The University Of Zambia Institute Of Distance Eduction Bachelor Of Laws
THE UNIVERSITY OF ZAMBIAINSTITUTE OF DISTANCE EDUCTIONBACHELOR OF LAWSMODULELPR 3920: LAND LAW
COPYRIGHTAll rights reserved. No part of this publication may be reproduced, stored in a retrieval system,or transmitted in any form or by any means, electronic or mechanical, including photocopying,recording or otherwise without the permission of the University of Zambia, Institute of DistanceEducation.Inquiries concerning reproduction or rights and requests for additional training materials shouldbe addressed to:The Director,Institute of Distance EducationThe University of ZambiaP.O. Box 32379LusakaZambiaTel: 211 290719Fax: 211 253952E-mail: director-ide@unza.zmWebsite: www.unza.zm1
ACKNOWLEDGEMENTThe University of Zambia (UNZA), Institute of Distance Education (IDE) wishes to thank Mr.Greenwell LYEMPE, for writing this first module of LPR 3920 titled LAND LAW.2
Table of Content COPYRIGHT . 1ACKNOWLEDGEMENT . 2STUDY SKILLS . 6NEED HELP? . 7LAND LAW COURSE OUTLINE . 8METHOD OF TEACHING . 10ASSESSMENT: . 10REQUIRED READINGS . 11RECOMMENDED READINGS . 11UNIT 1 . 12LAND LAW .12Introduction .12Learning Outcomes .12Definition of Land .12Sources of land law in Zambia .14Statutes Enacted by the Zambian Legislature .15Writings of Eminent Authors .17Summary .17UNIT 2 . 18HISTORICAL BACKGROUND OF LAND TENURE SYSTEM IN ZAMBIA .18Introduction .18Learning Outcomes .18Pre and Post-Independence Land Policy in Zambia .18Policy under the One Party State 1964 – 1972 .19The Western Province (Miscellaneous Provisions) Act, 1970 .20Land Reforms in the Second Republic .20The Doctrine of Tenure .21Unit Summary .26Activity 2.0 .26UNIT 3 . 27OWNERSHIP OF LAND AND ITS LIMITATIONS .27Introduction .27Learning Outcomes .27The Concept of Ownership.27Ownership at Common Law .27Unit Summary .34Activity .34UNIT 4 . 36FIXTURES AND FITTING .363
Introduction .36Learning Outcomes .36Fixtures .36Distinction between a Fixture and Fitting .36Tests for Determining Whether a Chattel Has Become a Fixture .36Landlord and Tenant.37Summary of Unit Three. .45Activity: .46UNIT 5 . 47CO - OWNERSHIP – CONCURRENT INTERESTS IN LAND .47Introduction .47Learning Outcomes:.47Co-ownership (Concurrent Interests in Land) .47Types of Co-ownership .47Joint Tenancy .47The Right of Survivorship (Jus Accrescendi) .48The Four Unities .48Unity of Possession .48The Unity of Interest .48Tenancy in Common .48Unit Summary .49Activity: .49UNIT 6 . 51LEASES AND LICENSES .51Introduction .51Learning Outcomes:.51Lease and Licenses .51The Essential Characteristics of a Lease .51Certainty of Duration .51Types of Leases (Tenancies) .52Tenancy at Will .52Tenancy at sufferance .53Periodic Tenancy .53Repair and Fitness for Habitation .54Implied Obligations and Rights of a Tenant .54Contractual Licence .55Licences Protected By Estoppel .56Unit Summary: .57Activity: .57UNIT 8 . 58MORTGAGES .58Introduction .58Learning Outcomes .58Mortgage.58Nature of a Mortgage as a Contract and as an Interest in Land .584
Types of Mortgages .58Legal Mortgage.59Equitable Mortgage .59Rights of the Mortgagor .59The Contractual Right to Redeem .59The Equitable Right to Redeem .59The Equity of Redemption .60Exclusion of the Right to Redeem .60Right to Foreclose .61Right to Take Possession .61Right to Appoint a Receiver .61Unit Summary: .61Activity: .61UNIT 9 . 62THE AFRICAN CONCEPT OF LAND OWNERSHIP .62Introduction .62Learning Outcomes .62Meaning of Land Tenure .62Direct Acquisition of Customary Land .62Transmission and Succession: Inheritance .63Reaction to Colonial Views .63Unit summary .65Activity .65UNIT 10 . 66COMPULSORY ACQUISITION OF PROPERTY IN .66ZAMBIA.66Introduction .66The Power of Eminent Domain .66The Public Lands Acquisition Ordinance .66The 1969 Referendum .67The Land Acquisition Act, 1970 .68Salient Provisions of the Act .69Unit summary .69Activity .705
Study skillsDistance learning is different from full time studying and therefore your approach will bedifferent. You will need to allocate enough time to study the material and decide on what tostudy. Keep in mind that you will be your own monitor and hence need self-discipline. You canfind other resources on study skills available on the web and we recommend a few links for edu/stdysk/stdyhlp.htmlYou can also go to www.google.com and type “self-study basics”6
Need help?If you face any difficulties as you study this module, contactThe Director,The Institute of Distance Education,University of ZambiaP.O Box 32379Lusaka, ZambiaEmail: director-ide@unza.zmWebsite: www.unza.zm7
Land Law Course OutlineCOURSE AIM:To impart knowledge on land tenure resolving of land disputes and advise on the acquisition oflandLEARNING OUTCOME: On completion of the course the students should be able to:1. Apply knowledge on ownership and land tenure.2. Resolve practical land disputes in society and further advice on how land can beacquired.3. Demonstrate an understanding of land policy, laws governing tenure, tenancy, leases, roleof the landlord and tenant.UNIT 1: INTRODUCTION TO LAND LAW1.0 Definition of Land1.2 Sources of land law in Zambia1.2.1 Statutes enacted by the Zambian legislature,1.2.2 English Common Law,1.2.3 Principles of Equity,1.2.4 Customary law,1.2.5. English Statutes applicable to Zambia by virtue of the English Law (Extent of Application)Act and the British Acts Extension Act,1.2.6 Judicial Precedents and1.2.7 Writings of eminent authors.UNIT 2: HISTORICAL BACKGROUND OF LAND TENURE SYSTEM IN ZAMBIA2.0 Outline the pre and post-Independence land policy in Zambia;2.1 Demonstrate an understanding of the One Party State land policy;2.2 Outline the recent land policy development.2.3 Outline the types of tenure and the meaning of tenure.UNIT 3: OWNERSHIP OF LAND AND ITS LIMITATIONS3.1 The meaning of ownership in relation to land;3.2 State the two types of Limitations to land ownership3.3 Clearly differentiate between statutory limitations and common law limitations.UNIT FOUR: FIXTURES AND FITTINGS4.1 Distinction between a fixture and a fitting,4.2 Identify the two tests applied in determining a fixture,4.3 Express an understanding of the common law exceptions to fixtures8
UNIT 5: CO - OWNERSHIP – CONCURRENT INTERESTS IN LAND5.0 Iintroduction5.1 Types of Co – Ownership5.1.1 Joint Tenancy5.1.2 The Right of Survivorship (Jus Accrescendi)5.1.3 The Four Unities5.1.3.1 Unity of Possession5.1.3.2 The Unity of Interest5.1.3.3 The Unity of Title5.1.3.4 The Unity of Time5.2 Tenancy in Common5.3 Co-Parcenary and Tenancy by Entireties5.4 Provisions of the Lands and Deeds Registry Relating to Co-OwnershipUNIT 6 LEASES AND LICENSES6.0 Introduction6.1 The Essential Characteristics of a Lease6.1.1 Certainty of Duration6.1.2 Exclusive Possession6.2 Types of Tenancies6.2.1 Tenancy at will6.2.2 Tenancy at Sufferance6.2.3 Periodic Tenancy6.2.4 A Lease or Tenancy for a Fixed Period6.2.5 Tenancy by Estoppel6.3 Implied Obligation of Landlord and Tenant6.3.1 Covenant for Quite Enjoyment6.3.2 Not to Derogate From the Grant6.3.3 Repair and Fitness for Habitation6.4 Implied Obligations and Rights of a Tenant6.5 Landlord and Tenant’s Remedies for breach of Covenants6.6 Licences6.6.1 Bare Licence6.6.2 Contractual LicenceUNIT 7 EASEMENTS AND PROFITS7.0 Introduction7.1 The Nature of Easements is Interests in Land7.2 The Essential Characteristics of an Easement7.2.1 There must be a Dominant and Servient Tenement7.2.2 The Dominant and Servient Tenement must not be Owned and occupied by the sameperson7.2.3 The Easement must Accommodate (Benefit) the Dominant Tenement7.2.4 The Easement must be Capable of Forming the Subject Matter of the grant9
7.3 Acquisition of Easements and Profits7.3.1 Express Grant or Reservation7.3.2 Statute7.3.3 Presumed Grant or Prescription7.3.3.1 The Prescription Act7.4 Recording of Memorial of Easement in a Certificate of TitleUNIT 8 MORTGAGES8.0 Introduction8.1 The Nature of a Mortgage as a Contract and as an Interest in Land8.2 Types of Mortgages8.2.1 Legal Mortgage8.2.2 Equitable Mortgage8.3 The Rights of the Mortgagor8.3.1 The Contractual Right to Redeem8.3.2 The Equitable Right to Redeem8.3.3 The Equity of Redemption8.3.5 Rights of Mortgagee8.3.6 Sale8.3.7 Foreclosure8.3.8 Possession8.3.9 Appointment of Receiver8.3.10 to Sue for Money after the Date Fixed For Payment8.4 Discharge of MortgagesUnit 9: The African Concept of Land Ownership9.1 Meaning of Land Tenure9.2.1 Direct Acquisition of Customary Land9.2.2 Transmission and Succession: Inheritance9.3 Colonial Views on the Nature of Interests and Rights under African9.4 Customary Holding or Tenure9.5 Positions of Chiefs under African Customary TenureUNIT 10: COMPULSORY ACQUISITION OF PROPERTY IN ZAMBIA10.1 Introduction10.2 Brief Historical Background to Compulsory Acquisition of Property in Zambia10.3 The 1969 Referendum10.4 Constitutional Basis for Compulsory Acquisition of Property in Zambia10.5 The Land Acquisition Act, 197010.5.1 Salient Provisions of the ActMethod of TeachingLECTURES: 10 HOURS RESIDENTIAL CLASS FOR ONE WEEKASSESSMENT:Student performance assessment shall comprise of:10
a) Continuous Assessment 30%: 2 Written assignment 20% 1 Take home test10%b) Final Examination 70%Required Readings1. Glias, T. O. (1966), African Customary Law, Manchester University Press2. Gray, K.J.,(2005) Elements of Land Law, Oxford, New York3. The Lands Act, CAP.184 of the Laws of the Republic of Zambia, Lusaka,4. The Lands and Deeds Registry Act CAP.185 of the Laws of the Republic of ZambiaRecommended Readings5. Hayton, D. H. (1982), Megary’s Manual of the Law of Real Property, 6th Ed., London6. Land Acquisition Act CAP.185 of the Laws of the Republic of Zambia7. Mvunga, M. P. (1982 ) Land Law and Policy in Zambia, Zambian Paper No. 178. Riddall, J. G. (1988), Land Law, 4th Ed., London, Butterworths9. Zambia Land Alliance(2005) Communities' views on the land policy: draft landpolicy review consultation process in Zambia,Lusaka,Zambia Land Alliance11
UNIT 1Land LawIntroductionThis unit provides the definition of land law and the sources of land law. It alsointroduces the student to concepts of land law.Learning OutcomesAfter completing this Unit, a student should be able to:i.Cite what land is;ii.Demonstrate an understanding of what land law is;iii. Outline the sources of land law in Zambia.Definition of LandFrom the legal point of view, land means not only the ground but also the subsoil and allstructures and objects such as buildings, trees and minerals standing or lying beneath it.This concept of land is often expressed in the Latin maxim ‘quic quid plantatur solo, solocedit,’ which means, (whatever is annexed to the land becomes part of the land). Broadlyspeaking, the law of real property (or Land Law) is essentially concerned with ownershipof land.Broadly speaking, the law of real property (or land law) is essentially concerned withownership of land. Land law may be defined as that branch of law which deals with andregulates man’s rights and duties to land and the interest which may be acquired andliabilities which may accrue to man inter se, in relation to the use of land1. According toDixon, the law of real property is obviously concerned with land, rights in or over landand the processes whereby those rights and interests are created and transferred.2 Riddalhas observed that land law is concerned, first, with various aspects of ownership of landand, secondly, with interests in land, and particularly, with the question whether suchinterests in land are binding on a subsequent holder of the land.31Okon. E “Land Law As An Instrument of Social Change”, ZAMBIA LAW JOURNAL, Volume 17, 1985,p46.2Dixon, M, land law, Cavendish Publishing Limited, London, 1994, P.1.3Riddal, J.G, introduction to land law, 4th Ed, Butterworths, London, 1988, p.3.12
From the various definitions given above, it comes out clearly that one sphere or aspectof land law is concerned with interests in land. These interests are rights in land held bypersons other than the owner. There are various forms of interests or rights in land thatcan be held by persons other than the owner. These interests include leases, mortgages,easements and profits. The law relating to the various forms of interests in land held bypersons other than the owner is discussed in various chapters in this book.With regard to liability, a land owner may be liable in tort if he or she interferes with thelegal rights of others.The term ‘real property’ is derived from the old remedy for dispossession of land.Originally, real property was the term applied to any property that was the subject matterof a real action in the common law courts. This applied only to freehold interests in landand was not available to actions relating to leaseholds. The person wrongfullydispossessed of his land could bring a real action i.e claiming the land; in other words thething (res) itself. On the other hand, a person who was wrongfully dispossessed of hisgoods or chattels could only bring an action for damages against the person of the wrongdoer. The consequence of a personal action, for instance, for dispossession, was that thewrongful dispossessor could either hand back the personal property or pay compensation,whereas with a real action, if a freeholder had been dispossessed wrongly, thenpossession of the property had to be handed back. In consequence, a distinction wasmade between real property (or “realty”), which could be specifically recovered andpersonal property or “personalty” which could not.4It must be pointed out from the outset that even if we have spoken of an owner of land orownership of land, “there is, in fact, no such thing as ‘ownership’ of land in an absolutesense or at any rate.”5 In England, according to the doctrine of tenure, all land is ownedby the crown and a subject can merely hold land either directly or indirectly of the crownon one or other various forms of tenures. The doctrine of tenure is discussed undersection 1.3.1 of this chapter. In Zambia all land is vested in the President who holds it inp
The Lands and Deeds Registry Act CAP.185 of the Laws of the Republic of Zambia Recommended Readings 5. thHayton, D. H. (1982), Megary's Manual of the Law of Real Property, 6 Ed., London 6. Land Acquisition Act CAP.185 of the Laws of the Republic of Zambia 7. Mvunga, M. P. (1982 ) Land Law and Policy in Zambia, Zambian Paper No. 17 8.
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