of land in connection with right of occupancy and includes the and register established under the Land Registration Act, and the registry of documents established under the Registration of Documents Act;[Cap. 334; Cap. 117]"registered valuer" means a valuer with a professional or academic qualification in land valuation or with a professional or academic qualification in a subject that includes land valuation;"Registrar" has the meaning ascribed to it by the Land Registration Act, and includes the registrar of documents as appointed and defined in the Registration of Documents Act;[Cap. 334; Cap. 117]"regularisation area" means an area in respect of which a scheme of regularisation has been declared;"reserved land" means land referred to by section 6;"residential licence" has the meaning ascribed to it by section 23;"restrictive agreement" means an agreement by one occupier of land under a right of occupancy restricting the building on or the use or other enjoyment of his land for the benefit of the occupier under a right of occupancy or neighbouring land and includes a restrictive covenant;"right of occupancy" means a title to the use and occupation of land and includes the title of a Tanzanian citizen of African descent or a community of Tanzanian citizens of African descent using or occupying land in accordance with customary law;"Rules Committee" means the Land Court Rules Committee established by section 167;"sale" as used in relation to a right of occupancy, means transfer of an interest in or over land on conditions attached to a granted right of occupancy;[Act No. 2 of 2002]"scheme of regularisation" means a scheme declared by the Minister under section 59;"short term lease" has the meaning ascribed to it by section 80;"small mortgage" has the meaning ascribed to it by section 114;"transfer" means the passing of a right of occupancy, a lease or a mortgage the parties and not by operation of the law and includes the instrument by which such passing is effected;"transferee" means a person who receives the right of occupancy, lease or mortgage passed by an act of transfer;"transfer land" means general or reserved land which is to be transferred from one category of land;"transferor" means the person who passes the right of occupancy, lease or mortgage by an act of transfer;"transmission" means the passing of a right of occupancy, a lease or a mortgage from one person to another by operation of law on death or insolvency or otherwise;"trustee" means a person having a nominal title to the ownership of land or other property which he is under a legal duty to hold for the benefit of some other person or persons and includes a trustee appointed under the Trustees (Incorporation) Act;[Cap. 318]"Trustees" means the Trustees of the Land Compensation Fund established by section 173;"unexhausted improvement" means anything or any quality permanently attached to the land directly resulting from the expenditure of capital or labour by an occupier or any person acting on his behalf and increasing the productive capacity, the utility, the sustainability of its environmental quality and includes trees, standing crops and growing produce whether of an agricultural or horticultural nature;"urban area" means an area within the jurisdiction of an authority established or deemed to have been established under and governed by the Local Government (Urban Authorities) Act and the Local Government (District Authorities) Act;[Cap. 288; Cap. 287]"village council" has the meaning ascribed to it by the Local Government (District Authorities) Act;[Cap. 287]"village land" means the land declared to be village land under and in accordance with section 4 and includes any transfer land transferred to a village;"Village Land Council" has the meaning ascribed to it by section 60 of the Village Land Act;[Cap. 114]"village transfer land" means village land which is to be transferred to become part of general or reserved land;"way leave" has the meaning ascribed to it by section 151.[Act No. 7 of 2016 2nd Sch. Para. 2]

Part II – Fundamental principles of National Land Policy

3. Fundamental principles of National Land Policy

(1)The fundamental principles of the National Land Policy which is the objective of this Act to promote and to which all persons exercising powers under, applying or interpreting this Act are to have regard to, are—

(a)to recognise that all land in Tanzania is public and vested in the President, as trustee on behalf of all citizens;

(b)to ensure that existing rights in and recognised long-standing occupation or use of land are clarified and secured by the law;

(c)to facilitate an equitable distribution of and access to land by all citizens;

(d)to regulate the amount of land that any one person or corporate body may occupy or use;

(e)to ensure that land is used productively and that any such use complies with the principles of sustainable development;

(f)to take into account that an interest in land has value and that value is taken into consideration in any transaction affecting that interest;

(g)to pay full, fair and prompt compensation to any person whose right of occupancy or recognised long-standing occupation or customary use of land is revoked or otherwise interfered with to their detriment by the State under this Act or is acquired under the Land Acquisition Act:[Cap. 118]Provided that, in assessing compensation of land acquired in the manner provided for in this Act, the concept of opportunity shall be based on the following—

(i)market value of the real property;

(ii)disturbance allowance;

(iii)transport allowance;

(iv)loss of profits or accommodation;

(v)cost of acquiring or getting the subject land;

(vi)any other cost loss or capital expenditure incurred to the development of the subject land; and

(vii)interest at market rate will be charged;

(h)to provide for an efficient, effective, economical and transparent system of land administration;

(i)to enable all citizens to participate in decision making on matters connected with their occupation or use of land;

(j)to facilitate the operation of a market in land;

(k)regulate the operation of a market in land so as to ensure that rural and urban small-holders and pastoralists are not disadvantaged;

(l)to set out rules of land law accessibly and in a manner which can be readily understood by all citizens;

(m)to establish an independent, expeditious and just system for the adjudication of land disputes which will hear and determine cases without undue delay;

(n)to encourage the dissemination of information about land administration and land law as provided for by this Act through programmes of public awareness, using all forms of media.

(2)The right of every adult woman to acquire, hold, use, and deal with land shall to the same extent and subject to the same restrictions be treated as a right of any man.

Part III – Classification and tenure of land

4. All land vested in President as trustee

(1)All land in Tanzania shall continue to be public land and remain vested in the President as trustee for and on behalf of all the citizens of Tanzania.

(2)The President and every person to whom the President may delegate any of his functions under this Act, and any person exercising powers under this Act, shall at all times exercise those functions powers and discharge duties as a trustee of all the land in Tanzania so as to advance the economic and social welfare of the citizens.

(3)Every person lawfully occupying land, whether under a right of occupancy wherever that right of occupancy was granted or deemed to have been granted, or under customary tenure, occupies and has always occupied that land, the occupation of such land shall be deemed to be property and include the use of land from time to time for depasturing stock under customary tenure.

(4)For the purposes of the management of land under this Act and all other laws applicable to land, public land shall be in the following categories—

(a)general land;

(b)village land;

(c)reserved land.

(5)A grant of a right of occupancy shall be made in the name of the President and shall be sealed with a seal of a nature and pattern which the President may, by order, published in the Gazette approve.

(6)Nothing in this section shall be construed to affect the validity of any right of occupancy lawfully granted or deemed to have been granted or consented to, under the provisions of any law in force in Tanzania before the commencement of this Act.

(7)The President may, subject to the provision of this part, by order published in the Gazette, transfer or exchange land from one category of land described in subsection (4) to another category of land so described.

5. Transfer of general or reserved land to village land

(1)Where the President is minded to transfer any area of general or reserved land to village land he may direct the Minister to proceed in accordance with the provisions of this section.

(2)The Minister shall cause to be published in the Gazette and sent to the Village Council of the village to which general or reserved land may be transferred, hereinafter referred to as (transferred land) a notice specifying—

(a)the location of the transferred land;

(b)the boundaries and extent of the transferred land;

(c)a brief statement of the reasons for the proposed transfer;

(d)the date, being not less than sixty days from the date of the publication of the notice, on which the President may exercise his powers to transfer the transferred land or part of it.

(3)Where the transferred land is—

(a)reserved land, a copy of the notice shall be sent to—

(i)the Minister responsible for that reserved land; or

(ii)where a local authority is responsible for that land, to that local authority; and

(iii)where there are any persons occupying and using that land, to those persons in a manner and form that will enable them to understand the information contained in the notice;

(b)general land, a copy of the notice shall be served on—

(i)the local authority in whose area the land is situate;

(ii)the holder of any right of occupancy in that land;

(iii)the holder of any derivative right in that land;

(iv)any person occupying or using that land under customary law,

and in the case of the persons referred to in subparagraphs (ii), (iii) and (iv) the notice shall be in a manner and form that will enable those persons to understand the information contained in the notice.

(4)Any person who has received a notice under subsection (3) may, within not less than twenty nor more than forty days from the date of the receipt of the notice, make representations to the Commissioner or an authorized officer who shall be under a duty to hear and record the representations and take them into account in any report prepared for the President on the proposed transfer.

(5)The Commissioner shall, after taking account of any representations received under subsection (4), prepare a report for the Minister to submit to the President on the proposed transfer.

(6)Where the subject of a report referred to in subsection (5) is reserved land, a copy of the report shall be conveyed to the Minister responsible for that reserved land.

(7)Where a granted right of occupancy exists in any transferred land or a part thereof, a transferred land shall, unless the instrument of transfer provides otherwise, operate as a compulsory acquisition of that right of occupancy and compensation on it shall be payable.

(8)Where persons are occupying and using the general transferred land a part of it under a customary right of occupancy, the transfer of that land to village land shall not, of itself, operate to determine or affect the rights of such persons to continue to occupy and use that land under that customary right of occupancy but that land shall, after the transfer, be under the jurisdiction of the Village Council of the village to which the land has been transferred.

(9)After receiving the report of Commissioner prepared under subsection (5) and any representations made by the Minister in any case to which subsection (6) applies, the President may exercise his power to transfer the transferred land or a part of it, and allocate that land to a village named in the document of transfer.

(10)The President may direct the Minister to appoint an inquiry under section 18 into a proposed transfer under this section and where such an inquiry has been appointed, no further action shall be taken on the proposed transfer until the inquiry has reported.

(11)A transfer of general or reserved land to village land shall be notified in the Gazette and shall come into effect thirty days after the date of the publication of the notice.

(12)Village land may be transferred to general land in accordance with the provisions of the Village Land Act.[Cap. 114]

6. Categories of reserved land

(1)Reserved land is—

(a)land reserved, designated or set aside under the provisions of the—

(i)Forests Act;[Cap. 323]

(ii)National Parks Act;[Cap. 282]

(iii)Ngorongoro Conservation Area Act;[Cap. 284]

(iv)Wildlife Conservation Act;[Cap. 283]

(v)Marine Parks and Reserves Act;[Cap. 146]

(vi)Urban Planning Act;[Cap. 355]

(vii)Roads Act;[Cap. 167]

(viii)Public Recreation Grounds Act;[Cap. 320]

(ix)Land Acquisition Act;[Cap. 118]

(b)land parcel within a natural drainage system from which the water resource the concerned drainage basin originates;

(c)land reserved for public utilities;

(d)land declared by order of the Minister in accordance with the provisions of this Act to be hazardous land.

(2)Where a right of occupancy has been acquired, revoked or surrendered in general land which is within or contiguous to an area of reserved land, the President may declare that general land to be reserved land of the same nature and subject to the same law as the reserved land of which it has, by that declaration, become a part.

7. Declaration of hazardous land

(1)For the purposes of this Act, hazardous land is land the development of which is likely to pose a danger to life or to lead to the degradation of or environmental destruction on that or contiguous land and includes but is not limited to—

(a)mangrove swamps and coral reefs;

(b)wetlands and off-shore islands;

(c)land designated or used for the dumping of hazardous waste;

(d)land within sixty metres of a river bank or the shoreline of an inland lake, beach or coast;

(e)land on slopes with a gradient exceeding any angle which the Minister shall, after taking account of proper scientific advice, specify;

(f)land specified by the appropriate authority as land which should not be developed on account of its fragile nature or of its environmental significance.

(2)The declaration of any land to be hazardous land shall be in accordance with the provisions of this section.

(3)Where the Minister considers that an area of land should be declared to be hazardous land, in this section referred to as "proposed hazardous land" he shall publish a notice in the Gazette specifying—

(a)the location of the proposed hazardous land;

(b)the boundaries and extent of the proposed hazardous land;

(c)a brief statement of the reasons for the proposed declaration;

(d)the date, being, not less than sixty days from the date of the publication of the notice, when declaration may be made.

(3A)¹For the purpose of subsection (3) "Gazette" includes official Gazette or local newspapers.

(4)A copy of the notice referred to in subsection (3) shall be—

(a)saved on all persons occupying and using the proposed hazardous land in a manner and form as will be understandable to those persons;

(b)saved on all local authorities having jurisdiction in the area of the proposed hazardous land;

(c)put up in conspicuous places within the area of the proposed hazardous land.

(5)All persons and authorities on whom a notice has been served and all persons and organisations on whom a notice should have been served but was not and any other person or organisation with an interest in land may, within not less than thirty days after the date of the service of the notice, make representations to the Commissioner on the proposed declaration and the Commissioner shall be under a duty to hear and record the representations and take them into account in determining whether to recommend to the Minister that the land or any part of it be declared to be hazardous land.

(6)Where the Minister, after considering a report prepared by the Commissioner under subsection (5), determines that the proposed hazardous land or a part of it shall be declared to be hazardous land, he may, subject to subsection (7), make a declaration accordingly.

(7)Where the proposed hazardous land or a part of it is occupied and used by any person under a granted or customary right of occupancy, the Minister shall, if he considers that that land or a part of it should be declared to be hazardous land, report the matter to the President.

(8)The President may, after considering the report of the Minister, declare any land to which subsection (7) applies to be hazardous land and any such declaration shall operate to compulsorily acquire, subject to compensation, any right of occupancy in that land.

(9)A notice of a declaration of hazardous land shall be published in the Gazette in the manner provided for under sections 169 and 170 of this Act and shall come into force thirty days after the date of the publication of the notice.[Cap. 4 s. 8]¹ Note: The contents of subsection (3A) have been designated as such after rearrangment

Part IV – Administration

8. Minister’s responsibilities

The Minister shall be responsible for policy formulation and for ensuring the execution by officials in the Ministry of the functions connected with the implementation of the National Land Policy and of this Act which are allocated or delegated to him by the President and in pursuance of this responsibility, the Minister may—

(a)give any advice, guidance and directives to the officials in the ministry which will in his opinion be conducive to the efficient effective, economical, impartial and transparent administration of land under this Act;

(b)seek advice from any official in the Ministry concerning implementation of the National Land Policy and of the administration of land under this Act;

(c)seek advice from other knowledgeable persons concerning the administration of land and the implementation of this Act;

(d)take all other necessary actions decisions which will enable him to discharge all the functions which are allocated or delegated to him by the President in connection with the implementation of National Land Policy and of the administration of land under this Act.

9. Appointment of Commissioner for Lands

(1)There shall be a Commissioner for Lands who shall be appointed by the President.

(2)In appointing the Commissioner, regard shall be had to the need to appoint a person of proven probity with qualifications skill and practical experience in land management or law in the public or private sector.

10. Functions of Commissioner

(1)The Commissioner shall be the principal administrative and professional officer of, and adviser to, the Government on all matters connected with the administration of land and shall be responsible to the Minister for the administration of this Act and the matters contained in it.

(2)The President may, by notification in the Gazette, delegate any of the specific functions under this Act which are vested in him, in accordance with any terms and conditions which he sees fit, to the Commissioner.

(3)The President may, through the Minister, give directives in writing to the Commissioner concerning the proper discharge by the Commissioner of the functions conferred by this Act on the President which the President has, under subsection (2), delegated to the Commissioner and the Commissioner shall comply with those directives.

(4)The Commissioner may from time to time, as he sees fit, issue and publish circulars and directives on the administration of this Act but no such circulars or directives shall purport to alter, amend or depart from the provisions of this Act or any regulations made under this Act or contradict any advice, guidance or directives issued by the Minister under section 9.

(5)Where the Commissioner is required or empowered by this Act to make a determination affecting or likely to affect the rights of any person or the opportunity for any person to exercise any powers conferred on that person by this Act the Commissioner shall, where he makes a determination which is adverse to that person give that person reasons for that determination.

(6)The Commissioner shall prepare and publish an annual report on the management of land for which he is responsible and each report shall include all directives given to the Commissioner under subsection (3) together with a brief statement of the action taken to comply with any of those directives.

11. Appointment of officers

There shall be appointed a Deputy Commissioner of Lands and one or more Assistant Commissioners and, after obtaining the advice of the Commissioner, any other officers whom the appointing authority shall consider necessary.[Please note: numbering as in original.]

(2)In appointing officers under subsection (1) of this section, regard shall be had to the need to appoint a person of proven probity with qualifications, skill and practical experience in land management or law in the public or private sector.

(3)Officers appointed under this section shall be allocated any functions and shall be located in any offices in any areas as the Commissioner considers will contribute to the proper management of land.

(4)Officers appointed under this section shall be subject to the directions of and answerable to the Commissioner.

(5)Functions vested in the Commissioner by this or any other legislation may be exercised by any officers whom the Commissioner shall, on any terms as he may specify in writing, authorise to do so and those officers shall be referred to as "authorized officers".

(6)Where the Commissioner delegates any of his functions connected with the signing and execution of rights of occupancy, that delegation shall—

(a)be to a named officer;

(b)be published in the Gazette;

(c)not take effect until publication in the Gazette.

(7)Any local authority officer or officer appointed to and working in any other public organisation allocated any functions relating to land arising out of or under or in connection with this Act by that local authority or other public organisation shall comply with any directives of the Commissioner issued to him specifically or generally, and shall have regard to any circulars issued by the Commissioner.

(8)All Courts, judges and persons acting judicially shall take judicial notice of the Commissioner and any person to whom he has delegated his functions under subsection (6).

12. Land Allocations Committees

(1)The Minister shall establish committees at appropriate levels of Government to be called the Land Allocations Committees to advise the Commissioner on the exercise of his power to determine applications for rights of occupancy.

(2)The land Allocations Committee shall be composed of any persons with any tenure of office which the Minister shall by regulations made under section 179 of this Act prescribe and may, subject to the approval of the Minister concerned, include officials from any other Ministry.

(3)Land Allocations Committees shall be established at Central, Urban and District Authorities.

(4)The names of the members of the Land Allocations Committees shall be published in the Gazette and posted up in the Ministry's headquarters and district offices.

13. Information from Commissioner to members of public

(1)The Commissioner and all officers appointed under this Act shall, where it is practical to do so, provide information and guidance of a general character either orally or in writing, to members of the public in connection with land matters and the implementation of this Act.

(2)Where the information required, to be provided under subsection (1) is of confidential character, regard shall be given to the provisions of the National Security Act.[Cap. 47]

(3)Subject the provisions of section 15, unless otherwise specifically stated in writing and signed by the Commissioner or an authorized officer information, guidance, advice and assistance provided under this section shall not create any legal liability in the Government, the Commissioner or the officer giving the advice and assistance.

14. Functions and roles of local government authorities under this Act

(1)A local government authority, shall not, unless specifically authorised by this Act or any regulation made under the Authority of this Act, make an offer of or grant any right of occupancy to any person or organisation and any such purported offer or grant shall be void.

(2)No officer of a local government authority, other than an officer authorized by this Act or in writing by the Commissioner shall make or sign an offer of a right of occupancy and any such purported offer shall be void.

(3)A local government authority, acting through a duly constituted committee or through duly appointed offices may make representations in writing or orally to the Commissioner on any matter connected with the administration of land under this Act situate within their area of jurisdiction and the Commissioner shall have regard to that representation.

(4)A District Council may provide advice and guidance to any Village Council situate within its area of jurisdiction concerning the administration by the that Village Council of village land, either in response to a request for such advice and guidance from a Village Council or of its own motion and any Village Council to which such advice and guidance is given, shall have regard to such advice and guidance.

(5)No advice and guidance given by a Village Council under subsection (4) shall contradict or conflict with any directive or circular issued by the Commissioner under subsection (4) of section 10.

(6)Where a local government authority receives an application for a granted right of occupancy, it shall forward that application to the Commissioner and may include comments and recommendations about that application which it considers appropriate and the Commissioner shall have regard to the comments and recommendations received.

(7)The Commissioner shall use his best endeavours to ensure that all local government authorities and associations of local authorities are consulted and kept informed about the administration of land under this Act and all other laws connected with the administration of land.

15. Conflict of interests

(1)Where any matter concerning land in which any officer exercising functions under this Act or any member of his immediate family has an interest is allocated to, referred to or otherwise comes to that officer for his advice, assistance or decision, that officer shall not exercise any functions under this Act in respect of that land.

(2)Where the officer referred to in subsection (1) is the Commissioner, he shall declare his interest to the Permanent Secretary, and where the officer referred to in subsection (1) is an officer appointed under section 11, shall declare his interest to the Commissioner and the Permanent Secretary or the Commissioner, as the case may be, shall appoint some other officer to exercise functions under the Act in respect of that land.

(3)Where any land is advertised or offered for a right of occupancy in pursuance of any provision of this Act, any officer exercising functions under this Act who wishes to apply for or bid for that right of occupancy or who has knowledge that any member of his immediate family wishes to apply for or bid for that right of occupancy shall forthwith inform the Commissioner or if he is the Commissioner, inform the Permanent Secretary and such officer or the Commissioner, as the case may be, shall not exercise any functions in respect of that land.

(4)A person to whom subsection (1), (2) or (3) applies shall not influence or seek or attempt to influence any officer exercising functions under this Act or any other legislation to show any undue favour or preference to him or any member of his immediate family in respect of the land the subject of the declaration of interest under subsection (1) or advertised or offered for a right of occupancy under subsection (3).

(5)Any person exercising functions under this Act to whom this section applies who contravenes any of the provisions of this section shall render himself liable to disciplinary proceedings in accordance with the Public Service Regulations and including dismissal from the public service with reduction or loss of pension entitlements.[G.N. No. 168 of 2002]

(6)Where a conflict of interest as described in subsection (1) or subsection (3) arises in respect of the administration of village land, any member of a Village Council or a committee of the council dealing with land who is covered by any such description shall declare his conflict of interest and shall take no further part in nor attend any meeting of the Village Council or its committee where the land of which the subject of the conflict of interest is on the agenda, and the person who fails to declare his conflict of interest or who contravenes the provisions of subsection (4) shall render himself liable to—

(a)criminal proceedings;

(b)forfeiture of any benefits which he or any member of his immediate family have or may have obtained as a result of any contravention of this section.

(7)In this section "immediate family" means, any other person related to that person as a father or mother, son or daughter, wife or husband, and brother or sister whether born in or out of wedlock, whether born in or outside Tanzania, and where any person referred to above has had more than one spouse, shall include all those spouses.[Cap. 4 s. 8]

16. Protection of officers

No officer appointed under this Act shall be personally liable for any act or matter done or ordered to be done or omitted to be done by him in good faith and without negligence and in the intended or purported exercise of any power, or the performance of any duty, conferred or imposed on or allocated or delegated to him by or under this Act.

17. National Land Advisory Council

(1)There is hereby established a National Land Advisory Council which shall have not less than seven members and not more than eleven members appointed by the Minister and the Chairman of the Council shall be appointed by the President.

(2)In appointing members to the Council, the Minister shall have regard to the importance of ensuring a fair balance of men and women in the Council.

(3)The composition and procedures of the Council shall be as provided for in the regulations made under this Act.

(4)The functions of the Council shall be—

(a)to review and advise the Minister on the National Land Policy and recommend changes where necessary; and

(b)to review institutional framework and advise the Minister on jurisdiction and organisational structures of the institutions involved in land matters.

18. Inquiries

(1)The Minister may, for any purpose for which he thinks fit, appoint one or more persons to hold an inquiry into any matter concerning land or arising out of the operation of this Act.

(2)Where the Minister considers that the matters to be inquired into are so serious that it would be desirable that a judge of the High Court hold the inquiry, he shall seek and act on the advice of the Chief Justice as to the judge who shall hold the inquiry.

(3)Every inquiry shall be held at any time, being not less than one month from the date of the notification of the holding of an inquiry, and place which the Minister shall direct.

(4)Every inquiry shall be open to the public provided that the person holding or chairing the inquiry may for good cause certify in writing that any particular evidence which the inquiry wishes to hear shall be taken in private.

(5)Every person whose conduct is or may be called into question at an inquiry shall be entitled to be represented at and heard by the inquiry.

(6)An inquiry shall be conducted in accordance with the principles of natural justice, but subject to that, the person holding or chairing the inquiry shall exercise his own discretion in determining the procedures of the inquiry.

(7)The person holding or chairing the inquiry shall have all the powers of a judge of the High Court to summon witnesses, call for the production of books, plans and documents and to examine witnesses and parties on oath.

(8)The inquiry shall be deemed to be a judicial proceeding for purposes of sections 102 to 110, 114 and 114A of the Penal Code.[Cap. 16]

(9)The person or persons holding the inquiry shall, as soon as may be after the conclusion of the hearing, prepare and submit to the Minister a report of the inquiry which shall include any advice and recommendations to the Minister which the terms of reference for the inquiry require or which the person or persons aforesaid think necessary to make.

(10)The report of the inquiry shall be published and the defence of qualified privilege shall attach to that report.

Part V – Rights and incidents of land occupation

19. Rights to occupy land

(1)The rights to occupy land which a citizen, a group of two or more citizens whether formed together in an association under this Act or any other law or not, a partnership or a corporate body, in this Act called "right holders" may enjoy under this Act are hereby declared to be—

(a)granted right of occupancy;

(b)a right derivative of a granted right of occupancy, in this Act called a derivative right;

(2)A person or a group of persons, whether formed into a corporate body under the Companies Act or otherwise who is or are non-citizens, including a corporate body the majority of whose shareholders or owners are non-citizens, may only obtain—[Cap. 212]

(a)a right of occupancy for purposes of investment approved under the Tanzania Investment Act;[Cap. 38]

(b)a derivative right for purposes of investment approved under the Tanzania Investment Act or issued under the Export processing Zones Act; or[Cap. 373]

(c)an interest in land under a partial transfer of interest by a citizen for purposes of investment approved under the Tanzania Investment Act or issued under the Export processing Zones Act in a joint venture to facilitate compliance with development conditions.

(3)The provisions of subsection (2) shall not apply to —

(a)a not-for-profit foreign or local corporation or organization of the relief of poverty or distress of public or provision of health or other social services for the advancement of religion or education under an agreement to which the Government of United Republic is a party, and where no such agreement exists, the Minister is satisfied that such corporation or organization is established solely for the purpose of the relief of poverty or distress for the public, or for provision of health or other social services or for the advancement of religion or educations;

(b)a foreign Government, an institution wholly owned by a foreign Government, an International Institution or organization.

(4)Subject to the provisions of subsection (3), the provisions of sections 47, 48 and 49 shall apply mutatis mutandis where there is a breach of agreement.[Acts Nos. 2 of 2004 s. 3; 12 of 2004 Sch.]

20. Occupation of land by non-citizen restricted

(1)For avoidance of doubt, a non-citizen shall not be allocated or granted land unless it is for investment purposes under the Tanzania Investment Act.

(2)Land to be designated for investment purposes under subsection (1), shall be identified, gazetted and allocated to the Tanzania Investment Centre which shall create derivative rights to investors.

(3)For the purposes of compensation made pursuant to this Act or any other written law, all lands acquired by non-citizens prior to the enactment of this Act, shall be deemed to have no value, except for unexhausted improvements for which compensation may be paid under this Act or any other law.

(4)For the purposes of this Act, any body corporate of whose majority shareholders or owners are non-citizens shall be deemed to be non citizens or foreign companies.

(5)At the expiry, termination or extinction of the occupancy or derivative right granted to a non-citizen or a foreign company, reversion of interests or rights in and over the land shall vest in the Tanzania Investment Centre or any other authority as the Minister may describe in the Gazette.[Cap. 38; Act No. 2 of 2004 s. 4]

21. Ceiling on land occupancy

(1)The Minister shall make regulations prescribed under section 179 of this Act providing for an area of land that a person can hold under single right of occupancy or derivative right or in any way otherwise disposed of to any person or body corporate.

(2)The regulations made under the provisions of section 179 and subsection (1) of this section shall provide for consultation in determining land ceilings under this section.

22. Incidents of granted right of occupancy

(1)A granted right of occupancy shall be—

(a)granted by the President;

(b)in general or reserved land;

(c)of land which has been surveyed;

(d)required to be registered under the Land Registration Act, to be valid and, subject to the provisions of that law and this Act, indefeasible;[Cap. 334]

(e)for a period up to but not exceeding 99 years;

(f)at a premium;

(g)for an annual rent which may be revised from time to time;

(h)subject to any prescribed conditions;

(i)capable of being the subject to the subject of dispositions;

(j)liable, subject to the provisions this Act, to revocation;

(k)liable, subject to the prompt payment of full compensation, to compulsory acquisition by the state for public purposes.

(2)A granted right of occupancy shall not confer on the holder any water rights or rights over the foreshore unless those rights are expressly mentioned nor shall it confer on the holder or any person acting under the authority of the holder any rights to mines, minerals, or gas or the right to appropriate and remove from the country for gain or for purposes of research of any kind any flora or fauna naturally occurring or present on the land or any palaeontological or archaeological remains found on the land.

23. Residential licence and its incidents

(1)A derivative right, in this Act referred to as a residential licence, confers upon the licensee the right to occupy land in non-harzadous land, land reserved for public utilities and surveyed land, urban or peri-urban area for the period of time for which the residential licence has been granted.

(2)Any person who at the commencement of this Act, has, without any official title, acquired and occupied as his home for not less than three years, land in an urban or peri-urban area other than land held for a granted or customary right of occupancy or as a tenant of a person so holding land or land to which subsection (2) of section 51 applies, shall by virtue of this Act be deemed to occupy that land as a residential licensee under a licence granted from year to year to that person by the local authority having jurisdiction in the area where that land is situate.

(3)Subject to the provisions of this Act a residential licence may be granted by a local authority—

(a)to any person occupying land without official title or right within the area of jurisdiction of that local authority as his home;

(b)for a term which shall be not less than six months but not more than five years which may be renewed for a similar term;

(c)subject to any conditions, including conditions as to the payment of any fees or charges which may be specified in the licence or which may be prescribed.

(4)A residential licence shall not be assignable by the licensee.

(5)A residential licence shall bind the successor in title to the licensor who obtains the land with actual or constructive notice of the licence.

(6)Where a person or family has occupied land in the same location under a residential licence for not less than three years, he or they shall be entitled to compensation under the Land Acquisition Act, where that land is to be acquired for a public purpose or where that person or family is to be removed from the land as if that person or family had a right of occupancy in the land and section 12 and Part III of that Act did not apply to that land.[Cap. 118; Act No. 3 of 2009 s. 44]

Part VI – Granted rights of occupancy

Sub-Part 1 Grant of right of occupancy

24. Application of this Part

This Part applies to granted rights of occupancy hereafter referred to as "rights of occupancy".

25. Procedure for application for right of occupancy

(1)An application for a right of occupancy shall—

(a)be submitted on a prescribed form and accompanied by a photograph;

(b)be accompanied by the prescribed fee;

(c)be signed by the applicant or a duly authorised representative or agent of the applicant;

(d)be sent or delivered to the Commissioner or an authorised officer;

(e)contain or be accompanied by any information which may be prescribed or which the Commissioner may in writing require the applicant to supply;

(f)be accompanied by a declaration in the prescribed form of all rights and interests in land in Tanzania which the applicant has at the time of the application;

(g)where any law requires the consent of any local authority or other body before an application for a right of occupancy may be submitted to the Commissioner, be accompanied by a document of consent, signed by the duly authorised officer of that local authority or other body; and

(h)if made by a non-citizen or foreign company, be accompanied by a Certificate of Approval granted by the Tanzania Investment Centre under the Tanzania Investment Act, and any other documentation which may be prescribed by that Act or any other law.[Cap. 38]

(1A)²Where an application for a right of occupancy or a derivative right, which is made by a non-citizen or a foreign company, is for residential purposes, the use of such land shall be secondary or ancillary to the investment approved under the Tanzania Investment Act.[Cap. 38]

(2)The Commissioner may require an applicant to submit information relevant to that application, additional to that already submitted with the application, and shall not be obliged to determine the application until that additional information has been submitted or a satisfactory explanation provided as to why it is not practical or possible to submit that additional information.

(3)Where an application is for a right of occupancy in reserved land, the Commissioner shall refer that application to the official or the public body having jurisdiction over that reserved land and shall take account of any representations that such official or such public body shall make on that application.

(4)Where an application is for a right of occupancy the development of which in accordance with the application will have, in the opinion of the Commissioner, a substantial effect on the activities and services provided by the local authority in the area where the land the subject of the right of occupancy is situate, the Commissioner shall refer that application to that, local authority and shall take account of any presentations made by that local authority on that application.

(5)Any official to whom or public body or local authority to which an application is referred under subsection (3) or (4) may make any such representations on that application within twenty days of the receipt of that application.

(6)The Commissioner shall maintain a register of applications in the prescribed form which shall be available to inspection by the members of the public at reasonable times during office hours.[Cap. 4 s. 8]² Note: Section 25(1) is rectified to make proper grammatical flow of the subsection and the paragraphs under it. The contents of paragraph (i), which appeared to be an independent provision, have been redesignated as subsection (1A)

26. Determination of application by Commissioner

(1)The Commissioner shall be responsible for determining any application for a right of occupancy under the provisions of section 29.

(2)Where the power to recommend whether a right of occupancy be granted has been allocated or delegated to a local authority or other body by or under this Act or any other law, the Commissioner shall, in any case—

(a)if he approves the recommendation, act on it;

(b)if he is disposed to reject the recommendation, return it to the local authority or other body which made the recommendation with a statement of his reasons for rejecting that recommendation and a request for that local authority or other body to reconsider its recommendation.

(3)Where a local authority or other body has reconsidered a recommendation referred back to it under paragraph (b) of subsection (2), and submits the same or a substantially similar recommendation to the Commissioner, he shall either—

(a)act on that recommendation; or

(b)reject that recommendation and inform the local authority or other body of his reasons for so rejecting that recommendation.

(4)The Commissioner may determine whether to—

(a)grant subject to the conditions set out in section 34 and any other conditions which may be prescribed in the right of occupancy;

(b)grant subject to those conditions and any additional condition which he considers necessary or desirable endure the beneficial occupation and use of the land the subject of the right of occupancy;

(c)grant subject to any conditions as he may be asked to impose by any public authority having jurisdiction over any reserved land in respect of which an application for a right of occupancy has been made;

(d)grant, subject to any conditions which he may be asked to impose by any local authority having jurisdiction over the area where the land the subject of the application is situate; or

(e)reject the application for a right of occupancy.

(5)Any person aggrieved by a decision made under this section shall appeal to the Minister.[Act No. 17 of 2008 s. 4]

27. Repealed

Repealed by Act No. 17 of 2008, s. 5.

28. Repealed

Repealed by Act No. 17 of 2008, s. 5.

29. Grant of right of occupancy

(1)Where the Commissioner determines to grant a right of occupancy to a person who—

(a)has applied for grant of a right of occupancy;

(b)is in occupation of land under a right of occupancy or under an acceptance of an offer of a right of occupancy; or

(c)is otherwise entitled to a right of occupancy,

he shall issue a certificate referred to as a "certificate of occupancy" to that person.

(2)A certificate of occupancy shall be issued in the name of the President and shall be in a prescribed form.

(3)A certificate of occupancy shall be deemed to be duly and validly executed if it is signed by the Commissioner and sealed with his official seal and purports to be signed and sealed by the President and further proof of such execution shall not be required for the purpose of registration under the Land Registration Act.[Cap. 334]

(4)The occupier to whom a certificate of occupancy is issued shall sign at the bottom of the certificate as acceptance of the terms and conditions of that certificate and no certificate of occupancy shall be valid or give rise to any liabilities on the part of the state or any rights on the part of the occupier to whom the certificate has been issued until it is so signed.[Act No. 17 of 2008 s. 6]

30. Repealed

Repealed by Act No. 17 of 2008, s. 7.

30A. Saving provisions

Notwithstanding the amendment and repeal of sections 26, 27, and 28 an offer of a right of occupancy issued before the 1^st December, 2008 shall continue to be valid for all purposes and shall have the force of law applicable to it as if sections 26, 27 and 28 had not been amended or repealed as the case may be.[Act No. 3 of 2009 s. 45; Cap. 4 s. 8]

Sub-Part 2 Conditions on right of occupancy

31. Payment of premium on grant of right of occupancy

(1)The Minister may require the payment of a premium on the grant of a right of occupancy.

(2)A premium shall be paid in one or more installments as may be determined by the Minister.

(3)In determining the amount of a premium, the Minister shall have regard to—

(a)the use of the land permitted by the right of occupancy which has been granted;

(b)the value of the land as evidenced by sales, leases, and other dispositions of land in the market in the area where the right of occupancy has been granted, whether those sales, leases and other dispositions are in accordance with this Act or any law relating to land which this Act replaces;

(c)the value of land in the area as evidenced by the price paid for land at any auction conducted by or on behalf of the government;

(d)the value of land as evidenced by the highest offer made in response to a request made by or on behalf of the government, a local authority or parastatal for a tender for the development of land in the area;

(e)any unexhausted improvements on the land;

(f)an assessment by a registered valuer given in writing of the value of land in the open market.

(4)Where the payment of a premium is required, a demand for that payment shall be sent or delivered to the person to whom the certificate of occupancy is to be sent or delivered at the same time as or before the certificate of occupancy is sent or delivered to that person.

(5)Failure to pay a premium or any installment on the date at which the payment of that premium or installment falls due shall be deemed to be a breach of a condition of the right of occupancy which shall give rise to revocation of a right of occupancy.[Act No. 7 of 2016 2nd Sch. Para. 2]

32. Length of term of right of occupancy

(1)A right of occupancy may be granted—

(a)for a term up to but not exceeding ninety nine years;

(b)for a term together with an option for a further term or terms which together with the original term may be up to but shall not exceed, ninety nine years;

(c)from year to year or for periods of less than a year determinable by the Commissioner by one year's notice or less, whether or not the grant includes an initial fixed term, so long as that initial fixed term does not exceed four years.

(2)Where a right of occupancy has been granted for a term certain, with or without an option for a further term or terms certain, no reduction in the length of that term certain or the term or terms certain contained in the option or options shall be made to or introduced into that right of occupancy by the Commissioner without the agreement of the occupier.

(3)Where a right of occupancy comes to an end through affliction of time, the person or organisation occupying the land under that right of occupancy shall, if he has complied with the terms and conditions of that right of occupancy in a satisfactory manner and it is practical so to do, be offered a renewal of that right of occupancy on any terms and conditions which the Commissioner may determine before that right of occupancy is offered to any other person or organisation.

(4)The provisions of subsection (3) shall not operate to preclude the Government or a local authority or other public body from causing the land occupied under the right of occupancy to which subsection (3) refers to be developed or redeveloped in such a way that it is impractical to grant a right of occupancy of that land to the former holder of that right of occupancy and where such development or redevelopment takes place, the former holder of the right of occupancy shall not be entitled to any compensation for the loss of any expectation created by the provisions of subsection (3).

33. Rent

(1)The holder of a right of occupancy shall, subject to the provisions of this section pay an annual rent for that right of occupancy in the manner provided for under the provisions of the Public Finance Act.

(2)Rent shall be paid in any installments and at any intervals of time during the year as the Commissioner shall determine or which is provided in the certificate of occupancy.

(3)Rent shall be paid to the Commissioner or an authorized officer at the office of the Commissioner or any other place which the Commissioner determines or which may be prescribed.

(4)In determining the amount of any rent, the Commissioner shall have regard to—

(a)the area of the land which is the subject of the right of occupancy;

(b)the use of land permitted by the right of occupancy which has been granted;

(c)the value of land as evidenced by sales, leases and other dispositions of land in the market in the area where the right of occupancy has been granted, whether those sales, leases and other dispositions are in accordance with this Act or any law relating to land which this Act replaces;

(d)where the right of occupancy has been granted for any commercial or residential development in any urban or peri-urban area and there has been no such development in that area or no or insufficient sales, leases or other dispositions of land or no, or insufficient evidence of the same in that area from which an assessment of the value of land may be arrived at, an assessment by a registered valuer of the value of land in the open market in that area which may be developed for the purpose for which the right of occupancy has been granted;

(e)the amount of any premium required to be paid on the grant of a right of occupancy.

(5)For the purpose of computing the rent payable in respect of any land in connection with any sub-divisions, partition, amalgamation or any other transaction which reduces the area of the land after the determination of the rent for that land, the Commissioner shall, where two or mom plots of land are created out of the land for which the rent was determined, apportion the rent payable between the two or more plots of land in the same proportion as the two or more plots of land bear to the whole of the land for which the rent was originally determined.

(6)Notwithstanding anything to the contrary contained in any certificate of occupancy or in any of the provisions of any conditions of a right of occupancy, in every case in which the Commissioner requires the payment of a rent, the Commissioner shall have the power to revise that rent at intervals of not less than three years and in any exercise of that power, the determination of any revised rent shall be in accordance with subsection (2).

(7)The Commissioner may grant a right of occupancy free of rent to any person or organisation if the land is to be used exclusively for religious worship or for burial or exclusively both for religious worship and for burial.

(8)The Commissioner may grant a right of occupancy at a nominal rent if the land is to be used exclusively for a charitable purpose.

(9)In any case referred to in subsections (7) and (8), where the land ceases to be used exclusively for the purposes specified in those subsections, the Commissioner shall charge any rent or make any adjustment to the rent which appears to him to be necessary and desirable in all the circumstances.

(10)The Minister may direct the Commissioner to establish arrangements to review, and if the case is made out to remit in whole or in part the rent of any person who claims that by reason of poverty, infirmity, the effects of a natural or other disaster or other similar cause, he cannot pay the rent required to be paid under the right of occupancy and thereafter to keep such case under continuous review and, where necessary, make further adjustments, either to increase or reduce the rent which is to be paid.

(11)Where any rent or installment of rent payable in respect of a right of occupancy, or any part of such rent or installment, remains unpaid for a period of six months after the date on which the same is required to be paid, interest at the rate of one per centum per month shall be payable on the unpaid amount until payment of the amount is made, and such interest shall be collected and recoverable in the same manner as rent.

(12)The acceptance by or on behalf of the Commissioner of any rent shall not be held to operate as a waiver by the Government of any right to revoke the right of occupancy accruing by reason of the breach of any covenant or condition, express or implied in any contract for a right of occupancy or in any certificate of occupancy granted under this Act or under any law repealed and replaced by this Act.[Act No. 7 of 2016 2nd Sch. Para. 2; Cap. 348]

33A. Exemption from land rent on Government

(1)Notwithstanding any provisions under this Act, the payment of rent for a right of occupancy shall not be paid exclusively for—

(a)central or local government use;

(b)government institution or organisation use;

(c)non profit organizations including religious institutions which provide health, education or other social services which are not profit oriented.

(2)The Minister may, by regulations set criteria for determining activities which are exempted from the payment of rent for right of occupancy under subsection (1)(c).

(3)Where the Commissioner is satisfied that part of the land granted to Government, public institution or organisation is used for purposes other than those specified under subsection (1) that part shall be apportioned and subjected to rent.

(4)The Commissioner shall, where the land ceases to be used exclusively for the purposes specified under subsection (1), charge any rent or make any adjustment to the rent as may be appropriate.[Act No. 4 of 2018 s. 31]

34. Conditions

(1)Every right of occupancy shall be granted subject to the provisions of this section and to any development or other conditions which may be prescribed, or which the Commissioner may impose and any of those conditions the Commissioner may impose may be in or addition to, subtraction from variation of the prescribed conditions.

(2)It shall be a condition in every grant of a right of occupancy where the purpose for which the grant has been made is to construct buildings on the land that the grantee of such right shall, in any case where any consents and permissions are required, apply for planning consent under the Urban Planning Act, and apply for a building permit under the Township (Building) Rules within six months of the grant of the right of occupancy.[Cap. 355]

(3)Where a right of occupancy includes land which is occupied by persons under customary law, it shall be a condition of that right of occupancy that those customary rights shall he recognised and those persons so occupying the land shall be moved or relocated only—

(a)so far as is necessary to enable the purpose for which the right of occupancy was granted to be carried out; and

(b)in accordance with due process and principles of fair administration, being given—

(i)not less than one hundred and eighty days’ notice of any requirement to move;

(ii)the opportunity to reap crops sown before any notice to move was to those persons;

(iii)the right to continue to use water which those persons had a right to use before being given notice to move; and

(iv)prompt payment of full compensation for loss of any interests in land and any other losses that are incurred due to any move or any other interference with their occupation or use of land.

(4)Until the time conditions are prescribed by regulations made under this Act, all those conditions which immediately before the enactment of this Act had been acted or prescribed as conditions to be imposed on the grant of a right of occupancy, other than any conditions which expressly or impliedly require any approval for a change of use or disposition of a right of occupancy, shall be deemed to be conditions prescribed under this Act and shall, unless they conflict with any provisions of this Act or it is otherwise specifically provided for in the letter of offer or the certificate of title be implied in every such grant of a right of occupancy and shall be binding on the grantee of that right of occupancy and his successors in title.

(5)Before imposing, amending or adding to any conditions in respect of a right of occupancy granted in reserved land, the Commissioner shall consult with the official or organisation having jurisdiction over that reserved land and shall have regard to any representations and recommendations that such official or such organisation may make in respect of the proposals of the Commissioner.

(6)Before imposing, amending or adding to any conditions in respect, of a right of occupancy which would be likely to have a significant effect on the activities and services provided by the local authority having jurisdiction in the area where the land, the subject of the right of occupancy is situate, the Commissioner shall consult with that local authority and shall have regard to any representations and recommendations that such local authority may make in respect of the proposals of the Commissioner.

(7)A person who signs a certificate of occupancy in accordance with the provisions of section 29 shall, where he signs on his own behalf be deemed to have bound himself and, where he signs as the authorized representative of a local authority, corporate body or other organisation, be deemed to have bound that local authority, corporate body or other organisation to the President to observe and comply strictly with each and every condition contained in that certificate of occupancy or subject to which that right of occupancy was granted.

(8)The commissioner and any authorized officer may, subject to section 170, enter on land the subject of a right of occupancy to inspect that land and to investigate that the conditions subject to which the right of occupancy has been granted have been complied with.

35. Change of use

(1)An occupier of land under a right of occupancy may apply to the Commissioner for a change or variation to the conditions of that right of occupancy so as to enable him to undertake a development on or a use of that land or a disposal of the whole or a part of that land in connection with a development on or a use of that land which is not permitted by the conditions subject to which the right of occupancy was granted.

(2)An application under this section shall be—

(a)submitted on a prescribed form and accompanied by a photograph;

(b)accompanied by the prescribed fee;

(c)signed by the applicant or his duly authorised representative or agent;

(d)sent or delivered to the Commissioner or an authorized officer; and

(e)accompanied by any other information which may be prescribed or which the Commissioner may, in writing, require.

(3)The Commissioner shall consult with and take account of the views of—

(a)the authority having responsibility for town and country planning in the area where the land is situate;

(b)the local authority having jurisdiction in the area where the land is situate;

(c)any other authority whose consent to that change of use is necessary.

(4)Where the Commissioner determines to approve a proposed change of use, he shall, in writing using the prescribed form—

(a)inform the occupier of that fact;

(b)request the occupier to bring or send the certificate of occupancy to the Commissioner endorsement on it of the change of use; and

(c)inform the occupier of any premium or additional rent that is payable as consequence of the change of use.

(5)No approved change of use shall take effect and no action may be taken by an occupier in pursuance of a proposed or approved change of use until—

(a)that change of use is endorsed on the certificate of occupancy;

(b)the endorsement is signed by the Commissioner with his official seal and by the occupier;

(c)all premia and additional rent have been paid by the occupier in accordance with the terms and conditions subject to which the change of use is granted.

(6)The provisions of sections 30 and 32 apply to the payment of any premium and any rent under this section as they apply to the payment of premia and rent under those sections.

(7)The grant by the Commissioner of a consent to a change of use shall not—

(a)absolve the occupier from any obligation to obtain the consent of any other authority to that change of use;

(b)require any other authority whose consent to that change of use is necessary to grant that consent.

Sub-Part 3 Dispositions of right of occupancy

36. General provisions as to dispositions

(1)A disposition of a right of occupancy shall—

(a)comply with the provisions of this section and sections 37, 38, 39 and 40;

(b)be void if the provisions of this section and sections 37, 38, 39 and 40 are not complied with.

(2)Unless otherwise provided for by this Act or regulations made under this Act, a disposition of a right of occupancy shall not require the consent of the Commissioner or an authorized officer.

(3)Any person proposing to carry out a disposition, other than a disposition to which section 38 applies, shall send or deliver a notification in the prescribed form to the Commissioner or an authorized officer before or at the time the disposition is carried out together with the payment of all premia, taxes and dues prescribed in connection with that disposition.

(4)The Commissioner shall, subject to the provisions of section 37, on receipt of a notification under subsection (3) and the payment of all premia, taxes and dues which may be prescribed, with all due dispatch, endorse that notification with his signature and official seal and send or deliver a copy to the Registrar.

(5)The Registrar shall not make any entry on the register in respect of any disposition or any right of occupancy transferred as a result of a disposition to which subsection (3) applies unless and until he is in receipt of a copy of a notification endorsed in accordance with subsection (4).

37. Approval for dispositions

(1)The Commissioner shall have power to consider and approve categories of dispositions of land under this Act.

(2)Any assignment of a right of occupancy which was granted to the assignor less than three years before the proposed assignment is to take effect shall require the approval of the Commissioner, which approval shall not be unreasonably withheld.

(3)A loan granted on the security of a mortgage by a prescribed lender or a disposition of a right of occupancy or a lease made by a prescribed lender of monies on the security of a mortgage of land in the exercise of the power of leasing under section 115 or the power of sale under section 118, shall not require any approval under this section whatever the value of the mortgage or disposition, at the time the disposition is made, but that disposition shall come within the provisions of section 38.

(4)Where the Commissioner has reasonable cause to believe that a disposition has taken place or is about to take place which in order to avoid the requirement to obtain approval under this section has been agreed between the parties to be for a value less than the market value of the interest in land which is the subject of the disposition, he may take any such action in relation to dispositions to which that section applies.

(5)A disposition which has been carried out without first obtaining the approval of the Commissioner shall be inoperative.

(6)The requirement to obtain approval to a disposition under this section shall not absolve an applicant for that approval from any other requirement to obtain any other consent approval, permit, licence or other authorization in respect of that disposition or for the use and development of the land to be acquired through that disposition under any other law.

(7)The Minister may, after seeking and taking into account the views of the Commissioner by regulations under this section—

(a)provide for dispositions or classes of dispositions which do not require approval under this section to require approval from the Commissioner;

(b)provide for dispositions or classes of dispositions which require approval under this section—

(i)not to require approval at all;

(ii)to require approval from the Commissioner.

(8)Subject to subsection (9), the Commissioner shall approve sale of a right of occupancy without unexhausted improvement if such sale complies with the provisions of subsection (9).

(9)The sale of a right of occupancy without unexhausted improvement may be made to a citizen of Tanzania and shall be lawful if that land is sold in the following circumstances, that is to say,—

(a)it is sold to a purchaser who agrees to comply with development conditions; or

(b)it is a partial transfer of interest in land for a joint venture to facilitate compliance with development conditions.

[Act No. 2. of 2004 s. 5; Cap. 4 s. 8]

38. Supervisory powers over dispositions

(1)The Commissioner may on receipt of a notification of a disposition under subsection (3) of section 36 issue a notice in the prescribed form to the parties requiring them not to proceed with the disposition until—

(a)they have sent or delivered to him any additional information and documentation about the disposition which is specified in the notice;

(b)they have applied for and received approval for that disposition.

(2)Where the Commissioner has reasonable cause to believe that a disposition is about to take place or has taken place of which he has not received notification under subsection (3) of section 36 of the parties to the transaction of which he has knowledge requiring them—

(a)to comply with section 36;

(b)not to proceed with disposition until—

(i)they have sent or delivered to him any additional information and documentation about the disposition which is specified in the notice; or

(ii)they have applied for and received approval to the disposition.

(3)Where the Commissioner has reasonable cause to believe, either of his own motion or as a result of representations made to him by or on behalf of one of the parties to the disposition, that a disposition has been or is in the process of being or is likely to be affected by fraud, or undue influence, or lack of good faith, or the fact that one party appears to have taken unfair advantage over another party to the disposition or that the disposition, not being a gift, is not for value, he may—

(a)where the disposition has taken place and not more than two years have elapsed since the conclusion of the formalities necessary to complete the disposition, apply to the Registrar of Titles to enter injunction under section 79 of the Land Registration Act for rectification of the land register;[Cap. 334]

(b)where the disposition has not yet taken place—

(i)apply to the Registrar to enter an injunction to prevent the disposition from taking place;

(ii)issue any notice that he can issue under subsection (2); or

(iii)issue a notice requiring the parties to the disposition to appear before him and give an explanation of the circumstances of the disposition.

(4)Where the Commissioner issues a notice under subparagraph (iii) or paragraph (b) of subsection (3), he may after hearing the parties to the disposition, issue a notice under subparagraph (i) or (ii) of paragraph (b) of subsection (3).

39. Application for grant of approval for disposition

(1)An application for a grant of approval for a disposition shall be—

(a)made on a prescribed form;

(b)signed by all the applicants;

(c)accompanied by any other information which are prescribed or which may be required by the Commissioner;

(d)accompanied by any fees which may be prescribed.

(2)One application may be made for a grant of approval for two or more dispositions and where that application is made, the provisions of this section shall apply to each disposition as if a separate application had been made in respect of an approval for each disposition.

(3)The Commissioner may require relevant information additional to that which is referred to in paragraph (c) of subsection (1) and shall not be under any obligation to determine an application in respect of which he has required additional information until that additional information has been submitted to him or a satisfactory explanation of why that additional information cannot be submitted to him has been submitted to him.

(4)The Commissioner may consult with any person or organisation on an application for a grant of approval for a disposition but shall not be obliged to accept any advice received as a result of that consultation, nor, where that advice has been requested within a certain time, shall the Commissioner be obliged to delay the determination on the application where that advice has not been submitted within that certain time.

(5)The Commissioner shall—

(a)grant approval, subject to any conditions which may be prescribed which apply to that disposition;

(b)grant approval, subject to the conditions referred to in paragraph (a) and any other conditions which he may determine to impose; or

(c)refuse to grant approval,

to the application.

(6)A consent under subsection (5), in this Act referred to as a "certificate approval" shall—

(a)be personal to the applicant;

(b)not be assignable;

(c)be valid for one year from the date on which it was given.

(7)A determination by the Commissioner under subsection (5) shall be—

(a)in the prescribed form;

(b)signed by the Commissioner;

(c)where it is a certificate of approval, accompanied by a demand for any premium, taxes or dues which may be prescribed or which is determined by the Commissioner;

(d)copied to the Registrar;

(e)delivered or sent by registered letter to the applicant to his last known abode or his usual place of business.

(8)A person who has received a certificate of approval shall pay all premia, taxes and dues which are required to be paid in connection with the disposition to which the certificate of approval refers and no such disposition shall be valid or effective to transfer any interest in any land or give rise to any rights in the transferee unless and until all the premia, taxes and dues have been paid accordingly.

(9)The Commissioner, an authorized officer or any other officer to whom any premia, taxes or dues is or are required to be paid under this section shall endorse and sign a receipt for that premium, tax or due on the certificate of approval.

(10)The Registrar shall not make any entry on the register in respect of any disposition or any right of occupancy the subject of a disposition to which this section applies unless and until he is satisfied that all premia, taxes and dues in respect of that disposition have been paid and a receipt for the same has been validly endorsed on the certificate of approval.

40. Reconsideration of application for approval for disposition

(1)Where the Commissioner has refused an application for approval for a disposition or has granted it subject to conditions, the applicant may request the Commissioner to reconsider that application with a view to granting it, or granting it free of or with amended conditions.

(2)A request for a reconsideration of an application shall be—

(a)made on a prescribed form signed by the applicant;

(b)accompanied by any information which may be prescribed and which the Commissioner may require; and

(c)accompanied by any fee which may be prescribed.

(3)In determining an application under this section, the Commissioner shall have all the powers and take account of all the criteria set out in this Sub-Part which apply to an application for a grant of approval for a disposition.

41. Criteria for determining application for grant of approval for disposition

(1)Subject to the provisions of this section, there shall be a presumption that an application for a grant of an approval for a disposition shall be granted.

(2)In determining whether to grant an approval for a disposition, the Commissioner shall, taking into account the presumption set out in subsection (1), have regard to—

(a)whether the occupier of land which is the subject to the disposition proposed has complied with all the conditions in the right of occupancy subject to which he occupies that land;

(b)where a right of occupancy is to be transferred or a lease is to be granted out of a right of occupancy, whether the price at which the transfer or grant is to be made is at a significant undervalue of the land;

(c)where the applicant already occupies or has at some time in the past occupied land m Tanzania under a right of occupancy, the amount of land occupied and whether that land is being or was occupied and used in accordance with the conditions of the right of occupancy for which it is or was held;

(d)whether the person or body to whom or which the land is to be disposed has any criminal convictions relating to dishonesty, fraud or corruption;

(e)whether the disposition concerns the interest of risk groups such as displaced persons, children and any low income persons.

(3)Where the Commissioner is of the opinion that a right of occupancy in land is to be transferred at a significant under-valuation or a lease is to be granted at a premium or for a rent which is significantly below the value of that lease in the open market, the Commissioner may require the parties to the disposition to obtain, at the expense of the proposed transferee, a valuation of that land from a registered valuer which the Commissioner shall nominate, and consent shall not be granted to any disposition to which this subsection applies at a price which is less than the value put upon the land by the nominated valuer.

(4)An application of a grant of approval for a disposition shall be determined by the Commissioner within sixty days or any longer period which may be agreed upon between the Commissioner and the parties to the proposed disposition.

(5)Where a determination has not been made within the period specified in subsection (4) and no agreement has been reached between the parties to the disposition and the Commissioner to extend the specified period, the approval to the disposition shall be deemed to have been refused.

(6)Nothing in this section shall be taken to dispense with the requirement to obtain permission to develop land under the Urban Planning Act, and any other laws relating to the erection of buildings on land.[Cap. 355]

(7)The Minister may, after consulting with the Minister for Agriculture, by regulations set out by reference to regions, districts or agro ecological zones the amounts of land necessary for a small holder to feed himself and his family and when such regulations have been made, the Commissioner shall comply with them when exercising his functions under paragraph (e) of subsection (2).[Act No. 7 of 2016 2nd Sch. Para. 2]

42. Power to surrender right of occupancy

(1)An occupier of land under a right of occupancy may surrender the whole or a part of the land comprised in that right of occupancy.

(2)The Commissioner shall not accept any surrender of the whole or a part of any occupied land unless the following circumstances apply—

(a)all rent, taxes and dues owed to the Government in respect of that land are fully paid up;

(b)the land will not create, cause or give rise to or a transfer of, any liability in contract, tort or otherwise to the Government;

(c)the land is not subject to any subsisting mortgage, charge or encumbrance;

(d)the land is not subject to any action in Court by a lender to possess and sell the land;

(e)the land is not subject to any action by a trustee in bankruptcy on behalf of creditors or is not otherwise subject to an order of attachment by any Court;

(f)the surrender is not designed to defeat the rights of a spouse to share in or obtain part of the land;

(g)every co-occupier and person or body having any interest in that land has consented in writing to the surrender;

(h)the land is surrendered in consideration of natural love and affection.

(3)Where the Commissioner is satisfied that an application for the surrender of the whole or a part of the land is due to hardship or poverty and by reason of that hardship or property, the applicant is not able to pay any rent, taxes and other dues which he owes to the Government, the Commissioner may remit the whole or a part of any monies which the applicant owes the Government.

43. Procedure for surrender of right of occupancy

(1)A deed of surrender of a right of occupancy shall be in writing using the prescribed form and signed by the person surrendering the right of occupancy and shall be accompanied by—

(a)any fee which may be prescribed;

(b)any written consents which are required under paragraph (g) of subsection (2) of section 42;

(c)the certificate of occupancy, or where the certificate occupancy is in the possession of a lender, charge or lien-holder, a written notice, signed by that lender, charge or lien-holder as evidence of that fact.

(2)On receipt of the deed of surrender and all accompanying documents, the Commissioner shall, if it appears to him that all the conditions specified in section 42 are satisfied and that the documents are all in order, accept the surrender by signing the deed of surrender.

(3)In any case where it appears to the Commissioner that one or more of the matters referred to in subsection (2) are not satisfied or in order, he shall refuse to accept the deed or surrender.

(4)Where the Commissioner has made a determination in terms of either subsection (2) or (3), he shall—

(a)notify the occupier;

(b)where the surrender is of a part of the land—

(i)notify the occupier of any revision to the rent for the remaining portion of the land;

(ii)cancel the existing certificate of occupancy;

(iii)issue a new certificate of occupancy to the occupier;

(c)present any deed of surrender and certificate of occupancy to the Registrar.

(5)The Registrar shall take steps which are necessary to amend the register in the light of the information of which he is notified by the Commissioner.

Sub-Part 4 Breach of conditions of right of occupancy

44. When breach of condition of right of occupancy arises

(1)A breach of a condition requiring continuous performance shall arise as soon and continue as long as the condition is not complied with.

(2)A breach of a condition subject to a fixed term shall arise—

(a)in the case of a condition requiring the doing of any act within any time specified in the condition or where that time has been extended by the Commissioner, within that extended time, upon the expiry of that time without that act having been done;

(b)in the case of a condition requiring any act to be refrained from until any time specified in the condition or where that time has been extended by the Commissioner, within that extended time, upon the doing of that act before that time.

(3)Where any condition consists of two or more separate obligations or liabilities, a failure to fulfil any of those obligations or liabilities shall constitute a breach of the condition.

45. Liability to revocation for breach of condition

(1)Upon any breach arising from any condition subject to which any right of occupancy has been granted, the right of occupancy shall become liable to be revoked by the President.

(2)The President shall not revoke a right of occupancy save for the good cause.

(2A)³In subsection (2) "good cause" shall include the following—

(a)there has been an attempted disposition of a right of occupancy to a non-citizen contrary to this Act and any other law governing dispositions of a right of occupancy to a noncitizen;

(b)the land the subject of the right of been abandon for not less than two years;

(c)where the right of occupancy is of land of an area of not less than five hundred hectares, not less than eighty per centum of that area of land has been unused for the purpose for which the right of occupancy was granted for not less than five years;

(d)there has been a disposition or an attempt at a disposition which does not comply with the provision of this Act;

(e)there has been a breach of a condition contained or implied in a certificate of occupancy;

(f)there has been a breach of any regulation made under this Act;

(g)where there is contravention of section 120A or 120B.[Cap. 4 s. 8]

(3)Notwithstanding subsection (2), the President may revoke a right of occupancy if in his opinion it is in the public interest to do so.[Cap. 4 s. 8]

(4)Before proceeding to take any action in respect of a breach of a condition of the right of occupancy, the Commissioner shall consider—

(a)the nature and gravity of the breach and whether it could be waived;

(b)the circumstances leading to the breach by the occupier;

(c)whether the condition that has been breached could be amended so as to obviate the breach,

and shall in all cases where he is minded to proceed to take action on a breach, first issue a warning letter to the occupier advising him that he is in breach of the conditions of the right of occupancy.

(5)The Commissioner may, instead of proceeding to the enforcement of the revocation—

(a)impose a fine on the occupier in accordance with section 46;

(b)serve a notice on the occupier in accordance with section 47 requiring the breach to be remedied.

(6)The Commissioner may, at any time, withdraw from taking action under section 46 or withdraw a notice served under section 47 and proceed to the enforcement of the revocation under section 49.

(7)A right of occupancy which has become liable to be revoked under this section shall cease to be so liable if the breach is subsequently remedied.[Act No. 1 of 2018 s. 9]³ Note: Subsection (2) has been split into subsections (2) and (2A) for proper arrangement of legislative sentence.

46. Fine for breach of condition

(1)Where any breach of a condition has arisen, the Commissioner may serve a notice in the prescribed form, on the occupier requiring him to show cause as to why a fine should not be imposed upon him in respect of such breach.

(2)The occupier shall, within the time specified in the notice, respond to the notice.

(3)Where the occupier has not responded to the notice or where he has failed to show cause as to why a fine should not be imposed to the satisfaction of the Commissioner, the Commissioner may serve a notice on the occupier in the prescribed form requiring him to pay a fine as prescribed by the Minister by regulations made under section 179 of this Act and in the case of a continuing breach, the occupier shall be liable to a further notice to pay a further fine for each day during which the breach continues.

(4)The Commissioner may, and shall where the occupier has not committed any other breach of a condition of the right of occupancy, suspend the payment of any fine for up to two years and if the occupier does not commit that breach again within the period during which the fine is suspended, the fine shall lapse and shall no longer be payable.

(5)Where the fine is paid in full and no notice has been served under section 48 in respect of the breach, no further action shall be taken by the Commissioner in respect of that breach.

(6)Where the Commissioner is satisfied, after due inquiry, that the breach in respect of which a fine has been paid is continuing, or has recommenced, he may take action in respect of that continuing or recommenced breach under section 48 or 49.[Cap. 4 s. 8]

47. Summary action to remedy breach of condition

(1)Where any breach of a condition has arisen, and it appears to the Commissioner that the breach is capable of being remedied by the occupier within a reasonable time, he may serve a notice in the prescribe form on the occupier specifying the action required for remedying the breach and requiring the occupier to take any action within the time specified in the notice.

(2)The occupier on whom a notice under this section is served shall be responsible for the compliance with that notice.

(3)Where a notice served under this section is complied with, no further action shall be taken by the Commissioner in respect of that breach.

(4)Where it appears to the Commissioner that the notice has not been complied with or that the breach in respect of which the notice was served is continuing or has recommenced, he shall proceed with the enforcement of the revocation of the right of occupancy in accordance with section 49.

48. Action to enforce revocation for breach of condition

(1)Where the Commissioner is satisfied that—

(a)a notice served under section 47 has not been complied with;

(b)the breach of condition is so serious and of farreaching consequences that—

(i)it would not be practicable for the occupier to remedy that breach within a reasonable time;

(ii)the occupier has demonstrated a clear unwillingness to comply with the conditions of the grant of the right of occupancy made to him;

(c)there has been an attempted disposition of a right of occupancy to a non-citizen contrary to this Act and any other law governing the disposition of a right of occupancy to a noncitizen;

(d)the land the subject of the right of occupancy has been abandoned for not less than two years;

(e)where the right of occupancy is of land of an area of not less than five hundred hectares, not less than eighty per centum of that area of land has been unused for the purpose for which the right of occupancy was granted for not less than five years;

(f)there has been a disposition or an attempt at a disposition which does not comply with the provisions of this Act;

(g)any rent, taxes or other dues remain unpaid for six months after a written notice in the prescribed form was served on the occupier, and subsection (8) of section 33 does not apply to the occupier,he shall—

(i)serve a notice of revocation in the prescribe form on the occupier;

(ii)cause a copy of that notice to be served on all persons having an interest in the land; and

(iii)notify the Registrar of the services of the notice which shall be recorded in the Land Register.

(2)A notice of revocation shall, subject to the provisions of this section, take effect ninety days after it has been served on the occupier.

(3)As soon as a notice of revocation has come into effect, the Commissioner shall recommend to the President to revoke the right of occupancy.

49. Revocation and its effects

(1)As soon as the President approves a revocation under section 48(3) of this Act, the Commissioner shall cause it to be published in the Gazette and in one or more newspaper circulating in the area where the land subject of the revocation is situate a notification of that revocation.

(2)Upon the approval of the revocation by the President—

(a)the right of occupancy to which it refers shall determine immediately and without further action;

(b)all derivative rights, created out of the right of occupancy which has determined shall determine immediately and without further action;

(c)all rights and interests in the land the subject of the right of occupancy shall revert to the President and the same shall be registered in the Land Register;

(d)subject to subsection (3), all unexhausted improvements shall vest in the President without further action;

(e)any rent, taxes or other dues owing to the Government arising out of or attributable to the grant of the right of occupancy shall be extinguished;

(f)all proceedings relating to the right of occupancy or the land the subject of the right of occupancy which were or could have been commenced against the occupier and all proceedings which were or could have been commenced against any person, other than the Commissioner, by the occupier shall be taken over by the Government and thereafter shall be pursued against or by the Government as the case may be provided that, in any case in which the Government is a defendant, the Government may join the former occupier as a co-defendant and shall have a right to call upon or take any action which may be necessary to compel the former occupier to pay any damages or costs which may be awarded against the Government in such a case.

(3)There shall be payable to the former occupier whose right of occupancy has been revoked compensation which shall equal the value of unexhausted improvements made in accordance with the terms and conditions of the right of occupancy on the land at the time of the revocation less—

(a)the costs to the Government of any proceedings for or taken in connection with the revocation;

(b)any rent, taxes and dues together with any interest on the rent, taxes and dues which were owned to the Government immediately before the revocation;

(c)any sums owed by the former occupier, or by the Government as a consequence of the revocation, to any person claiming a derivative right to the land through the former occupier;

(d)any monies which the Government is obliged to spend or which it is reasonably necessary for the Government to spend to repair any damage to the land or any building on the land or to any contiguous and or to any occupying and using the land or any contiguous land as a result of any act or omission to act by the former occupier during his occupation, whether that act or omission, to act was lawful or not;

(e)any other expenses which the Government incurs or may reasonably anticipate incurring as a result of or on account of the revocation.

(4)Where, as a result of any calculation undertaken under subsection (3) the former occupier owes the Government any money, the Commissioner shall serve notice on that person demanding that money from that person within fourteen days of the service of the notice and if at the expiry of that period, that money has not been paid, an action may be commenced in the Court in accordance with this Act to recover that money as a civil debt owned to the Government.

(5)The Commissioner may grant any relief including the payment of any sums of money which appear to him to be fair and reasonable to any person claiming a derivative right under the right of occupancy which has been revoked but no relief or sum of money shall be granted to any person who has contributed to or participated in or benefited from, directly or indirectly, any act or omission to act, the doing or not doing of which is the reason or one of the reasons for the revocation of the right of occupancy.

50. Summary proceedings for recovery of rent

(1)Subject to the provisions of this section but without prejudice to any other remedy for the recovery of rent and interest payable under section 33, where any person who is liable for rent for a right of occupancy granted under this Act fails to pay such rent or any instalment thereof on the due date, an authorized officer may serve or cause to be served on such person, a written notice calling upon such person to pay such rent or instalment together with interest, if any, within fourteen days of the service of the notice and, if at the expiration of such period of fourteen days, the rent or instalment and interest, if any, has not been paid, the authorized officer may cause a copy of the notice to be filed in the District Land and Housing Tribunal or District Court within the area in which the land to which the right of occupancy relates is situate, and upon such copy being so filed, it shall be deemed to be a decree passed by such Court against the person to whom the notice is addressed for payment by him to the President of the amount specified in such notice as being due from him together with such interest thereon at the Court rate from the date on which such notice is so filed till payment and such decree may be executed by the Court on the application made ex parte by the authorized officer, either by the issue of a warrant or in any other manner in which a decree passed by such Court may be executed, and the Court shall have jurisdiction to execute such decree notwithstanding that the amount involved may exceed the pecuniary jurisdiction of the Court.

(2)An application under this section shall be accompanied by—

(a)a copy of the demand containing a certificate by the person, who served the same stating the time and place of service and the person on whom it was served;

(b)a certificate by the authorized officer of the amount due and owing,

and upon production thereof the Court mentioned under subsection (1) shall have jurisdiction to grant such summary warrant, and be executed in all respects as though it were both a warrant of attachment and a warrant of sale issued out of the Court of such magistrate.

(3)Subject to subsection (1) of section 22 of the Land Disputes Court Act, filing of a copy of notice in the District Court shall apply where the District Land and Housing Tribunal has not been established or is not operational at the district level.[Cap. 216]

(4)The notice required to be served under subsection (1) shall be served either by delivering a copy thereof to the person to whom it is addressed or by leaving a copy thereof at his usual place of residence or business or by publishing such notice in such newspaper or newspapers as the authorized officer may determine.

(5)In this section "authorized officer" means the Commissioner for Lands and such other person as he may appoint in writing in that behalf.[Act No. 11 of 2005 s. 13]

51. Abandonment of land held under right of occupancy

(1)Land held for a right of occupancy shall be taken to have been abandoned where one or more of the following factors are present:

(a)the occupier owes any rent, taxes or dues in respect of the land and has continued to owe such rent, taxes or dues or any portion of them for not less than five years from the date on which any rent, taxes or dues or any portion thereof first fell to be paid;

(b)the occupier has left the country without making any arrangement for any person to be responsible for the land and for ensuring that the conditions subject to which the right of occupancy was granted are complied with and that occupier has not given any appropriate notification to the Commissioner;

(c)any building on the land has fallen into a state of such disrepair that it has become a danger to the health and safety of any person occupying that building for any lawful purpose or a neighbor to the occupier;

(d)persons with no apparent lawful title so to do are occupying or using the land or any buildings on the land and one or more of those persons or a person from a community which contains one or more such persons have so occupied or used the land or any building on the land for a period of not less than two years immediately preceding the date on which in accordance with this section, the Commissioner publishes a notice of abandonment in the Gazette;

(e)by reason of the neglect of the land, the land is—

(i)no longer capable, significant without expenditure and remedial work, of being used for productive purposes; or

(ii)suffering serious environmental damage.

(2)Where it appears to the Commissioner that any land has been abandoned, he shall publish in the Gazette and in a newspaper circulating in the area where the land is situate a notice of abandonment which shall—

(a)state the location of the land;

(b)state the boundaries of the land;

(c)set out briefly the grounds on which the Commissioner intends to rely in determining that the land has been abandoned;

(d)state the time, being not less than sixty days from the date of the publication of the notice, within which any person claiming to have an interest in the land may show cause why the land should not be declared to be abandoned.

(3)Where the Commissioner after considering any representations received under paragraph (d) of subsection (2) determines that the land has been abandoned, the Commissioner shall issue in the prescribed form, a declaration of abandonment and shall send a copy of that declaration to the occupier of the land at his last known place of abode or last known address.

(4)Proceedings to revoke a right of occupancy under section 49 in respect of land which has been declared abandoned under subsection (3) shall be commenced forthwith.

(5)Where any person claiming to have an interest in land shows cause that the land is not abandoned, the Commissioner if satisfied as such shall take no further action.

Sub-Part 5 Auctions of right of occupancy

52. Auction of and tenders for rights of occupancy

(1)The Minister may, after considering the advice of the Commissioner, direct that any portion of general land, be made available for development through a right of occupancy by means of—

(a)an auction; or

(b)a process of tendering for the land.

(2)The Minister shall make regulations governing the holding and conduct of an auction and the process of tendering for land.

Part VII – Conversion of interests in land

Sub-Part 1 Validation of interests in general land

53. Validation of certain dispositions completed before coming into operation of this Act

(1)This section applies to any disposition of a right of occupancy or of an interest in land held under customary tenure or any other form of informal tenure, wheresoever’s the land in respect of which the disposition has taken place is located, where the parties to that disposition—

(a)should have but did not obtain a grant of approval from the Commissioner or other relevant authority;

(b)applied for a grant of approval but notwithstanding the refusal of approval, carried out that disposition,

where the disposition has been completed before the coming into operation of this Act.

(2)A person who is occupying land which he has obtained under or as a consequence of a disposition to which subsection (1) applies, shall by virtue of this section be deemed to be in lawful occupation of that land for a period of six years from the date of commencement of this Act or any longer period which the Minister, after seeking and taking account of the advice of the Commissioner, shall by order published in the Gazette determine and may, within two years from the date of the commencement of this Act or any later date, being earlier than the period of six years or any longer period referred to in this subsection for which this occupation is lawful, as the Minister may, by order, prescribe, apply to the Commissioner for a certificate of validation of that occupation.

(3)An application for a certificate of validation shall be made—

(a)on a prescribed form;

(b)accompanied by the prescribed fee;

(c)signed by the applicant or his duly appointed representative or agent;

(d)accompanied by any other information which may be prescribed or which the Commissioner may require.

(4)The Commissioner shall, on being satisfied that—

(a)the provisions of subsection (3) have been complied with; and

(b)the provisions of paragraph (d) of subsection (2) of section 41 do not apply to the applicant,

issue a certificate of validation to the occupier in the prescribed form.

(5)Where the occupation which is validated by a certificate of validation is an occupation which was commenced after a disposition which purported to transfer a right of occupancy in the occupied land to the person who has obtained a certificate of validation or his predecessor in title, the receipt by the occupier of a certificate of validation shall entitle that person to apply for and obtain a right of occupancy for a period of not less than thirty three years.

(6)Where the occupation which is validated by a certificate of validation is an occupation which was commenced by a transaction which purported to be a lease or sub-lease of the occupied land to the person who has obtained a certificate of validation or his predecessor in title, the receipt by the occupier of a certificate of validation shall operate—

(a)as a grant of consent for a lease or, as the case may be, a sub-lease for a term of the same length as the lease which is being validated, retrospective to the date when the lease or, as the case may be, sublease in fact commenced whether that lease or, as the case may be, sublease was in writing or not;

(b)where the lease was granted out of an interest in land which is by this section validated as a right of occupancy for thirty three years, and was for a period longer than thirty-three years, the validation of that lease shall operate to reduce the term to thirty three years less ten days;

(c)to bring the lease, other than a lease created out of customary tenure, within the provisions of the Registration of Documents Act, or where the land out of which the lease or sublease has been created is held for a right of occupancy registered under the Land Registration Act, under the provisions of that Act.[Cap. 117; Cap. 334]

(7)Where, the occupation which is validated by a certificate of validation is an occupation which was commenced as a result of a subdivision of land in favour of the person who has obtained a certificate of validation or his predecessor in title, the receipt by the occupier of a certificate of validation shall operate as a permission lawfully to occupy that sub-divided land with any development on it which has been constructed during the period of occupation which is validated without the requirement to obtain any other permissions or consents under any other law for that sub-division or development on it; except that, such permissions and consents shall be required for any sub-divisions or developments on the land which commence after the commencement of this Act.

(8)Where the disposition for which a certificate of validation is issued was a purported mortgage, charge or lien on the land, the issue of a certificate of validation to the lender, charge or holder of the lien shall operate—

(a)as a grant of approval for the mortgage, charge or lien;

(b)to bring that mortgage or charge, not being a customary mortgage or charge, within the provisions of the Registration of Documents Act, or where the mortgage was of an interest in land registered under the Land Registration Act, under the provisions of that Act.[Cap. 117; Cap. 334]

(9)Where the occupation or transaction which is to be validated by a certificate of validation is an occupation or transaction which cannot with any certainty be related to any of the legal transactions referred to in subsections (5) to (8) or which was commenced as a result of a transaction by customary law, the Commissioner shall, after an investigation of the incidents of the occupation and any transactions relating to them of the land and taking any advice on customary law which he considers necessary, classify that transaction into one of the categories referred to in subsections (5) to (8) and issue a certificate of validation accordingly.

(10)Where a person has received a certificate of validation under subsections (5) to (9), he may pursue any action which may be required to obtain or register or otherwise perfect the interest in land referred to in those subsections and until he does so take any action referred to in this subsection, the interest in land which he has obtained through a certificate of validation shall not be capable of being the subject of any disposition.

54. Effect of non-application for certificate of validation

(1)Where a person who occupies land under a disposition to which section 53 applies does not comply with that section immediately before the termination of the date referred to in that section or any later date which the Minister may prescribe, the interest by which the land was occupied by that person shall be deemed to be a licence, valid and irrevocable until the end of the period of six years referred to in section 53, without prejudice to any derivative rights which that person may have created during his occupation and which have been validated by a certificate of validation issued under section 53.

(2)At any time before the end of the period for which the licence referred to in subsection (1) is valid and irrevocable, the occupier under that licence may apply for a right of occupancy or as the case may be a lease and the provisions of sections 24 to 52 shall apply to that application as if it were an application for right of occupancy or as the case may be an application for the disposition of a lease under sections 24 to 52.

(3)Where an occupier to which this section applies is refused a right of occupancy or a lease, he shall be entitled to compensation for the value of the unexhausted improvements on the land.

55. Validated derivative rights where certificate of validation not applied for

(1)Where a person who occupies land under an irrevocable licence created under the provisions of section 54 is granted a right of occupancy as a result of an application for a right of occupancy under subsection (2) of section 54, any derivative right in that land validated under and in accordance with the provisions of sections 53 to 57 shall be held of that right of occupancy.

(2)Where a person who occupies land under an irrevocable licence created under the provisions of section 54 is refused a right of occupancy, a lease validated under and in accordance with the provisions of sections 53 to 57 held of the interest in land which was by section 54 converted into an irrevocable licence shall, at the expiry of the period of the irrevocable licence, be converted into a right of occupancy for the same term as the lease was granted for but if that term was more than thirty three years or the term was indeterminate or unclear, then the term of the right of occupancy shall be for thirty three years.

(3)A validated derivative right of occupation created out of an interest in land which was, until it was converted into an irrevocable licence by the provisions of section 54, a derivative right shall as from the date of the termination of the irrevocable licence, be held of the next superior holder of a validated derivative right of occupation or where there is no such person, or the holder of a validated right of occupancy, or as the case may be a right of occupancy granted under the provisions of section 53.

(4)The terms and conditions on which a validated derivative right of occupation shall be held under this section shall be as near as may the same as it was held of the unauthorised disposition immediately before the provisions of section 53 were applied to that unauthorised disposition, except that any terms and conditions that conflict with or are inconsistent with any of the provisions contained in sections 61 to 166 of this Act shall not be valid.

(5)Where the terms and conditions on which a validated derivative right of occupation is to be held of a person under this section are not clear or the parties cannot agree on them, either party or both of them may—

(a)refer the matter to a Court for its decision; or

(b)request the Commissioner to assist the parties to reach an agreement on those terms and conditions.

(6)Where any land or interest in land to which this section applies has been made the subject of one or more mortgages during any time prior to the application of section 53 to the land or any interest in the land which has come into being through an unauthorized disposition, and those mortgages have been validated in accordance with section 53, the following rules shall apply to determine the priority of those mortgages—

(a)where the mortgages have been registered under the Registration of Documents Act, their priority shall rank in accordance with the date of their registration;[Cap. 117]

(b)where two or more mortgages have been validated through the issuing of a certificate of validation, their priority between themselves shall rank in accordance with the date recorded on the certificate of validation of when those certificates were issued but after any mortgage referred to in paragraph (a);

(c)a mortgage registered under the Registration of Documents Act, shall rank before any validated derivative right of occupation irrespective of when those certificates were issued but after any mortgage referred to in paragraph (a);[Cap. 117]

(d)a mortgage validated by the issuing of a certificate of validation which was created before a derivative right of occupation validated by the issuing of a certificate of validation shall rank before that derivative right of occupation validated by the issuing of a certificate of validation shall rank before that derivative right of occupation irrespective of the date when the two certificates were issued.

Sub-Part 2 Regularisation of interests in land

56. Application of sections 56 to 60

Sections 56 to 60 of this Act apply to land within the boundaries of any urban authority and to any land in a peri-urban area whether that land is within the boundaries of a village and is village land or not.

57. Purpose of and criteria for declaring scheme of regularization

(1)The purpose of a scheme of regularisation is to facilitate the recording, adjudication, classification and registration of the occupation and use of land by those persons living and working in an area declared by sections 56 to 60 of this Act to be subject to a scheme of regularisation.

(2)The criteria to be taken into account in determining whether to declare a scheme of regularisation in any area are:

(a)whether the area is used substantially for habitation in dwellings of their own construction or dwelling places adapted from buildings abandoned by their former occupiers by persons holding at the will or sufferance of a person having title to the land or as trespassers;

(b)whether a substantial number of persons living in the area appear to have no apparent lawful title to their use and occupation of land notwithstanding that they have paid for or are paying for the land they are occupying and manage the land in accordance with rules generally recognized within the area;

(c)whether the land, although part of an urban local authority is occupied under customary land law, whether that customary land law is the law of one group of people living in the area;

(d)whether the area is a substantially built-up area;

(e)whether the area has been or is likely to be declared to be a planning area under the Urban Planning Act;[Cap. 355]

(f)whether the area has a substantial number of persons who have lived there for a substantial period of time so that the area is a well established and settled area from a social point of view;

(g)whether there is evidence that despite the lack of any security of tenure for the persons living in the area, a considerable number of such persons appear to be investing in their houses and businesses and attempting to improve the area through their own initiatives;

(h)whether a substantial number of people and community-based organisations within the area indicate that they wish to participate in a scheme of regularisation;

(i)such other criteria which may be prescribed or which the Minister considers relevant.

58. Determination of whether to declare scheme of regularisation

(1)The Minister may, of his own motion or at the request of an urban authority or a village council within an urban or peri-urban area, either direct the Commissioner to consider, or appoint an inquiry under section 18 to consider the question of whether any area to which sections 60 to 64 apply be declared to be an area of regularisation, shall—

(a)cause to be convened one or more meetings in the area to explain to the residents of the area the nature and purpose of, and procedures to be followed in the declaration and implementation of a scheme of regularisation and to listen and take account of the views of the residents on the matter;

(b)cause to be prepared a report on the existing state of land tenure in the area and the nature and the basis of the tenure under which persons in the area occupy land in the area;

(c)cause an estimate to be prepared to what will need to be undertaken, the time it will take and the costs to carry out a scheme of regularisation;

(d)assemble any other information which the Commissioner considers necessary or which may be prescribed to enable a decision to be taken to proceed with a scheme of regularisation,

and submit to the Minister a report based on the matters referred to in paragraphs (a) to (d) on whether a scheme of regularisation should be declared.

(2)Where the Minister, after considering the report submitted to him under subsection (1), determines to proceed to declare a scheme of regularisation he shall direct the Commissioner to cause to be prepared a draft of a scheme of regularisation.

(3)Any preparation of a scheme of regularisation which is referred to in subsection (2) shall involve the urban authority within whose jurisdiction the proposed scheme area is or contiguous to whose area the peri-urban area is in which the proposed scheme area is and shall take account of any report prepared under this section.

59. Procedure for declaration of scheme of regularisation

(1)Where a draft scheme of regularisation has been prepared—

(a)a summary of the draft scheme of regularisation shall be published in at least one Kiswahili language newspaper circulating in the proposed regularisation area;

(b)the Commissioner shall give publicity to the substance of the draft scheme within the area of the draft scheme in a manner which is customary in that area of which is likely to bring that fact to the attention of people living in that area where the content of the draft scheme may be explained to those people and their views on the draft scheme may be obtained;

(c)the local authority referred to in subsection (4) of section 59 shall consider the draft scheme and send its comments to the Commissioner.

(2)Where a draft scheme will or is likely to involve the movement or relocation of people from their homes or places of work or the acquisition of land in the area or the redistribution of land or the readjustment of boundaries and areas of plots of land, the Commissioner shall serve a notice on every person occupying land affected or likely to be affected by any parts of that draft scheme and shall not reach any final conclusions on the draft scheme to which this subsection refers until all persons on whom a notice has been served who so desire it have had an opportunity of being heard on these proposals in the draft scheme.

(3)The Commissioner shall, after considering the views of people in the area, the urban authority for the area or contiguous to the peri-urban area and any other persons who have submitted comments on the draft plan and the views of people to whom subsection (4) applies, if he considers it necessary or desirable to do so, revise the draft scheme and submit the revised draft scheme to the Minister.

(4)The Commissioner shall give not less than fourteen days’ notice of any public meeting at which any matter connected with a draft scheme is to be discussed and of the time by which any written or other submissions or representations may be made on the draft scheme.

(5)The Minister may, after considering the draft scheme submitted to him by the Commissioner—

(a)approve the draft scheme and declare a scheme of regularisation by order published in the Gazette in terms of the draft scheme;

(b)refer the draft scheme back to the Commissioner for further work in accordance with any directions which the Minister may give to the Commissioner; or

(c)reject the draft scheme.

(6)A scheme of regularisation declared by the Minister under this Act shall be deemed to be a scheme under the Urban Planning Act.[Cap. 355]

60. Content of scheme of regularization

(1)A scheme of regularization may contain all or any of the following matters, that is to say—

(a)arrangements for the survey, adjudication and recording of the interests in land claimed by those persons occupying land in the regularisation area, which arrangements shall be based, as far as is practicable, on the provisions of sections 48 to 58 of the Village Land Act, relating to adjudication of interests in land;[Cap. 114]

(b)arrangements for the readjustment of the boundaries of plots of land;

(c)arrangements, within the framework of the rights in land provided for under paragraphs (a) and (b), for the better planning and layout of the land, including the pooling, sharing and redistribution of rights in land;

(d)arrangements for the involvement of the local authorities having jurisdiction in the regularisation area in the implementation of the scheme;

(e)arrangements for the involvement of the people whose land is the subject of the scheme of regularization in the implementation of the scheme;

(f)arrangement for the assessment and payment of any compensation that may be payable in connection with the implementation of the scheme;

(g)a budget for the scheme;

(h)any other matter which may be prescribed.

(2)The Commissioner shall be responsible for the implementation of a scheme of regularisation but he may, and if so directed by the Minister shall, delegate the whole or any part of the implementation of that scheme to the urban authority where the regularisation area is situate.

(3)For avoidance of doubt, no scheme of regularisation under this section shall be implemented until—

(a)occupation and use of land by those persons living and working in the area declared by sections 56 to 60 have been recorded, adjudicated, classified and registered;

(b)the President has acquired existing right and interests in terms of section 45 of the Urban Planning Act; and[Cap. 355]

(c)fair compensation is paid promptly for the rights and interests to be acquired by the President.

Part VIII – Disposition affecting land

Sub-Part 1 General provisions

61. Dispositions and dealings affecting land

(1)No right of occupancy, lease or mortgage shall be capable of being disposed of or dealt with except in accordance with this Act, and any attempt to dispose of any right of occupancy, lease or mortgage otherwise than in accordance with this Act, shall be ineffectual to create, extinguish, transfer, vary or affect any right or interest in land, or in the right of occupancy, lease or mortgage.

(2)The provisions of sections 61 to 166 of this Act shall not, unless otherwise expressly declared to do so, apply to a disposition of or dealing with land carried out and executed in accordance with customary law.

(3)For avoidance of doubt, dispositions of customary rights of occupancy shall be governed by customary law.

62. Instruments of disposition

(1)Every instrument effecting any disposition under this Act shall use any of the prescribed forms which are specified in relation to that disposition under this Act or any other law.

(2)No instrument effecting any disposition under this Act shall operate to sell or assign a right of occupancy or create, transfer or otherwise affect any right of occupancy, lease or mortgage until it has been registered in accordance with the laws relating to the registration of instruments affecting the land in respect of which the disposition has been made.

(3)The provisions of subsection (2) shall not apply to any dispositions exempt from registration.

(4)This section shall not apply to or affect the operation of any contract for a disposition under this Act.

63. Execution of instruments in writing

(1)Without prejudice to the provisions relating to attestations and execution under the Land Registration Act and Registration of Documents Act, every instrument effecting any disposition under this Act shall, subject to the provisions of this Act, be executed in accordance with the provisions of this section by each of the parties consenting to it.

(2)The execution of any instrument referred to in subsection (1) by a person shall consist of his signing it or affixing a thumbprint or other mark which shall evidence his personal acceptance of that instrument.

(3)The execution of any instrument referred to in subsection (1) by a corporate body, an association, a cooperative society or any other like organisation shall be effected in any manner authorised by the constitution of those organisations or by any law for the time being in force.[Cap. 4 s. 8][Cap. 334; Cap. 117]

64. Writing required for enforcement of contracts relating to land

(1)A contract for the disposition of a right of occupancy or any derivative right in it or a mortgage is enforceable in a proceeding only if—

(a)the contract is in writing or there is a written memorandum of its terms;

(b)the contract or the written memorandum is signed by the party against whom the contract is ought to be enforced.

(2)A contract for a disposition referred to in subsection (1) may be made using a prescribed form.

(3)The Minister may, after seeking and taking into account the recommendations of the Commissioner and any other organizations having an interest in the operation of dispositions of land, prescribe terms and conditions which shall, subject to any modification or limitation provided for in the contract, form a part of any contract for the disposition of a right of occupancy.

(4)This section shall not apply to—

(a)a short term lease;

(b)a disposition by order of a Court;

(c)a disposition by operation of laws.

(5)This section shall not affect—

(a)the creation or operation of a resulting, implied or constructive trust;

(b)the making or operation of a will;

(c)an arrangement, recognised by customary law, for the temporary disposition of a customary interest in land.

65. Person may make disposition to himself

(1)For avoidance of doubt, it is hereby declared that any person may make a disposition to himself and any other person or together with any other person to himself alone.

(2)The sale, assignment or disposition referred to in subsection (1) is enforceable in the same manner as a sale, assignment or disposition to another person.

66. Covenants to be implied in certain instruments

(1)This section applies to an instrument coming into operation on or after the date of the coming into effect of this Part of the Act which for valuable consideration—

(a)transfers or sells a right of occupancy in land;

(b)creates, transfers or assigns a lease.

(2)Every instrument to which this section applies contains the implied covenants set out in section 67 unless a contrary intention is expressed in the manner provided for in this section.

(3)A covenant implied in an instrument under this Act has the same force and effect and may be enforced in the same manner as if it has been expressed in that instrument, subject, however, to subsection (4).

(4)A covenant implied in an instrument under this Act may be negated, varied or extended—

(a)by the express terms of the instrument;

(b)by a written memorandum executed as the instrument was required to be executed, by the parties to the instrument; or

(c)in the case of a short term lease that is not made in writing, by the express or implied agreement of the parties.

(5)The covenants implied in an instrument by the section relate only to the acts and omissions of—

(a)the person who creates, transfers or assigns the right of occupancy, lease or mortgage;

(b)all persons through whom that person derives title otherwise than by purchase for valuable consideration.

67. Implied covenants

The following are the covenants implied, subject to section 66, in every instrument to which section 66 refers—

(a)a disposition of a right of occupancy or a lease is to be taken to include and to convey with the interest being conveyed all rights, easements, and appurtenances belonging to the land, or the interest being conveyed or usually held or enjoyed with the land or the interest being conveyed, but this covenant does not give a person a better title to any interest in land referred to in this covenant than the title which the disposition of which it is a part gives that person;

(b)a person obtaining a right of occupancy or a lease by means of a disposition not prejudicially affected by notice of any instrument, fact or thing, unless—

(i)it is within that person's knowledge, or would have come to that person's knowledge if any inquiries and inspections had been made which ought reasonably to have been made by that person; or

(ii)it has in the disposition as to which a question of notice arises, come to the knowledge of the person's advocate or agent as such if such inquiries had been made as ought reasonably to have been made by that advocate or agent as such,

except that the covenant in this paragraph does not exempt the person referred to in this paragraph from any liability under or from any obligation to perform or observe any covenant, condition, provision or restriction contained in any instrument under which his title is derived, mediately or immediately, and that liability or obligation may be enforced in the same manner and to the same extent as if this covenant were not part of the disposition;

(c)a person who by an instrument to which section 66 refers creates, transfers, or assigns an interest in land (which term shall be taken to include a sublease), covenants with the grantee, transferee, assignee or sublessee that—

(i)he has the right and the power to create, transfer or assign that interest free of all encumbrances except those to which the interest will remain subject as specified in the instrument or as is provided for by the law;

(ii)the person who becomes entitled to the interest and all persons claiming under that person will be able quietly to enjoy the interest without disturbance by the grantor, transferor, assignor or lessor or all persons through whom that person derives title;

(iii)he will, at the request and expense of the person who becomes entitled to the interest, do all acts and execute all documents for the better assuring of the title to the interest as that person may reasonably require from time to time;

(iv)all rent due under the right of occupancy or lease, including, where relevant, a superior lease, has been paid and all covenants and conditions contained in it have been performed and observed.

Sub-Part 2 Dispositions to prejudice creditors

68. Purpose of this Sub-Part

The purpose of sections 68 to 76 is to enable a Court to order that any interest in land acquired or received under or through certain prejudicial dispositions of those interests in land made by a debtor or the value of those interests in land be restored for the benefit of unsecured creditors but no order referred to in this section has effect so as to increase or prejudice the value of any security held by a creditor over the interest in land of the debtor.

69. Prejudicial dispositions

(1)A disposition under this Act shall be taken to prejudice a creditor if it hinders, delays or defeats or is intended to hinder, delay or defeat the exercise by a creditor of any right of recourse to land or any interest in land in respect of which that disposition has been made in order to satisfy in whole or in part any debt owed to the creditor by the person making the disposition and that person is unable to pay all his debts without recourse to that land or any interest in it.

(2)A disposition shall not be taken to prejudice a creditor if it is made with the intention only of preferring one creditor over another.

70. Dispositions to prejudice creditors may be set aside

(1)A creditor, and any public officer, Government department or parastatal body charged with the responsibility for collection of money owing to the Government or any part of it by any person may apply to the Court under this section for an order by the Court to set aside a prejudicial disposition.

(2)An application made under this section shall—

(a)specify the land to which it relates;

(b)specify the disposition alleged to be prejudicial;

(c)be served on—

(i)the person who has made the disposition;

(ii)the person in whose favour the disposition has been made;

(iii)any other person involved in the disposition from whom compensation is sought.

(3)A Court may, subject to section 72, on being satisfied that an applicant has been prejudiced by a disposition to which this Sub-Part applies make an order—

(a)directing any person who acquired or received land under that disposition or through a person who acquired or received land under such a disposition—

(i)to pay any amount of compensation within any time to the applicant which the Court shall specify;

(ii)to re-assign a right of occupancy or a derivative right to the person who has made the prejudicial disposition;

(iii)to take any other action which the Court may specify;

(b)direct the debtor who made the prejudicial disposition—

(i)to hold the land restored to him through the re-assignment of a right of occupancy or derivative right under subparagraph (ii) of paragraph (a) of subsection (3) as a trustee for his creditors; and

(ii)to deal with the land so held only in accordance with any orders which the Court may make for the purpose of enabling the creditors to be paid by the debtor.

71. Protection of persons receiving land under prejudicial disposition

(1)Where a person acquires or receives land in respect of which a Court could make an order for a restoration or the payment of reasonable compensation under section 70, the Court shall not make that order against that person if that person proves that he—

(a)acquired or received the land in good faith and without knowledge of the fact that it has been the subject of a disposition to which section 70 applies, or

(b)acquired or received the land through a person who acquired or received it in the circumstances set out in paragraph (a).

(2)Reference to knowledge in this section shall be taken to include actual, constructive and imputed knowledge.

72. Application of this Sub-Part to customary dispositions

A creditor for whose protection of this Sub-Part of this Act applies who alleges and provides prima facie evidence that a disposition made under customary law has been made with the same purpose and effect as a prejudicial disposition to which this Sub-Part applies may apply to the Court under section 70 for that disposition to be set aside and the Court shall, on being satisfied that that customary disposition is a prejudicial disposition, apply the provisions of this Sub-Part to that prejudicial disposition.

Sub-Part 3 Sale of right of occupancy

73. Regaining possession of land after concluding contract for sale of right of occupancy

(1)Where, under a contract for the sale of a right of occupancy, the purchaser has entered into possession of the land, the vendor may exercise any contractual right to rescind the contract by reason of a breach of the contract by the purchaser only by—

(a)resuming possession of the land peaceably; or

(b)obtaining an order for possession of the land from the Court in accordance with the provisions of section 74.

(2)This section does not prevent the vendor from claiming damages for the breach of a contract for a sale or for breach of any other duty to the vendor which the purchaser may be under independently of the contract or affect the amount of damages which the vendor may claim by way of damages.

(3)Any term express or implied in a contract or other instrument which conflicts with this section shall be inoperative.

74. Procedure for obtaining order for possession

(1)Where the vendor proposes to seek to regain possession of land under section 73, he shall serve a notice on the purchaser which shall inform the purchaser—

(a)of the nature and extent of the breach complained of by the vendor;

(b)whether the vendor considers that the breach is capable of being remedied by the payment of a stated amount of money owing under the contract;

(c)whether the vendor considers that the breach is capable of being remedied by the purchaser doing or desisting from doing anything or paying reasonable compensation or both, and of the thing that the purchaser must do or desist from doing or the amount of compensation that must be paid or both to remedy the breach and the time, being not less than thirty days within which the actions referred to in this paragraph must be completed;

(d)where the vendor considers that the breach is capable of being remedied, of the period within which the purchase must remedy the breach;

(e)of the consequence that if the purchaser fails to remedy the breach or if the vendor does not consider that the breach can be remedied, the vendor may seek an order from the Court to possess the land and rescind the contract;

(f)of the right of the purchaser, within not more than fifteen days, to—

(i)apply to Court for relief against the rescission of the contract;

(ii)tender an amount by way of compensation different to that proposed by the vendor in the notice;

(iii)propose an alternative remedies to those set out in the notice;

(iv)propose an alternative time for the completion of the actions referred to in paragraph (c).

(2)The fact that the notice served under subsection (1) does not comply in every particular with the provisions of subsection (1) shall not—

(a)render it invalid so long as the purport of the notice is clear; or

(b)absolve the purchaser from the consequences of not responding to the notice.

75. Relief against rescission of contract for sale of right of occupancy

(1)Where the vendor, after serving on the purchaser a notice under section 74, applies to the Court for an order for possession of the land or where the vendor has peaceably entered on to the land in order to regain possession under section 73, the purchaser may apply to the Court for relief against the rescission of the contract either—

(a)in the proceedings for an order for possession;or

(b)in a proceeding brought by the purchaser.

(2)Where the vendor has peaceably entered on to the land the purchaser must apply for relief within ninety days of the entry on to the land.

(3)The Court may grant such relief on any terms which it thinks fit, including relief for breach of any term or condition of the contract that is not capable of being remedied.

(4)An application for relief under this section is not in itself to be taken as an admission by the purchaser that—

(a)there has been a breach of the contract by the purchaser;

(b)by reason of the breach, the vendor has the right to rescind the contract;

(c)a notice has been duly and properly served on the purchaser;

(d)the time for remedying a breach or for paying an amount by way of compensation has expired,

and the Court may grant relief without determining any of those matters.

(5)Any term, express or implied, in a contract or other instrument to which this section applies which conflicts with or purports to set aside or negates this section shall be inoperative.

76. Purchaser of right of occupancy may seek relief against performance of contract to assign

(1)Where a Court will not or would not, in the exercise of its discretion, order the specific performance by a purchaser of a contract to sell a right of occupancy but the purchaser is not entitled to rescind or repudiate the contract, the purchaser may apply to the Court for relief under this section.

(2)On any application made under subsection (1) the Court may make an order—

(a)rescinding the contract;

(b)requiring the vendor to refund any deposit and other money paid to the vendor by purchaser;

(c)declaring that the purchaser has a lien on the land to which the contract relates to secure payment by the vendor of any amounts ordered to be refunded to the purchaser under paragraph (b).

(3)The grant of relief under this section does not deprive the vendor of any right to claim damages from the purchaser for failure to perform the contract and in awarding damages, the Court shall take account of any relief granted under this section.

(4)Any term, express or implied, in a contract or other instrument to which this section applies which conflicts with or purports to set aside or negates this section shall be inoperative.

Part IX – Leases

Sub-Part 1 General provision

77. Application of this Part

(1)Unless otherwise provided for, the provisions of sections 77 to 110 of this Part shall apply to all leases, other than leases governed by customary law, made or coming into effect after the coming into operation of this Part of this Act.

(2)The parties to a lease made or coming into effect before the enactment of this Act may agree in writing to adopt or incorporate any of the provisions of this Part into that lease and where that agreement is made, the provisions so adopted or incorporated shall, unless the agreement otherwise provides, as from the date of the agreement, become a part of the lease and enforceable in every respect as such.

(3)The Minister may, with the approval of the National Assembly signified by a resolution and by order published in the Gazette, exempt any leased land or class of leased land or building comprised in any lease from the application of any of the provisions of this Part.

(4)In this Part, unless the context expressly or by implication renders it unfeasible, references to a lease include a sub-lease.[Act No. 11 of 2005 s. 14]

78. Power to lease right of occupancy

(1)Subject to the provisions of this Act, the holder of a granted right of occupancy may lease that right of occupancy or part of it to any person for a definite period or for the life of the lessor or of the lessee or for a period which though indefinite, may be terminated by the lessor or the lessee, and subject to any conditions which may be required by this Act or any other law applicable to leases or which he may think fit.

(2)Subject to the provisions of section 41(2), the maximum term for which any lease may be granted shall be ten days less than the period for which the right of occupancy has been granted for a definite period.

(3)In determining the amount of rent payable under a lease, regard shall be had to—

(a)size of the land;

(b)use of the land

(c)value of the land as evidenced by leases in the market in the area where the land is located;

(d)location of the land; and

(e)condition of the land or building.

(4)For purposes of determining the amount of rent payable, it shall be taken into account that the lessor will pay—

(a)the land rent under a granted right of occupancy;

(b)the premium for insuring the land;

(c)the property tax and other rates leviable upon the land under any law; and

(d)any repairs for which the lesser is liable by agreement or customs or any law.

(5)Where part only of the land which is held of a right of occupancy is leased, the lease shall be accompanied by a plan or other description of the leased part which is sufficient to enable the part to be accurately identified and, where so required, registered.[Act No. 11 of 2005 s. 15]

79. Periodic leases

(1)Where in any lease—

(a)the term is not specified and no provision is made for the giving of notice to terminate the tenancy, the lease shall be deemed to be a periodic lease;

(b)the term is from week to week, month to month, year to year or any other periodic basis, it shall be treated as a term for a period equal to its minimum possible duration;

(c)the lessee remains in possession of land with the consent of the lessor after the term of a lease has expired, then—

(i)unless the lessor and lessee have agreed, expressly or by implication, that the continuing possession shall be for some other period, the lease shall be deemed to be a periodic one; and

(ii)all the terms and conditions of the lease that are consistent with the provisions of sub-paragraph (i) continue in force until the lease is terminated in accordance with this section.

(2)Where the holder of a right of occupancy permits the exclusive occupation of the land or any part of it by any person at a rent but without any agreement in writing, that occupation shall be deemed to constitute a periodic tenancy.

(3)The periodic tenancy to which paragraph (a) of subsection (1) refers shall be the period by reference to which the rent is payable.

(4)A periodic tenancy may be terminated by either party giving to the other notice, the length of which shall be not less than the period of the tenancy and shall expire on one of the days on which rent is payable.

80. Short term leases

(1)A short term lease is a lease which is—

(a)made for a term of one year or less;

(b)a periodic tenancy for periods of one year or less;

(c)a lease to which subsection (2) of section 79 applies.

(2)A short term lease may be made orally or in writing.

(3)A short term lease is not a registrable interest in land but any lease of a short term lease may—

(a)where the short term lease has been granted out of a right of occupancy registered under the Land Registration Act, enter a caveat under Part IX of that Act to protect that lease;[Cap. 334]

(b)where the short term lease has been granted out of an interest in land registered of under the Registration Documents Act, enter a caveat under section 32 of that Act to protect that lease.[Cap. 117]

81. Lease terminating on occurrence of future event

A lease which comes into operation on or after the date on which this Part of this Act comes into operation which provides for its termination or permits notice of its termination to be given on the occurrence of a future event is not invalid by reason only of that fact if the event is sufficiently defined in the lease so as to be identified when it occurs.

82. Lessee remaining in possession after termination of lease without consent of lessor

(1)Where a lessee remains in possession of land without the consent of the lessor after the lease has been terminated or the term of the lease has expired, all the obligations of the lessee under the lease continue in force until such time as the lessee ceases to be in possession of the land.

(2)A lessor who accepts rent in respect of any period after the lease has been terminated or the term of the lease has expired is not, by reason only of that fact, to be taken as having given consent to the lessee remaining in possession of the land or as having given upon any of the rights or remedies of the lessor against the lessee for breach of a covenant or condition of the lease but where the lessor continues for two months to accept rent from a tenant who remains in possession after the termination of the lease, a periodic lease from month to month shall be deemed to have come into force.

83. Future leases

(1)For the avoidance of doubt, it is hereby provided that a lease of a right of occupancy may be made for a term to begin on a future date, not being later than twenty one years from the date on which the lease is executed.

(2)A feature lease which is expressed to be for a period of more than five years shall be of no effect unless and until it is registered under the law applicable to the registration of interests in the land out of which that future lease has been created.

84. Lessor's consent to dealing with leases

Where a lease contains a condition, express or implied, by the lessee that he will not transfer, sublet, mortgage or part with the possession of the land leased or any part of it without the written consent of the lessor, no dealing with the lease shall be registered until the consent of the lessor has been produced to, and authenticated to the satisfaction of the Registrar.

85. Notice by joint occupiers

Where a lease is entered into by—

(a)two or more lessors as co-occupiers; or

(b)two or more lessees as co-occupiers,

and the lease is terminable by notice, the notice must be given by and to all the co-occupiers, unless all the parties to the lease have agreed otherwise, expressly or by implication.[Cap. 4 s. 8]

86. Sublease for term same as or longer than term of head lease

(1)This section applies to a sublease coming into operation after the date of commencement of this Act under which a lessee enters or purports to enter into a sublease for a term which will expire at the same time as or later than, the expiry of the term of the head lease.

(2)A sublease to which this section applies does not operate as an assignment of the head lease to the subleases, unless a contrary intention appears from the sublease or from the circumstances surrounding the granting of the sublease.

(3)Where the term of the sublease to which this section applies will expire after the expiry of the term of the head lease, then—

(a)the term of the sublease is reduced, so as to expire one day earlier than the term of the head lease, but without prejudice to any remedies which the subleases may have in respect of that reduction;

(b)if the term of the head lease is extended or renewed beyond the term for which the sublease was created, the sublease shall expire at the end of that original term; or

(c)if the term of the head lease is extended or the head lease is renewed, the term of the sublease is extended so as to expire—

(i)one day earlier than the extended term of the head lease or the term of the head lease as renewed; or

(ii)one day earlier than the time at which the head lease is expressed to expire,

whichever time is the earlier.

(4)The parties to a lease and sublease to which this section refers may renegotiate any terms or conditions of the sublease but no renegotiated terms or conditions shall be more onerous to or impose more obligations on the subleases than the original terms and conditions.[Cap. 4 s. 8]

87. Surrender to enable new head lease to be entered into not to affect sublease

(1)The surrender of a lease for the purpose of enabling a new lease to the same lessee to be entered into does not require the surrender of any sublease in respect of the surrendered lease, if, on or before the date on which the term of the new head lease will expire—

(a)the term of the sublease will expire; or

(b)in the case of a sublease which is a periodic tenancy, the sublease may be terminated by the giving of the specified period of notice of termination and the expiry of that period.

(2)A sublease preserved under subsection (1)—

(a)continues in force as though it had been entered into in respect of the new head lease; and

(b)all rights and obligations under the sublease, including those which relate to any period before the surrender of the head lease, continue to be enforceable, except to the extent that any such obligation is, by reason of the fact that a new head lease has been entered into, more onerous than it would have been had the original head lease not been surrendered.

(3)A sublease entered into in respect of a surrendered lease includes for purposes of this section any sublease entered into by a person deriving title through the lessee under the surrendered lease.

Sub-Part 2 Covenants, conditions and powers implied in leases

88. Covenants implied in leases on part of lessor

(1)There shall be implied in every lease covenants by the lessor with the lessee binding the lessor—

(a)that, so long as the lessee pays the rent and observes and performs the covenants and conditions contained or implied in the lease and on his part to be observed and performed, the lessee shall peaceably and quietly possess and enjoy the land leased during the term of the lease without any lawful interruption from or by the lessor or any person rightfully claiming through him;

(b)not to use or permit any adjoining or neighbouring land of which he is the occupier under a right of occupancy or a lessee in any way which would render the leased land or any buildings on the leased land unfit or materially less fit for any purpose for which they were leased or may, consistent with the terms and conditions of the lease, be used;

(c)where part only of a building is leased, to keep the roof, all external and main walls and main drains, and the common parts and common installations and facilities, including common passages and walkways in a proper state of repair;

(d)where any dwelling house, flat, or room is leased, that house, flat or room is fit for human habitation at the commencement of the tenancy and will be kept fit for human habitation during the lease;

(e)that if at any time the leased premises or any part of them are destroyed or damaged—

(i)by fire, flood or explosion accident not attributable to the negligence of the lessee, his invitees or employees;

(ii)by civil commotion;

(iii)by lightning, storm, earthquake, volcanic activity or other natural disaster,

so as to make the leased premises or any part of it wholly or partially unfit for occupation or use, the rent and any contribution payable by the lessee to the outgoings on the premises or it just proportion of that rent of contribution according to the nature and extend of the damage sustained shall be suspended and cease to be payable until the leased premises have been again rendered fit for occupation and use, but that if the leased premises have not been so rendered fit for occupation and use within six months of their destruction or damage as is refereed in this paragraph, the lessee may at his option and on giving one month's notice of his intention so to do, terminate the lease;

(f)if it is an express or implied term of the lease that the leased land or a building, on it may be used for any one or more specific purposes, the lessee may terminate the lease, on giving one month's notice to the lessor, if at any time during the currency of the lease, the land or building cannot be, or can no longer lawfully be used, for any one or more of those purposes;

(g)unless otherwise specified in the lease, to pay all rates, taxes, dues and other outgoings which are payable in respect of the land leased during the continuance of the lease unless the same are or shall be payable exclusively by the lessor under any law.

(2)There shall be implied in every lease convenants by the lessor with the lessee empowering the lessor—

(a)at all reasonable times, to enter, either personally or by agents, the leased land or buildings for the purpose of inspecting their condition and repair and for carrying out repairs and making good any defects which it is the lessor's obligation so to do but that in the exercise of that power, the lessor will not unreasonably interfere with the occupation and use of the land and buildings by the lessee;

(b)to terminate the lease by serving a notice of intention to terminate the lease on the lessee where—

(i)any rent is unpaid for one month after the due date for payment whether or not a demand in writing for payment has been made by the lessor or an agent of the lessor;

(ii)the lessee has failed for a period of one month to observe or perform any condition, covenant or other term, the observation or performance of which has been assumed by the lessee expressly or impliedly in the lease.

89. Convenants implied in leases on part of lessee

(1)There shall be implied in every lease, other than a short term lease, covenants by the lessee with the lessor binding the lessee—

(a)to pay the rent reserved by the lease at the times and in the manner specified in the lease;

(b)to use any land in a sustainable manner and in accordance with any conditions imposed on that use of that land by the lease, or with any written law or with any provisions in a grant of a right of occupancy of the land out of which that lease has been created and in particular, unless the purpose for which the land has been leased cannot be carried out without so doing, not to cut down, injure or destroy any living tree on the land;

(c)to yield up the land and buildings in the same condition as they were when the term of the lease began, except that the lessee is not bound to repair damage or restore the land and buildings to the same conditions they were at the beginning of the lease where the damage or deterioration of the condition is caused by—

(i)reasonable wear and tear;

(ii)fire, flood or explosion or other accident not attributable to the negligence of the lessee, his invitees or employees;

(iii)civil commotion;

(iv)lightning, storm, earthquake, volcanic activity or other natural disaster;

(d)to keep all boundary marks in repair;

(e)subject to the lessor's obligations set out in paragraph (d) of subsection (1) of section 88 and except where part only of a building is leased, to keep all buildings comprised in the lease in a reasonable state of repair, regard being had to the condition of the building and the materials of which it is composed at the beginning of the lease;

(f)subject to the lessor’s obligations set out in paragraphs (c) and (d) of subsection (1) of section 88, where part only of a buildings is leased, to keep the leased part of the building in a reasonable state of repair, regard being had to the condition of the building and the materials of which it is composed at the beginning of the lease;

(g)to permit the lessor or his agent or employees at all convenient times and after reasonable notice, to enter on the leased land or buildings to examine their condition and to undertake any repairs and make good any defects for which the lessor is responsible;

(h)to repair or make good any defect or breach of covenant for which the lessee is responsible and of which notice has been given by the lessor to the lessee within any period which may be specified in the notice;

(i)not to transfer, mortgage, charge, sublease or otherwise part with the possession of the leased land or buildings or any part of it without the previous written consent of the lessor, that consent not to be unreasonably withheld;

(j)where a termination order has been served and, if disputed, confirmed by a Court, to render up possession of the leased land and buildings peaceably and without further dispute.

(2)There shall be implied in a short term lease only the following covenants by the lessee with the lessor binding the lessee, that is to say, those covenants set out in paragraphs (a), (b), (c), (g), (i) and (j).[Cap 4 s. 8]

90. Application of covenants to customary leases

(1)Subject to the provisions of section 21 of this Act, the parties to a customary lease may adopt and incorporate into such a lease any or all of the covenants set out in sections 88 and 89.

(2)The Minister may, after taking account of the advice of the Commissioner, prescribe that such of the covenants as are set out in sections 88 and 89 as he shall determine shall be implied in a customary lease in the same manner and to the same extent as they are implied in the leases and the parties shall adopt provisions of section 62 of this Act.

91. Meaning of reference to the "usual covenants"

In a lease coming into effect after the commencement of this Act, unless the context requires otherwise, a reference to "the usual covenants" is to be taken as a reference to the covenants implied in that lease by sections 88 and 89.

92. Meaning of "in a reasonable state of repair"

In a lease coming into effect after the commencement of this Act, a covenant to keep a building or part of it "in a reasonable state of repair" (or like expression) shall, in the absence of an express provision to the contrary, mean in such a state of repair as that which a prudent owner might reasonably be expected to keep his own building, due allowance being made for the age, character and locality of the building and the means of the person under the obligation to comply with such a covenant provided that, there shall not be read into any such covenant an undertaking by a lessee to put any building or part of it into a better condition than it was in at the commencement of the lease.

93. Consent by lessor to application by lessee under lease

(1)On and after the enactment of this Act, a covenant by the lessee not to take an action without the consent of the lessor shall be construed as requiring the lessor not unreasonably to withhold consent to the taking of that action by lessee.

(2)Where an application is made by a lessee to a lessor for consent to take one or more of the following action, that is to say—

(a)transfer or assign the lease;

(b)enter into a sublease;

(c)part with possession of the leased land or buildings;

(d)change the use of the land or buildings from a use which is permitted under the lease;

(e)extend, improve, add on to or in any other way develop any building beyond what is permitted in the lease;

(f)create a mortgage over the lease;

(g)take any of the actions referred to in subparagraph (a), (b), (c), (d), (e) or (f) in relation to any part of the leased land or buildings, or for any part of the term of the lease,

the lessor must, on receiving the application and within a reasonable time thereafter—

(i)give that consent; or

(ii)withhold that consent,

and in either case must inform the lessee in writing of his decision on the application.

(3)Without limiting the generality of the lessor’s obligation under subsection (1), consent is unreasonably withheld if the lessor as a condition of or in relation to the giving of consent—

(a)requires the lessee to pay any money by way of additional rent, or a premium or a fine or other consideration for the consent, other than the payment of the lessor's reasonable expenses incurred in connection with the giving of consent;

(b)imposes on the lessee any unreasonable condition or per-condition;

(c)where the lessee proposes to transfer or assign the lease or enter into a sublease, objects to the gender or nationality or other personal characteristic of the transferee, assignee or subleases where the circumstances are such that a reasonable person would consider that those factors are irrelevant to the granting of such consent.

(4)A lessor who refuses consent or gives consent subject to a condition or pre-condition must, if the lessee so requests in writing, inform the lessee as soon as may be of the reasons for the refusal or, as the case maybe, for the imposition of the condition or pre-condition.

(5)The lessee or any person at the request of the lessee involved in a transaction to which this section applies, who has paid any money or suffered any loss in connection with subsection (3), may recover that money and seek damages for that loss from the lessor.

(6)This section does not prevent the inclusion in a lease of a covenant binding the lessee absolutely not to take any action of the kind referred to in subsection (2).

Sub-Part 3 Transfers, assignments and transactions

94. Merger of lessor's interest not to affect remedies

(1)Where a sublessor surrenders his head lease to or merges his head lease with the right of occupancy out of which it was created, the holder of the right of occupancy shall have all the same remedies against the subleases for non-performance or non-observation of the covenants and conditions expressed or implied in the sublease and all the same rights to give notice of the termination of the sublease to the subleasee as the sublessor had before he surrendered or merged his head lease.

95. Burden and benefit of covenants to run with reversion

(1)Where the interest held by the lessor under a lease (the reversion) ceases to be so held by the lessor (whether by transfer, assignment, grant, operation of law or otherwise), then, unless a contrary intention appears from the lease, expressly or impliedly, or from some other circumstance—

(a)the obligations imposed by every covenant of the lease on the lessor run with the reversion and may be enforced by the person who is from time to time entitled to the lease against the person who is from time to time entitled to the reversion;

(b)the rights to the benefits of every covenant of the lease which has reference to the subject matter of the lease imposed on the lessee may be exercised and enforced by the person who is from time to time entitled to the reversion against the person who is from time to time entitled to the lease.

(2)A person who becomes entitled to exercise a right to which paragraph (b) of subsection (1) refers may exercise that right even if it first became exerciseable or accrued before the time at which that person became so entitled, unless before that time, the right was waived or the lessee was released from the obligation to which the right relates.

(3)Where in respect of a lease—

(a)there has been a division of the reversion into different parts so that different persons are lessors of the different parts; or

(b)the lease terminated as to part only of the land comprised in the lease,

the obligations referred to in paragraph (a) and the rights and remedies referred to in paragraph (b) of subsection (1) shall be apportioned, and to the extent required by that apportioned, remain attached to each part of that reversion or to that part of the land in respect of which the lease has not been terminated as the case may require and may be enforced by the person entitled to enforce those obligations under paragraph (a) and exercised by the person entitled to exercise those rights and remedies under paragraph (b) of subsection (1).[Cap. 4 s. 8]

96. Effect of payment by lessee to assignor of reversion

(1)Where a lessor has transferred or assigned the reversion, payment of all or part of the rent or other money due under the lease to the transferor or assignor by the lessee who does not have actual notice of the transfer or assignment discharges the lessee to the extent of that payment.

(2)For purposes of subsection (1), registration of a transfer of the reversion is not, in itself, actual notice to the lessee of the transfer, notwithstanding any other provision to the contrary in any other written law.[Cap. 4 s. 8]

97. Transferor or assignor of lease released from liability to pay rent and observe covenants thereafter

(1)In respect of any lease or any transfer or assignment of a lease or part of it made or coming into effect on or after the date of the commencement of this Act, the rule of common law that a transferor or assignor of a lease remains liable on the personal covenant to the lessor for payment of rent and for all breaches of covenants, notwithstanding that the transferor or assignor is no longer in possession or occupation of the leased land is abolished and the effect of a transfer or assignment of a lease is, as from that date, to discharge absolutely and without more the transferor or assignor from any obligation to pay rent or to observe any covenants in respect of the land as from the date of the transfer or assignment, whether the person to whom the lease has been transferred or assigned is in or goes immediately into occupation or possession of the land so transferred or assigned.

(2)Where the transferor or assignor remains in occupation of the leased land notwithstanding transfer or assignment, he shall remain liable to pay rent and comply with all the covenants as if he were still the lessee for as long as he shall remain in occupation.

(3)Subsection (1) shall not apply to absolve a transferor or assignor of a lease from any obligation to pay rent or remedy and breach of a covenant which accrued or arose during the term of the lease when that transferor or assignor was bound by all the covenants in that lease and the lessor may enforce all such obligations of that lease which have so accrued or arisen against that transferor or assignor notwithstanding that the lease has been transferred or assigned.

(4)As from the date of the commencement of this Act, the rule of common law that a lessee remains liable to pay rent and comply with all the covenants notwithstanding that he has, with the agreement of the lessor, vacated the leased land before the date for the termination of the lease is abolished and the provision set out in subsection (5) shall forthwith apply.

(5)A lessee who, with the agreement of the lessor, vacates land before the termination of a lease shall, unless the lease provides expressly for a shorter period, remain liable to pay rent and observe all the covenants in the lease for one year from the date on which he vacates the land or buildings except that where the lessor leases that land or any buildings to another person before the end of the period of one year, the provisions of subsection (1) shall apply from the date of the execution of that lease.

(6)The provisions of subsection (3) shall apply to a lessee referred to in subsection (5) as if the words "transferor or assignor" wherever they appear, they are substituted the words "lessee to whom subsection (5) applies" and at the end of the subsection, for the words "the lease has been transferred or assigned" there are substituted the words "he has vacated the land".

(7)The provisions of subsections (1) and (5) apply in like manner to the transfer, or assignment of a lease of a part of the leased land and to the vacating of a part of the leased land as they apply to the transfer or assignment of the lease of all the land and the vacating of all the land comprised in the lease.

(8)Any term expressed or implied in a lease or in a condition or covenant in a lease conflicting with this section is of no effect.

98. Transferee or assignee as lessee

(1)A person who accepts a transfer or assignment of a lease becomes the lessee without any need for that person to—

(a)acknowledge the lessor as such;

(b)take possession of the land or buildings complied in the lease.

(2)Where there is a covenant in the lease that the lessee will not, or will not without the consent of the lessor, transfer or assign the lease, a transfer or assignment has effect whether or not the lessor has consented to that transfer or assignment and whether or not that transfer or assignment is in breach of the covenant but this subsection does not prevent the lessor from seeking and remedy for and such breach.

(3)A person to whom this section applies who became a lessee—

(a)is bound to pay to the lessor the rent payable under the lease;

(b)is bound to observe and perform all the covenants on the part of the lessee expressed or implied in the lease;

(c)may enforce all covenants made by and binding on the lesser expressed or implied in the lease.

(4)Section 95 of the Land Registration Act applies to any lease created or coming into effect under this Part.[Cap. 334][Cap. 4 s. 8]

Sub-Part 4 Remedies and relief

99. Application of this Sub-Part to customary leases

This Sub-Part shall apply to all leases and licences.

100. Application of this Sub-Part to customary leases

(1)Subject to the provisions of this section, the provisions of this Sub-Part shall not apply to customary leases.

(2)The provisions of this Sub-Part shall apply to the lease of a dwelling-house expressed to be leased by a customary leases where there is no rule of customary law applicable.

(3)Where any land or buildings have been leased by a customary lease which the parties to that lease have agreed shall be governed by any of the provisions or part of this Part, then the provisions of this Sub-Part shall apply to that customary lease.

(4)Where, in any customary lease other than a customary lease to which subsections (2) and (3) apply, a lessor seeks to take possession of the leased land or buildings on the grounds that a lessee has not complied with the terms and conditions of that customary lease, then—

(a)the lessor must act and act only in strict accordance with the customary law applying to the leases;

(b)the lessee who is alleged not to have complied with the terms and conditions of the customary lease may refer the matter to the Village Land Council and the Village Land Council shall in considering the matter—

(i)have regard to the extent to which the customary law applicable to the lease provides for a fair balance of rights and duties between the lessor and the lessee and in particular whether the lessee has been given notice that he is not complying with the terms and conditions of the lease and an opportunity to rectify the matter;

(ii)where it considers that the lessee ought to be granted relief against the lessor's demand for possession of the leased land or buildings, be guided by the provisions of sections 96 and 97 and in particular whether the lessor has conducted himself in relation to the lessee as respect the lease as a reasonable lessor should so conduct himself.

(5)In having regard to whether a lessor under a customary lease has conducted himself as a reasonable lessor should, the Village Land Council shall, while having regard to the customary law applicable to the lease, be guided by the provisions of this Part specifically applicable to lessors.

(6)A lessor or lessee who is dissatisfied with a determination by a Village Land Council may appeal to the district Court which shall apply to that appeal, as far as the circumstances shall permit, the provisions of section 97.

101. Determination of lease

(1)On and after the commencement of this Act, a lessor may terminate a lease for non-payment of rent or for breach of any covenant in accordance and only in accordance with the provisions of this Sub-Part, notwithstanding any provision in any lease to the contrary.

(2)Any term expressed or implied in a lease or in any condition or covenant in a lease which purports to avoid or has the purpose or effect of avoiding the need to comply with all or any sections in this Sub- Part is of no effect.[Act No. 11 of 2005 s. 16]

102. Distress for rent

(1)Subject to the provision of subsection (3), a lessor may only exercise his right to levy distress for rent after service of a notice in accordance with the provision of section 104.

(2)Where it is not possible to peacefully exercise a right to levy distress, the lessor shall only do so under the order of the Court.

(3)The exercise of the right to levy distress shall only be exercised using a Court broker or a broker of a tribunal.[Act No. 11 of 2005 s. 17; Cap. 4 s. 8]

103. Termination of lease for non-payment of rent or breach of covenant

(1)Subject to the notice served under section 104 or 205 of this Act, a lessor may exercise any right to terminate a lease for failure to pay rent due under the lease or for a breach of any covenant or condition in the lease.

(2)The Minister may make rules of the Court providing for the procedures to be followed in applying for and the granting of an order for possession and such rules may provide for the granting of a summary order of possession in circumstances where the Court is satisfied that the lessee has no reasonable defence or excuse for the non-observance of any covenant or condition in the lease or for not complying with any notice from the lessor requiring the breach to be remedied.[Act No. 11 of 2005 s. 18]

104. Notice of intention to terminate a lease for breach of covenant

(1)Where a lessee is in arrears with the rent and has been in arrears for not less than thirty days, the lessor may serve on that lessee a notice of intention to terminate the lease.

(2)A notice served on a lessee under this section shall adequately inform the recipient of all of the following matters:

(a)the nature and extent of the breach complained of;

(b)the amount which must be paid to remedy the breach;

(c)the period, being not less than thirty days from the date of the service of the notice, within which the breach must be remedied;

(d)in the event that the breach is not remedied the lease shall terminate at the expiry of thirty days from the date of service of notice.

[Act No. 11 of 2005 s. 19]

105. Notice of intention to terminate lease for breach of covenant other than to pay rent

(1)Where a lessee is in breach of a covenant or condition in the lease, the lessor may serve notice of intention to terminate the lease on that lessee.

(2)A notice served on a lessee under this section shall adequately inform the recipient of the following matters:

(a)the nature and extent of the breach;

(b)where the lessor considers that the breach is capable of being remedied—

(i)the action which the lessor must take or desist from taking to remedy the breach;

(ii)the amount (if any) of compensation which the lessee must pay to remedy the breach and to reimburse the lessor's reasonable expenses incurred in connection with the breach;

(iii)the reasonable time, being, not less than thirty days, within which the lessor must take or desist from taking the action specified in subparagraph (i);

(c)in the event that the breach is not remedied the lease shall terminate on expiry of thirty days from the date of the service of notice.

[Act No. 11 of 2005 s. 20]

106. Consequential provisions relating to notices under sections 104 and 105

(1)Where the lessor has served a notice on a lessee under section 104 and 105, he shall at the same time or as soon as practicable serve a copy of that notice on—

(a)subleases-

(b)spouse of the lessee;

(c)mortgagee of the lessee or of subleases;

(d)where the lessee is bankrupt, the trustee in bankruptcy of the lessee.

(2)The obligation of the lessor under subsection (1) only applies to those persons mentioned in that subsection of whose names and addresses the lessor has actual notice.

(4)The Minister may, by regulations, prescribe the form of the notice to be served under part.[Please note: numbering as in original.]

(5)Service of notice under the provisions of this Part shall be effected in person or by registered post and where the person to whom service is to be made is evading service or by some other reason, service cannot be made to that person physically, service may be effected by affixing the copy of the notice in a conspicuous place—

(a)on or as near as may be to the land where possible;

(b)where the land is village land, at the offices of the village council or other public place within the village;

(c)where the land is general land at the offices of the local authority having jurisdiction in the area where the land is located or on other public place in the area where that land is located; and

(d)publishing a copy in one or more newspapers circulating in Tanzania.

(6)The notice displayed or published pursuant to the provisions of this Part may be in English or Kiswahili or both languages.[Act No. 11 of 2005 s. 21]

107. Application for relief

(1)An application for relief may be made to a district Court—

(a)in a proceeding brought by the lessor for an order of termination of the lease;

(b)in a proceeding brought for the purpose by any of the persons referred to in subsection (2) before the lessor commences a proceeding mentioned in paragraph (a).

(2)An application of relief against an order of termination of a lease may be made by—

(a)the lessee;

(b)if two or more persons are entitled to the lease as co-occupiers, by one or more of them on their own behalf-

(c)a sublessee;

(d)a mortgagee for the lessee or a sublessee;

(e)the trustee in bankruptcy of the

Land Act

Chapter 113

Collections

Related documents

Land Act

Chapter 113

Part I – Preliminary provisions

1. Short title

2. Interpretation

Part II – Fundamental principles of National Land Policy

3. Fundamental principles of National Land Policy

Part III – Classification and tenure of land

4. All land vested in President as trustee

5. Transfer of general or reserved land to village land

6. Categories of reserved land

7. Declaration of hazardous land

Part IV – Administration

8. Minister’s responsibilities

9. Appointment of Commissioner for Lands

10. Functions of Commissioner

11. Appointment of officers

12. Land Allocations Committees

13. Information from Commissioner to members of public

14. Functions and roles of local government authorities under this Act

15. Conflict of interests

16. Protection of officers

17. National Land Advisory Council

18. Inquiries

Part V – Rights and incidents of land occupation

19. Rights to occupy land

20. Occupation of land by non-citizen restricted

21. Ceiling on land occupancy

22. Incidents of granted right of occupancy

23. Residential licence and its incidents

Part VI – Granted rights of occupancy

Sub-Part 1 Grant of right of occupancy

24. Application of this Part

25. Procedure for application for right of occupancy

26. Determination of application by Commissioner

27. Repealed

28. Repealed

29. Grant of right of occupancy

30. Repealed

30A. Saving provisions

Sub-Part 2 Conditions on right of occupancy

31. Payment of premium on grant of right of occupancy

32. Length of term of right of occupancy

33. Rent

33A. Exemption from land rent on Government

34. Conditions

35. Change of use

Sub-Part 3 Dispositions of right of occupancy

36. General provisions as to dispositions

37. Approval for dispositions

38. Supervisory powers over dispositions

39. Application for grant of approval for disposition

40. Reconsideration of application for approval for disposition

41. Criteria for determining application for grant of approval for disposition

42. Power to surrender right of occupancy

43. Procedure for surrender of right of occupancy

Sub-Part 4 Breach of conditions of right of occupancy

44. When breach of condition of right of occupancy arises

45. Liability to revocation for breach of condition

46. Fine for breach of condition

47. Summary action to remedy breach of condition

48. Action to enforce revocation for breach of condition

49. Revocation and its effects

50. Summary proceedings for recovery of rent

51. Abandonment of land held under right of occupancy

Sub-Part 5 Auctions of right of occupancy

52. Auction of and tenders for rights of occupancy

Part VII – Conversion of interests in land

Sub-Part 1 Validation of interests in general land

53. Validation of certain dispositions completed before coming into operation of this Act

54. Effect of non-application for certificate of validation

55. Validated derivative rights where certificate of validation not applied for

Sub-Part 2 Regularisation of interests in land

56. Application of sections 56 to 60

57. Purpose of and criteria for declaring scheme of regularization

58. Determination of whether to declare scheme of regularisation