real property law in uganda-libre (1)

8/12/2019 Real Property Law in Uganda-Libre (1)

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REAL PROPERTY LAW IN UGANDA: Selected Topics, with Cases

Tonny Okwenye

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Latin phrase

cuius est solum, eius est usque ad est usque ad coelom et ad infer os

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Content Torrens System Legal and equitable interests Easements and profits Leases and tenancies Licenses Privity of estate and contract Expropriated properties Mortgages

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TORRENS SYSTEM

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Introduction Originated from Australia System of registration of interests in land

introduced by Sir. Richard Robert Torrens Major purpose was to enable easy land

conveyancing and to save costs spent in investigating titles

Registration of Titles Act (RTA) is the principle law on registered land (S.2 of the RTA).

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Basic elements The Office of titles The Register Indefeasibility of title except for fraud Unregistered interests Caveat

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O fice of registrar of titles Handles land registration,

land registry.

S.3(1) of the RTA provides of a registrar of titles Provides for appointment

also known as the

for the

appointment

of a deputy registrar of titles and other assistant registrars as required

All are public servants

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The register S.37 of the RTA - Registrar to keep a register book which will contain all titles and particulars of land dealings in their priorityBook may be kept in loose leaf or parts relating to district, county, sub county or convenient area.

S.54 of the RTA - An unregistered instrument is incapable of transferring any interest or estate in the landS.59 of the RTA - the certificate is to be conclusive evidence of the title

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the Register Souza V Moorings Hotel Co. Ltd (1960) Facts : The Respondent let premises to the Appellant under a sub lease, however the

instruments weren t registered. Respondent then brought proceedings to recover the outstanding rent.Issue : What is the effect of the unregistered

agreement between the parties.Held : No interest or estate in land can be created or transferred by an unregistered instrument. However, it can be enforced as a contract between the parties.

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Indefeasibility of title except for fraud Fraud is the most important exceptional to

indefeasibility of title. S.77 of the RTA - Certificate void for fraud

against parties to the fraud. S.64(1) of the RTA - the title of a registered

proprietor is paramount except for fraud

the

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other exceptions Other exceptions include: encumbrances notified on the folium, land

included in the folium by mistake, easements and public rights of way and adverse possessions.

Vital for purchasers to thoroughly survey the land before concluding the transaction.

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indefeasibility of title except fraud

Katarikawe V Katwiremu (1977)

Facts: The Plaintiff bought land from the first Defendant, later discovered that the land Had been transferred to the second Defendant after his sale agreement with the

1st Defendant. 2nd Issue : Whether the transfer to the

fraudulent

Defendant was

2nd Held : Defendant guilt of fraud, transfer to his names void. Fraud involves dishonest dealings in land e.g. depriving a purchaser for value in occupation of the land of his unregistered interest.

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Caveats Lodged against one s title to show interest and to prevent further dealings without the caveator s consent.

must be lodged with the registrar of titles.

One must have a caveatable interest. Caveat must clearly identify the interest to be protected

Does not prove title only maintains the status quoMeant to be temporaryCompensation to be paid to the caveatee incase of wrongful lodging

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Caveats Byes V Gathure (1969)

Facts: The Respondent lodged a caveat against the Appellant s title but didn t sufficiently define the interest claimed.

Issue: Whether the caveat was correctly

lodged. Held: The nature of the registrable interest claimed was not disclosed by the caveat and it should have been rejected by the Registrar.

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Unregistered Interests Includes rights existing under any adverse possession, arising out of a long, un interrupted usage of land.Public rights of way over registered land. No need for a registered interest on long uninterrupted user.EasementsGovernment rights over registered land in respect of unpaid rates.Tenants interests on the land. Environmental

considerations under the National Environment Mana ement Authorit

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Questions Discuss the relevance and applicability of the

Torren system of land registration in Uganda today.

How are un registered interests in land protected under the RTA?

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LEGAL AND EQUITABLE INTERESTS IN LAND


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Legal and equitable interests in land Premised on the doctrine of privity of a

contract Every person who acquires land will be bound

by the legal right regardless of whether or not he has notice of the right Creates rights in rem which will be enforced against the whole world


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Equitable rights Not automatically binding on a successor in

title to the affected land They confer rights in personam Bind all persons except a bona fide purchaser

for value without notice and those claiming under such a purchaser

Referred to as equity s darling

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e quitable interest Katarikawe V Katwiremu (1977) Facts: The Plaintiff bought land from the first Defendant and later discovered that the land

had been transferred to the second Defendant.Held : The Plaintiff acquired rights in equity which were good against all persons except a bona fide purchaser of a registered estate for value.Registered interests are known rights in rem and bind the whole world.

Rights in personam arise from contracts for sale before transfer.


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statutory and common law The position under statute Ss.51, 61, 148-153A RTA Art. 278(8),(9)- Constitution Land Act, S.2, 30-39, 40.

(1996)


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common law Common law doctrine of bona fide purchaser Also known as equity s darling A person who proves he is a bonafide

purchaser of value without notice of the equitable interest can take the legal estate free of the equitable interest.

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e quitable interest - Pilcher v Rawlins Pilcher V Rawlins (1872)

Facts: A legal owner of land was subjected to an equitable mortgage, he created a legal

mortgage suppressed the relevant documents which showed that the land had encumbrance. Second Mortgagee was unaware and had no means of discovering the first equitable

mortgage.Issue : Whether the second mortgagee who had a legal estate took subject to the first equitable mortgagee.


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Pilcher v Rawlins Held : It was void against him, his plea of

purchaser for consideration without notice was an absolute plea to the court s jurisdiction.

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Features of the

doctrine Good faith Bonafide Separate test which has to be passed even

after proof of absence of notice. Purchaser must show that his absence of

notice is genuine and honest.


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good faith Midland Bank Trust V Green Facts: The Father granted his tenant son a 10 year option to buy a farm, option unregistered, father conveyed option to the mother, son sought to register the option.Issue : Whether the son s claim would succeed.

Held : Option was void against the mother who was a purchaser for money. The words in goodfaith related to the notice, absence of notice had to be genuine and honest

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Purchaser The case of Midland defines a purchaser as a person who for

valuable consideration takes any interest in land.

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Notice

Refers to knowledge of an existing fact Rationale is to prevent a buyer of a superior

title from setting it against earlier owners of inferior interests which affect the property.

Buyer of the legal estate with notice of prior equitable interests affecting the estate takes subject to prior equitable interests

it


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notice Actual Notice. Buyer has actual/express notice at the time of

the purchase Ss.4 RTA - buyer to hold land subject to the

encumbrances notified to the Registrar

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notice Zimbe V Kamanza (1954) Facts: Appellant and respondent both

purchased the

same

piece

of

land,

the

latter

never registered his title while the former did. Registrar didn t show the Appellant that land belonged to the Respondent who sued.

Held : Appellant was entitled to rely on the registrar s revelation and was not entitled to make any further inquiry.


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Constructive notice

Where the purchaser is aware of a fact which should put him on inquiry as to the existence of a right

/title

in

conflict

with

that

he

is

about

to purchase.

Hes presumed to have either made the inquiry and ascertained the extent of the prior right or

have been guilty of a degree of negligence equally fatal to his claimPrior interest in land should always be considered


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Imputed notice May be imputed to the buyer through actual

notice to his agent Agency law - Notice to the agent is notice to

the principal


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imputed notice Sejjaka V Rebecca Musoke (1985)

Facts: Respondent s husband died leaving behind property which a third party acquired through fraud and sold to the Appellant. Appellant argued that he was a bona fide purchaser of value without notice. Issue : Whether the Respondent had notice. Held : Musoke and Co. Advocates who were acting as her agents were aware of the allegedfraud concerning the disputed property.

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bona fide purchaser Modification of common law doctrine By statute Ss.44, 46,51,56,57,61,76,146,189,184


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bona fide purchaser Lwanga V Registrar of Titles (1980)

Facts: Galiwango bought land but died before registering it. Katemba forged a transfer into his names and sold the land to Ssalongo. Galiwango s heir sought the land. Ssalongo claimed to be a bonafide purchaser for value.

Issue: Whether he was a bonafide purchaser for value.Held: He was a bonafide purchaser for value,his title couldn t be impeached, although it was got through fraud unless he was a privy to the fraud.

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EASEMENTS AND PROFITS

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Easements Is the right to use or restrict

person s land in some way.Examples include: 1. Right of way 2. Right of light 3. Right of water

the use of another

Essentials of an easement 1. Existence of a dominant and servient tenement 2. The easement must accommodate the dominant

tenement3. Ownership of the dominant and servient

tenement by different people

4. Easement

must

be

able

to

form

the

subject

matter of a grant

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easements Re Ellenborough Park (1958) Facts: A developer subdivided land and sold it to different

persons leaving an inner portion known as Ellenborough park to be enjoyed by all as a pleasure ground. The government requisitioned the park and paid yearly compensation, which

the plot owners sought, claiming an easement over the park.

Issue : Whether the right accommodated and served the property in question.

Held : There was a sufficient connection as a garden improves residential property, however the finding was only limited to houses close to the park.

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Dominant and servient tenement Servient tenement serves the dominant

tenement which benefits from the easement. Change in ownership of servient tenement

does not extinguish the easement.Hawkins V Rutter (1892) Facts: The Plaintiff had been in possession of the

system layings worth 100litres in York riven for14 years, the Defendant s barge grounded and destroyed

them.Issue : Whether an easement existed. Held : No dominant or servient tenement

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Easement must accommodate the dominant tenement Must confer a benefit on the dominant

tenement Test is whether the easement makes the

dominant tenement a better and convenient place

Proximity of the property is importantHill V Tupper (1863) Facts: Canal owner leased land on the bank of the

canal to Hill, gave him the sole and exclusive right to place pleasure boats on the canal. Tupper then put rival pleasure boats without

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Ownership by different people Cant have an easement over your own land, it s

a hereditament and not an easement. Rationale is that a man can t have rights

against himself.

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Capable of forming the subject matter of

a grant Grantor and the grantee must exist Right being granted must be definite

Must sale

within

one

of

the

definite

Easements like right to water, light, support.

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Creation of easements By statute Express grant or reservation

Implied grant

or

reservation

Prescription

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Express grant/ Reservations Given in writing, no particular words to be

used. Easements aren t future rights S.61,62,98,99 Reservation is a negative action land owner,

reserves certain rights to access his land. Express reservation must also be in writing

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implied grants Barclays Bank V Patel Facts: Land was subdivided, sold to different

owners. Respondent had no access to any public road, no access road existed on the Appellant s land, respondents use of the Appellant s land was interfered with and he

sued.Issue: Whether an easement of necessity would be implied.Held: A way of necessity arose by operation of law on the

subdivision of the property.

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Prescriptions Acquisition of a right because of long

uninterrupted use or enjoyment of that right. Creates an easement; but can be a defence as

well. Limitation Act Ss. 29,32 Ss 6, 7, 8

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Public rights of way Long uninterrupted use by the public is vital. Ngambo Estate and Saw Mills Ltd V Singh saw Mills (1957) Facts: The Appellant used the road across the respondent s estate, the latter then put a barrier on the road. There was cogent evidence by long uninterrupted use by the public.Issue : Whether a public right of way existed. Held : Public right of way existed due to the long uninterrupted use by the public.

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Profits APrendre Means right of taking . Allow the grantee to take away from the neighbour s land other than using itPerson taking profits has a license to come the landCan exist without ownership of the land

Can be legal and equitable

on

Capable of being enjoyed by several persons at

the same timeExamples: Right to graze, right to mine , right to fish, right to hunt wild animals.

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profits a prendre Duke of Sutherland V Heathcote (1892) Facts: The Plaintiff brought an action to restrain

the Defendantfrom working minerals which had been reserved

to him by an earlier agreement.Held : Aright to work mines was not a license but

rather a profitaprendre

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Extinguishment of easement Release by the owner of the dominant

tenement Abandonment of the easementSwan V Sinclair (1924) Facts: The Plaintiff abandoned the use of

right of way for 38the

years, challenged the Defendant s action of erecting a wall across the road way.Held: Easement had been extinguished by the

year abandonment38

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Questions

1. Differentiate between easement and Profits 2. How are easements created3. Discuss the relevance of easements

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LEASES AND TENANCIES

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Leases and

tenancies Leasehold tenure is one where a party grants to another exclusive possession of land in return for rent.

Freeholder gives another the right to use and occupy his land.

Lessor grants the lease while the lessee enjoys the lease.

Full unencumbered title returns to the lessor upon expiry of the lease.

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Nature of leases

Street v Mountford (1985) Facts : Landlord gave tenant license to occupy a furnished room at a fixed rate with exclusive possession, tenant applied for a fair rent, landlord averred that it was a license and not a tenancy.Issue : Whether the arrangement was a license or a tenancy.Held : Tenancy due to the presence of essential

elements of: exclusive possession, for a fixed period of time subject to payment of rent.

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nature of

leases Harvey v Pratt (1965) Facts : Plaintiff and defendant entered an

agreement for the lease of garage premises for21 years, however, no commencement date was stated, defendant never went into occupation

Issue : Whether the lease agreement was valid. Held : Invalid due to the absence of a

commencement date.

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Essential elements

Exclusive possession For a certain period

Payment of

rent.

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Exclusive

possession S.3(5) of the Land Act. Tenant with exclusive

possession able to exercise land owners rights. Licensee without exclusive possession can t call

the land his own.

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exclusive

possession City Council of Kampala v Mukibi (1967) Facts: Plaintiff leased premises to the defendant on condition that they wouldn t be subleased. Defendant allowed hairdressers to use the premises, plaintiff sought to terminate the lease.Issue : Whether the lease agreement had been breached.Held : No breach, defendant had exclusive possession, had retained the key and would

open and

close

the

premises.

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Certain period

S.3(5) of the Land Act - Refers to commencement and ending dates.Lease is invalid due to uncertainty in duration.Lace v Chantler (1994) Facts : Plaintiffs sublet a house to the defendants for the duration of the second

world war.Issue : Whether the lease was valid. Held : Lease was void for uncertainty of duration as it was impossible to tell when thewar would end.

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Payment of rent

S.3(5)(d) of the Land Act provides for the payment of rent.

Leases enable the land owner to benefit from land he won t use himself.

Rent is the consideration paid in exchange for the tenancy.

Doesn t include the money the tenant will have to spend to repair the property.

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Creation of leases

S. 3(5) of the Land Act, created either by contract or by operation of law.Terms and conditions may be regulated by law to the exclusion of any other contractual agreement.S.54 of the R.T.A, instrument not effectual to

create a lease

until

its

registered.Land becomes subject to the covenants of the

lease upon registration.Ss. 108, 113(1), 114 R.T.A

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creation of a

lease Souza v Moorings Hotel (1969). Facts : Respondent sublet premises to the appellant under a sub sub lease, but the instrument wasn't registered. Respondent sued for rent arrears, appellant denied liability on grounds of non registration.

Issue : Whether

the

instrument

was

valid

Held : Wasn't void though unregistered, could operate as a contract interpartes and give riseto a claim for damages.

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creation of

leases A lease can be legal or equitable Walsh v Lonsdale (1882) Facts : Defendant granted the plaintiff a 7 year lease, the rent to be payable in advance, however the plaintiff paid in arrears forcing the defendant to distress for rent by seizing the

plaintiff s goods. Plaintiff specific performance. Issue : Whether the lease equitable.

Held : It

was

an

equitable

sued for trespass and

was legal or

lease, rent

payable

in

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Duration of leases

S.101 of the R.T.A, provides for a minimum period of 3 years.

Also states the form in which the lease should (8 th be Schedule).

Lease can be for any duration. Must have an ascertainable beginning and

ending before it takes effect.

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Termination of leases Surrender Merger

Effluxion of

Notice Forfeiture

Re-entry

time

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Surrender

S. 108 R.T.A provides for surrender of leases. Occurs when the lessee gives up possession of

the land to the lessor before the lease expires. Upon the lessor s acceptance, the lease merges with the reversion and is terminated.Can be done through the parties express

agreement, a statutory

provision

or

by

operation of law.No time limit within which to register the surrender of the lease.

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Merger It s the opposite of surrender. Lease is terminated when the lessee acquires

the reversion, which then merges with the lease.

This is because the tenant can t be his own landlord.

Merger

has

to

be

entered

into

the

registry

book.

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E fluxion of time

Lease for a fixed term automatically lapses on the expiry of that period.

No need to serve notice unless its expressly stated in the agreement.

Neither side has a right to prematurely end the lease unless the lease confers that right.

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Notice

Parties agree to an original period in a periodic tenancy.

Period ceases when parties serve a notice to quit.

Notice need not take any form subject to the parties agreement.

Must

be

made

to

expire

at

the

end

of

a

complete period of the tenancy. Must be clear and reasonable, no ambiguity.

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.notice Rajan Nanji v Dewjii Facts: Landlord s notice stated that the

tenant s rent would be increased if he didn t vacate the premises by a certain date.

Issue : Whether the notice was effective.

Held : Notice was ineffective to terminate the lease, tenant didn t agree to the terms albeit he was still in possession.

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notice

Rodseth v Shaw (1967). Facts . Plaintiff served a notice to quit on the

defendant who objected on grounds that the notice was signed by the plaintiff s husband and that it didn t expire at the end of the tenancy. Issue: Whether the notice was valid.

Held : Notice was valid though it was signed by the husband, besides it expired at the end of each month.

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Forfeiture Lease contains lessee.Lease contains

covenants which bind the a forfeiture clause which

empowers the landlord to terminate the lease incase of the tenant s breach of covenant. S.102 of the RTA provides for implied covenants of payment of rent, good maintenance ofleased property. S.113 of the RTA provides for covenants to be implied in a sublease.

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forfeiture

Scala House and District Company Ltd v Forbes (1973).

Facts : Tenant broke a covenant against subletting and the landlord gave notice forfeiting the lease. The tenant applied for relief from the forfeiture.

Issue : Whether the breach could be remedied. Held : Breach by unlawful sub-letting is

incapable of being remedied.

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Re-Entry

S.103(b) of the RTA provides for the lessor s right to re-enter and take possession of leased property incase of non payment of rent and breach of covenants.

S.114 of the RTA determination of a lease or sub-lease by re-entry has to be entered in the

register book.

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re-entry Lugogo Coffee Co. v Singo Combined Coffee Growers (1976).

Facts : Lessor leased land to the defendant for 49

years

but

he

defaulted

in

payment

for

20 years, she re-entered the land but the registrar

refused to make an entry. Sold the land to the plaintiff who sued the defendant for trespass.Issue : Whether the lease was terminated.

Held : The lessors lawful re- entry had determined the lease, albeit the law hadn t yet recognized it.


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Remedy

Kiwanuka Musisi v Seggane (1973) Facts: Applicant in breach of certain covenants, respondent re-entered theproperty, registered the re-entry and leased the land to a third party all to the applicant s knowledge. He applied for a cancellation of the

re-entry 6

months

later.

Issue : Whether the cancellation order would be granted. Held : Order would be refused due to the injustice which would be caused to the third party.

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Waiver of forfeiture

Landlord loses his right to forfeit the lease when he waives the breach of covenant complained of.

Waiver may be express or implied. Implied when the landlord is aware of the

breach but nevertheless acknowledges the

continuance of the lease. For example, a demand or acceptance of rent

even after notice of the breach.

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waiver Blackstone Ltd v Burnetts (1973)

Facts . Plaintiff granted the defendant a lease with a qualified condition against subletting.

Defendant got the plaintiff s permission to sublet to 2 people but instead sublet to a different person. Plaintiff's clerk sent a demand note for

rent despite

the

breach.Issue : Whether the breach of covenant had

been waived.Held: Rent demand had waived the breach of

covenant against subletting.

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Terms in leases Implied covenants at common law A covenant is a term of a lease agreement. Covenants implied against the landlord. Quiet enjoyment Means that the landlord mustn t interfere with

the tenant s possession. Landlord not liable where the breach of quiet

enjoyment is due to a third party s fault.

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quiet enjoyment Opinya v Mukasa (1964) Facts: Landlord forcefully evicted the tenant by

uprooting the roof from his premises. Issue : Whether the covenant of quiet

enjoyment had been breached. Held : Landlord was liable for

awarded punitive damages.the breach, court

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Non-derogation from the grant Means that the landlord shouldn t frustrate the use of land for the purposes for which it waslet. Telex (Pty) Ltd v Thomas Cook and Sons (1970) Facts :

Plaintiffs

leased

their

premises

to

the

defendants who used highly sensitive equipment. They installed a cooling system which interfered with the defendant s

equipment forcing them to vacate and terminate the lease.Issue : Whether the landlord had derogated from the grant.

Held: The interference was substantial, and

defendants were entitled to terminate the

the

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Premises fit for human

habitation Means that the premises must be habitable. Or fit for the purpose. If residential, then the

facilities must favour residential use. Where the premises are for commercial

purpose, they should be fit for carrying out business.


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LICENSES


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bare license Wood V Leadbitter Facts: The Plaintiff bought a ticket to watch

races but was forcefully rejected by the

Defendant without his guinea being returned to him.

Held: Although he was a bare licensee, the license could still be revoked.


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license coupled with interest James Jones and Sons Limited V Earl of

Tankerville (1909) Facts: Land owner contracted to sell the

timber growing on his land to the third party. Issue : Whether the license had been granted. Held: The land owner had conferred a license on the purchaser to enter his land and take timber.


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License for value Hurst V Picture Threatre Ltd (1915) Facts: The Plaintiff paid for a seat in the cinema

but was forcefully ejected by the Defendant on

grounds of non payments, sued for assault and false imprisonment. Held : Plaintiff had the license to enter the

defendant s premises to watch the spectacle was wrongfully ejected.

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License by estoppel

Estoppels arises when one person A acts in expectation that he has rights over another s land (B)

If he relies on that expectation to hisdetriment, A is estopped from denying him the right.


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e stoppel Inwards V Baker (1965) Facts: The Defendant s father let him build a

house on his land, this became the Defendant s permanent home, however it was left to the Plaintiff upon the father s death. Plaintiff brought proceedings to recover the bungalow.

Issue: Whether

he

could

recover.

Held: Plaintiff was estopped as the Defendant had a license in his favour.


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Contractual tenancies Errington

V

Errington

(1952)

Facts: Father got a loan

his son and daughter in installments so as to be sought possession from father s death.

and bought a house for law who had to pay the in possession, widow the daughter upon the

Issue : Whether her action could succeed. Held : Widow not entitled to an order as the husband and daughter in law were licensees with a contractual right to remain in possession subject to payment of the installments


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Deserted wife s matrimonial home Deserted wife s right to stay in the matrimonial

home arises from an irrevocable personal license the husband is presumed to have

conferred on her. Same as a contractual licensee, has a valid

interest. Can only be revoked by a court order


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Questions Distinguish between a lease and a license What are the different types of licenses Distinguish between equitable and legal rights vitalDetermine the extent to which a right/interest is enforceable

1. 2.

3.

4.

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PRIVITY OF ESTATE AND

CONTRACT

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Privity of estate and contract Landowners are free to enter contractual

relationships in regard to their properties. A covenant is a promise under seal and is

enforceable under the ordinary laws of contract.

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Privity of contract Exists when the parties are in direct contractual

relations. Contractual liability is enforceable by or against

the estate of the dead party. The benefit but not the burden of the contract

is assignable. Can be enforced at law by an action for

damages or

equity

by

specific

performance

an injunction.

or

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Privity of estate

Exists when there is tenure between the parties, i.e., a landlord tenant relationship.

Mainly confined to leases and tenancies. Covenants which don't touch or concern land are unenforceable. No covenants are enforceable if there is neither

privity of estate or contract. 2 exceptions exist. 1. Equity allows for the transmission of both the

benefit and burden of restrictive covenants. 2. Common law allowed the assignment of a

covenant for

the

benefit

for

which

it

was


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privity of estate and contract The burden 1. Contract law rule that only a party to a

contract can be sued upon it.2. Privity of estate is an exception and the

assignees of either the lease or the reversion can be sued.

The benefit 1. common law allows for the transmission of

contractual benefits, e.g. the assignment of debts.

2. Benefit of a covenant relating to land can

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Requirements for the burden to

pass The covenant must touch or concern the land. Successor in title must have a legal estate in

the land.Land to be benefited must be reasonably identifiable from the covenant land.Parties must intend that the covenant benefit runs with the land.Covenantee must own the land to be benefited by the covenant but its immaterial for the

covenantor to own the land.


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restrictive covenants - Negative in nature Only a negative covenant will be enforced by

equity. Must be negative regardless of whether the

document is positive or negatively worded. Examples include covenants against building on

land, carrying on a particular trade or business.

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restrictive covenant Tulk v Moxhay (1848) Facts : Land was sold to Elms in a conveyance in which he covenanted to maintain it uncovered

by buildings and in a neat and ornamental order. Elms sold to the defendant whointended to build, was aware of the covenant albeit it was absent in the conveyance.Issue: Whether the defendant could use the land in a manner contrary to the covenant. Held : An injunction was granted against the

defendant to

restrain

a breach

of

the

covenant.

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Restrictive covenants burden on the servient

land A covenant is intended to burden the servient land

For a covenant made by the covenantor for himself, his heirs and assigns, the burden will run with the land.

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restrictive covenants protection of the dominant

land Vital that 2 plots of land exist as with easements.

Proximity of the plots is crucial. Covenantee loses the right t enforce the covenant when it becomes reasonably impossible to regard the covenant as benefiting the land.

Exceptions to

the

requirement

of

the

covenantee

holding adjacent land include lease and mortgages, statutory exceptions and remedies in tort and contract.


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Building schemes Also known as schemes of development. Have peculiar characteristics due to the

principle that benefits of covenants in equity run according to the intention and interest the original parties.

Restrictions placed on purchasers of plots

of

when land is bought according to plan. For example, covenants restricting trade or erection of cheap buildings.

the

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building schemes conditions for validity The plaintiffs and defendants must derive their

title from a common vendor. The vendor laid out his estate for sale in lots

subject to restrictions to be imposed. The vendor intended the restrictions to benefit

all the lots to be sold. Plaintiffs and defendants purchased their plots

from a common vendor.

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building schemes Elliston v Reacher (1908) Facts : Building scheme created in 1861, plots sold from an office in Ipswich, scheme covered

10 acres at Felixstowe. Office had a large wall plan with dominant restrictive covenants which were intended to preserve the area s exclusive nature.Issue: Whether the plaintiffs could enforce the covenants.

Held: Natural inference from the advertising that the scheme creator intended them to be mutually enforceable.

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Questions Distinguish between privity of estate and

privity of contract? Discuss the law relating to restrictive

covenants? What are the essentials of building schemes?

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EXPROPRIATED PROPERTIES

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Expropriated properties -

Introduction Asians came to Uganda as casual laborers during the construction of the Uganda railway. Stayed behind after completion of construction

and dominated the economy while Africans were involved in peasant farming, laborers in mines and plantations.Africans complained, colonial government

made reforms like the formation of the Lint Marketing Board , Uganda Development Corporation. President Idi Amin ordered for the expulsion of

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expropriated properties - Constitution The right to property is guaranteed under

Article 26, 1995 Constitution. Article 13, 1967 constitution provided for

right to property as well.

the Exceptions to the right are compulsory

acquisition by the state subject to adequate compensation.

Acquisition must be made in public interest, health, safety and morality.

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Expropriation -

meaning Refers to the state s action in enforcing compulsory surrender of private property without compensation.

Different from compulsory acquisition which entails compensation.

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How the expropriation was

done Cancellation of entry permits Declaration of assets Appointment of agents Vesting of properties Management of expropriated Compensation

property

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expropriated properties cancellation of entry

permits The Immigration (Cancellation of Entry Permits and Certificates of Residence) Decree No. 17 of 1972 provided that all persons of Asian origin who

were

citizens

of

India,

U.K,

Pakistan, Bangladesh had their permits withdrawn and

were given 90 days to leave. The Immigration (Cancellation Of Entry Permits

and Certificates Of Residence) (Amendment ) Decree no. 30 of 1972, amended the above decree and extended the cancellation of permits to all persons of Asian origin regardless

of their citizenship.

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expropriated properties declaration of

assets They had to declare their assets and liabilities and any other particulars about their businesses.

Declaration forms to be submitted to the minister with title deeds, debentures, contracts and loan agreements.

Minister

would

then

list

these

in

the

register

of

declared properties and businesses.

Expropriated properties Appointment of

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Expropriated properties - Appointment of agents Agents were appointed for the sale of property

to Ugandan citizens. Had to ensure the safety and protection of

property until it was sold to a Ugandan. The approval of the Abandoned Property

Custodian Board which was formed under decree no 29 of 1972 was necessary.

Decree provided for all unsold property to in the Ugandan government and then be transferred to the departed Asians panel.

the

vest

expropriated properties Vesting of

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expropriated properties - Vesting of properties These were vested in the government and the

board. Included properties which the Asians never

declared. Those whose management wasn t arranged

by the Asians.

Those appropriated by the Properties and

for

Business (Acquisition) Decree. No. 32 of 1972

Expropriated properties - Management of 134


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expropriated property

Consolidated in the Assets Of Departed Asians Decree 1973. All assets and liabilities vested in the

government were transferred to the Departed Asians Property Custodian Board, established under S.5 of the decree.Board was a body corporate, had to manage all

properties, pay all debts and discharge all mortgages.Had to collect all debts and monies due to the departed Asians.

expropriated properties

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expropriated properties - Compensation

Uganda was under immense international pressure from countries like Britain. Made compensation a condition for the grant

of donor funds.Led to the enactment of Decree No. 12 of 1975 which amended Decree No. 27 of 1973.It provided procedures for the assessment, determination and payment of compensation to all departed land owners.

Also allowed for the belated declaration for Asians who hadn t declared their properties.

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Expropriated properties reversing the expropriation

The Obote government was forced to return the properties due to continued pressure from Britain.

Africans were unhappy due to the loss of lucrative business opportunities.

Led to the enactment of the ExpropriatedProperties Act (E.P.A)

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EPA Purpose of the Act The EPA was a remedial statute which had to

be given a broad interpretation so as to address the mischief of expropriation.

Its long title stated that it was to provide for the transfer of businesses and properties expropriated during the military regime to the Ministry of finance and for their return to the former owners.

Properties to which the act

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Properties to which the act applied

Properties to remain vested in the government and to be managed by the Minister of Finance.Properties vested in the government and

transferred to the Departed Asians Property Custodian Board (DAPCB) under the Assets of Departed Asians Decree , 1973.Property acquired by government under the properties and business (Acquisition Decree.) Property in any other way taken over by themilitary regime other than those to which the repealed National Trust Decree applied.

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expropriated properties ministers

powers Was empowered to return the properties to the former owners (re-possession).The application had to be made within 90 days

of the commencement of the Act.The minister would then issue a certificate of re-possession if satisfied with the application. This was sufficient authority for the transfer bythe registrar of titles.

However, the deadline was later extended to 13 th May 1993.

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expropriated properties joint

ventures Joint ventures were entered into when the government was interested in property which former owner sought to re-possess.

If the parties came to an agreement, the minister would then issue a certificate transferring the property.

They

were

entered

into

in

respect

of

facilities

like schools, hospitals.

a

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expropriated properties - sale This was only possible where:1. The former owner failed to apply for re-

possession within the prescribed time.

2. The minister was dissatisfied with the merits of the application.3. Failure of the joint venture effort.4. The owner s failure to return and settle in

Uganda within 120 days after issuance of the certificate of re-possession.

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expropriated properties -

Appeals Appeals from the minister s decisions An aggrieved party had the right t apply to the high court within 30 days from the date on

which the decision was communicated to him.Tenants were entitled to occupy the premises until the minister dealt with them.Mortgages, liens and other third party claims created by former owners before expropriation were to be dealt with in the normal way.Leases which expired in the interim period

were to be revived.


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Questions

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Questions

The Expropriated Properties Act is a total contradiction of the legal principles relating land under the laws of Uganda. Discuss.

Discuss the law relating to expropriated properties in Uganda?

to

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MORTGAGES

I d i

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Introduction Are governed by the Mortgage Act. A mortgage is one of the forms of security one can use to secure his indebtedness.

Other forms include liens, pledges, guarantees. Could be in form of land or chattels, land is the best form of security as its immovable, doesn tperish although its character may change. The debtor is called the mortgagor while the creditor is the mortgagee.In case the debtor defaults in payment, the

creditor can

sell

the

land

to

discharge

the

debt.

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m ortgages -

definitions S.2 Mortgage Act In Santley Vs White, Lindley MR, defined a

mortgage as a conveyence of a legal or equitable interest in property with a provision for redemption

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m ortgages -

definitions Mutambulire Vs Yozefu Kimera (1975) Facts: Appellant lent money to the Respondent who offered his house and kibanja as security.

Respondent failed to pay, Appellant took possession, Respondent brought proceedingsto recover his property. Issue : Whether the arrangement was a mortgage or a contract of sale.Held : Transaction was a mortgage governed by the law relating to mortgages. Respondent

would redeem

his

land

on

the

due

date

offer

C id ti f th M t

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Consideration for the Mortgage Mortgagor/ Mortgagees relationship is

contractual, usual essentials of a valid contract must exist.

Consideration is a debt, whether present, future or contingent.S.115 RTA provides for mortgages

Ss.5,6,7,10 Mortgage Act

id ti

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considerations Pregji Vs Lubega Nasanil (1964) Facts: The Plaintiff lent money to the

Defendant. The Defendant defaulted in

payment, property was put up for sale by public auction but there was no buyer, The Plaintiff claimed the balance.

Held: Parole evidence was admissible to show that the money was advanced.

C ti f

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Creation of

Mortgages Searches and Inquiries - S.210 RTA provides for searches i.einspection of the Register book Ss. 145,184 (c)

,189; Land

Act

S.32(1),

5-6,34,

35(1) Legal Mortgages

Created by executing a mortgage deed in the prescribed form.S.3 M.A- A person holding land under any tenure may mortgage his/her instrument Mortgage to be effective after registration

However, its

still

enforcement

interpartes

even

Creation of

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Creation of

Mortgages De Souka V Kassamal, Nanji (1963) Facts: The Appellant mortgaged his land to the Respondent , Mortgage deed signed by the

Appellant but not the Respondent, Appellant sued for declaration that the deed was void.Issue : Whether absence of the mortgagee s

signature is

a matter

of

substance.

Held : Law doesn't require the mortgagee s signature so as to make the instrument effective and neither does it require both

Creation of Mortgages

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Creation of Mortgages Equitable Mortgages Created with depositing a mortgage deed Mortgagor deposits a certificate of title with

the mortgagee with the intention to create a security Equitable mortgage notified to the public

through the lodging of a caveat on the land RTA S. 138


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The equity of

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The equity of redemption

17 th Equity intervened since the Century to stop the exploitation of the mortgagor by the mortgagee.Allows redemption although the legal date of redemption has passed.Redemption is the process by which the property is freed from the mortgage following

the discharge of the loan or obligation secured against the property.Unregistered land, receipt is annexed to the mortgage deed while an application is made to the land registry in the case of registered land.

the equity of redemption

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the equity of redemption Kreglinger V New Petagonia Meat and Cold Storage (1914)

Facts: The Appellant agreed to lend the

Respondents the

money,

security

was

a floating

charger on their property. The Respondent agreed not to sell goods to any other person except the Appellant.Issue : Whether there was a clog on the equity of redemption.Held: Agreement with the reference to goods was a collateral agreement which was


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The Right to redeem must not be

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excluded Lewis V Franklove (Supra) The right to redeem was excluded by the

option to purchase in the Defendant s favour

thus there was a clog on the equity of redemption.

The right to redeem may be

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The right to redeem may bepostponed

Esso Petroleum Co. V Harper s Garage (1966) Facts: A mortgage petroleum filling station

included a term postponing redemption for 21

years and

another

term

requiring

the

mortgagor to buy the mortgagee s petrol.

Issue : Whether the postponement was valid. Held : It was valid.

Collateral advantage

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Collateral advantage Mortgage will seek more than loan security Folus agreements in the case of breweries,

garages which tie the mortgager to buying his

product Such a clause will be struck out if its unfair or

unreasonable, or is a clog on the equity of redemption

The test is one of unconscionability.

collateral advantage

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collateral advantage Biggs V Hoddinott (1898) Facts: A covenant contained in a mortgage of a

hotel to a brewer provided that during the

continuation of the mortgage, which was irredeemable for 5 years, the mortgagors would only sell the mortgagee s beer.

Issue : Whether it was unconscionable bargain. Held : No rule that a mortgage cant stipulate for

collateral was enforceable by the Mortgagee.

Enforcement of the equity of redemption

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Enforcement of the equity of redemption Enforcement of the equity of redemption is

provided for under:1. Ss. 134, 135,148 RTA

2. Ss.11(1), 11(3), 11(4)(a),12 M.A

Rights of a

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Rights of amortgagee

Suit Appointment of a receiver Taking possession of mortgaged property

Suit by the M

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Mortgagee S.3(9) M.A may bring a summary suit, seeking

for the sum due, interest, costs, an order to sell the land.

The mortgage deed usually has a provision allowing enforcement without resort to court. Govindj Popatla Vs Visandji (1962)

Appointment of a i

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receiver Receiver appointed to take charge of the mortgaged propertyTo cause it to settle the mortgagee s claims

against the mortgagor. S.22 M.A - Mortgagee s power to appoint receiver implied in every mortgage15 working days notice to mortgagor, must be in writingS.22(9) provides for priority of receivership

Taking possession of the mortgaged


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property S.24 M.A

Mortgagor to be given 5 working days notice Could be directed physical possession or

indirect by asserting the right of management over land

termination of


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termination of interest

Kehar Singh V Bhatt (1962) Facts: Appellants took out originating summons for an order of possession of

property mortgaged to them by the Respondent. Sold the property by auction without court s authority before the summons were issued.Issue : Whether the sale terminated the mortgagee s interest in the property.Held : Sale had terminated their interests in the

property, had

no

right

to

possession.


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Foreclosure and l


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sale Foreclosure is the judicial process through which the equity of redemption is finally extinguished. Remedy of last resort - S.26 M.ANotice of 21 working days, sale by public auctionAdvertisement, coloured picture of mortgaged

propertyMortgagee can t sell property to himself except with court s permission. RTA S.184

Sale otherwise than by


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foreclosure RTA Ss.115,116,210 A Uganda Credit and Savings Bank V Senkuba (1966) Facts: The Respondent mortgaged land to the

bank to

secure

a loan,

defaulted

on

payment, Bank sent him the statutory notice which

never reached him, Land was sold at a public auction. Respondent sued for the unlawful

sale.Issue : Whether the sale was unlawful. Held ; Sale unlawful, no notice was served on the Respondent

Priority of mortgages


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y g g

The first in time takes priority for equitable mortgages

Two mortgages, first to be registered created takes priority

but not

Legal mortgages take precedence over equitable mortgagesRTA Ss.114, 115,61

Questions 172


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1. Discuss the law relating to mortgages 2. What is the relevance of mortgages to

Uganda s land law 3. Discuss the rights of the mortgagee

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END

real property law in uganda-libre (1)

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