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REAL PROPERTY LAW IN UGANDA:

Selected Topics, with Cases

Tonny Okwenye

Latin phrase

cuius est solum, eius est usque ad est usque ad coelom et ad inferos

Content
Torrens System
Legal and equitable interests Easements and profits

Leases and tenancies

Licenses Privity of estate and contract

Expropriated properties
Mortgages

TORRENS SYSTEM

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).

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

Unregistered interests
Caveat

O fice of registrar of titles Handles land registration, also known as the land registry. S.3(1) of the RTA provides for the appointment of a registrar of titles Provides for appointment of a deputy registrar of titles and other assistant registrars as required All are public servants

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 priority Book may be kept in loose leaf or parts relating to district, county, sub county or convenient area.of the RTA - An unregistered instrument is S.54 incapable of transferring any interest or estate in the land S.59 of the RTA - the certificate is to be conclusive evidence of the title

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

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

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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 st Defendant. 1 the second Defendant after his sale agreement with the
Issue: Whether the transfer to the 2nd Defendant was

fraudulent Held: 2nd 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 ones 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 quo Meant to be temporary Compensation to be paid to the caveatee incase of wrongful lodging

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caveats
David Acar v Alfred Acar Facts: Respondent applied for a lease of his

land, appellants claimed an interest in the land and complained to the parish chief. Certificate granted to the respondents, appellants refused to vacate the land. Appellants should have lodged a caveat Held: with the registrar of titles instead of complaining to the parish chief. Respondent's title was conclusive evidence of ownership.

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Caveats Byes V Gathure (1969)

Facts: The Respondent lodged a caveat against

the Appellant s title but didnt 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 Easements Government rights over registered land in respect of unpaid rates. Tenants interests on the land. Environmental considerations under the National Environment Management Authority

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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?

LEGAL AND EQUITABLE INTERESTS IN LAND

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 has notice right he Creates rights of in the 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

equitable 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 .

statutory and common law

The position under statute Ss.51, 61, 148-153A RTA Art. 278(8),(9)- Constitution (1996) Land Act, S.2, 30-39, 40.

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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.

equitable 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.

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

Value

Includes any consideration in money, money's worth and marriage consideration Adequacy of consideration not material. Midland Bank (Supra) Value is an expression denoting an advantage conferred or detriment suffered.

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

valuable consideration takes any interest in land.

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 it equitable interests affecting the estate takes subject to prior equitable interests

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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

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 didnt 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.

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 claim Prior interest in land should always be considered

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 alleged fraud concerning the disputed property.

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. Galiwangos 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 couldnt be impeached, although it was got through fraud unless he was a privy to the fraud.

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Questions
1. Distinguish between legal and equitable

rights. 2. Discuss the concept of equity s darling.

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EASEMENTS AND PROFITS

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Easements
Is the right to use or restrict the use of another

persons land in some way. Examples include: 1. Right of way 2. Right of light Essentials an easement Right ofof water 3. 1. Existence of a dominant and servient tenement 2. The easement must accommodate the dominant tenement 3. 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 for 14 years, the Defendant s barge grounded and destroyed them. Held: No dominant or servient tenement Issue: Whether an easement existed.

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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 important Hill 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 cant have rights against himself.

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Capable of forming the subject matter a grant of 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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By statute
S.59 of the Electricity Act, Cap. 144 -

Recognizes an easement in favour of electricity lines S.60, 64, 65 of the RTA - When the certificate contains a statement that the person named is entitled to an easement in the title, that statement is conclusive evidence of that statement. S.72 National Environment Act Cap 153 - deals with environmental easements, for purposes of environmental conservation and enhancement.

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Express grant/ Reservations

Given in writing, no particular words to be

used. Easements arent 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
These are implied by law

Borman vs Griffith (1930) Facts: Lessor demised a dwelling house and premises to the lessee for purposes of a rabbit and poultry farm, however no right of way was removed to him. The Plaintiff used the drive to access his premises leading to conflict. Issue Whether a right of waybe could be implied. Held:: The right of way would implied for the reasonable enjoyment of the property. easements of necessity are also implied when the plot is landlocked

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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 Held: A way of necessity arose by operation of be lawimplied. 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 it Person taking profits has a license to come on the land Can exist without ownership of the land Can be legal and equitable Capable of being enjoyed by several persons at the same time Examples: 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 Defendant from working minerals which had been reserved to him by an earlier agreement. Held: Aright to work mines was not a license but rather a profit aprendre

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Extinguishment of easement
Release by the owner of the dominant

tenement Abandonment of the easement Swan V Sinclair (1924) Facts: The Plaintiff abandoned the use of the right of way for 38 years, challenged the Defendant s action of erecting a wall across the road way. Held: Easement had been extinguished by the 38 year abandonment

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Questions
1. Differentiate between easement and Profits 2. How are easements created
3. 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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Classification
Fixed leases, fixed duration lease comes to an

end upon expiry of the period. Periodic leases renewed continuously from term to term. Terminated by notice served by the other party.

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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 for 21 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 cant 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 wouldnt 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 the war 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 wont use himself. Rent is the consideration paid in exchange for the tenancy. Doesnt 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 rise to 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 sued for trespass and specific performance. Issue: Whether the lease was legal or equitable. Held: It was an equitable 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 be (8th 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 time

Notice
Forfeiture Re-entry

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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 cant 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: Landlords notice stated that the

tenant s rent would be increased if he didnt vacate the premises by a certain date.
Issue: Whether the notice was effective.

Held: Notice was ineffective to terminate the

lease, tenant didnt 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 didnt 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 covenants which bind the

lessee. a forfeiture clause which Lease contains 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 of leased 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 hadnt yet recognized it.

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re- entry
Charles Kassajja Stokes v Registrar of Titles

(1992) Facts: Applicant s lessees defaulted in rent for 20 years and didnt keep the premises in a tenantable condition, he served termination and re-entry notices in newspapers and by display on the premises. Defendant refused to make the entry hence the suit. Issue: Whether the notices amounted to reentry. Held: There was no re-entry within S.103, 114 RTA. Re- entry cant exist without undisturbed occupation.

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Remedy
Kiwanuka Musisi v Seggane (1973) Facts: Applicant in breach of certain

covenants, respondent re-entered the property, 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 : Whether the cancellation order would Issue re-entry 6 months later . 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 mustnt 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 the breach, court awarded punitive damages.

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Non-derogation from the grant Means that the landlord shouldnt frustrate the use of land for the purposes for which it was let. 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. Whether the landlord had derogated Issue Held:: The interference was substantial, and the from the grant. defendants were entitled to terminate 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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Covenants implied against the tenant

Prompt payment of rent, rates and taxes except

those for which the landlord is responsible. Delivery of vacant possession upon expiry of the lease. Use of premises in a tenant like manner (good maintenance).

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Covenants implied at law

Ss. 102, 103, 104, 105, 112(1), 113 R.T.A
S.3(5) of the Land Act.

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Questions
What are the essential features of a lease?
How is a lease terminated? Discuss the covenants implied in lease

agreements? An equitable lease is as good as a legal lease. Discuss.

LICENSES

Introduction
Position is that every invasion of land, however

minute is trespass A license is a purely personal permission given by the a land owner/occupier to a person to do something which would otherwise be a trespass Different from a lease or an easement Passes no interest, does not transfer any property. Doesnt bind a purchaser who can require the licensee to leave

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Types of licenses
Bare licenses Licenses coupled with an interest License for value Licenses by estoppels

Bare licenses
Licenses provides consideration in return for

his entitlement to be present on the land License not a trespasser unless he exceeds the geographical limits of the permission granted Licensee becomes a trespasser if he pursues an unauthorized purpose; Revocation at will without notice May be granted either expressly or implied Implied for police officers to knock on the door

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bare license
Lambert V Robert Facts: Defendant exceeded the speed limit,

policeman followed him and asked for a breath test while in his drive way. Police informed that he was on the private property. Issue: Whether the policeman was a trespasser . Held: The Defendant revoked the policemans implied license to enter the property thus making him a trespasser.

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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Licenses coupled with an interest

May be granted with a grant of an interest Occurs when the land owner grants a person

an interest or right which can only be enjoyed by entry upon the land Is known as a profit aprendre e.g the right to hunt, fish.

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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 .

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 his detriment, A is estopped from denying him the right.

estoppel
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 .

Contractual tenancies Errington V Errington (1952) Facts: Father got a loan and bought a house for his son and daughter in law who had to pay the installments so as to be in possession, widow sought possession from the daughter upon the father s death. 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

Deserted wifes matrimonial home

Deserted wifes 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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Personal license
Bendall V Mcwhirter (1952) Facts: Defendant s husband deserted her, he

was later adjudged bankrupt - The Plaintiff as the trustee in bankruptcy sought possession of the matrimonial home. Issue: Whether the Plaintiff could possess the house. Held: She had a right to stay due to the irrevocable personal license her husband gave her .

Questions

Distinguish between a lease and a license 2. What are the different types of licenses 3. Distinguish between equitable and legal rights vital
1.
4.

Determine the extent to which a right/interest is enforceable

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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. or Can be enforced at by law by an action for damages or equity specific performance an injunction.

111

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 Stuart and ors v Joy (1904) Facts: Defendants leased an oil mill to the defendants who then assigned their reversion. Covenant that the defendant would execute all repairs but he declined. Held: A lessor who has assigned his reversion remains liable upon his express covenants running with the reversion in a lease for the years under seal.

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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, made for the benefit of the

covenantees land. They are a creation of equity. Essentials of restrictive covenants 1. The covenant must be negative in substance.
2. Must be made with an intention to burden

the servient land. 3. Must be made to protect the dominant land retained by the covenantee.

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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 who intended 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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restrictive covenants London County Council v Allen (1914) Facts: Plaintiff sold land to the defendant who covenanted not to build on a small piece of the land of the land, plaintiff had no other land in the vicinity, plaintiff sold the land to his wife who commenced building. The plaintiff sought an injunction. Issue: Whether the injunction would be granted. Held: Injunction was refused as the plaintiff had no dominant land to be protected by the

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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 of the original parties. Restrictions placed on purchasers of plots when land is bought according to plan. For example, covenants restricting trade or the erection of cheap buildings.

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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 areas exclusive nature. Issue: Whether the plaintiffs could enforce the Held: Natural inference from the advertising covenants. 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 the right to property as well. 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 states 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 of properties Vesting Management of expropriated property Compensation

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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.

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

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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 wasnt arranged for by the Asians. Those appropriated by the Properties and Business (Acquisition) Decree. No. 32 of 1972

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Expropriated properties - Management of 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.

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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 hadnt 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 Expropriated Properties 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.

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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 the military 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 by registrar titles. was later extended to However, theof deadline the 13th May 1993.

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expropriated properties joint ventures Joint ventures were entered into when the government was interested in property which a 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.

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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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Re: An Award filed by the Collector (1959) Facts: The Ugandan government declared that

it required land for a public purpose, took possession of mailo land. The collector made an award to both the government and the mailo owner who objected on grounds that the railway tracks were fixtures which belonged to him. Issue : Whether the compensation should be appropriated. Held: the collector was right in appropriating the compensation as a railway line on mailo land didnt belong to the mailo owner and

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Questions
The Expropriated Properties Act is a total

contradiction of the legal principles relating to land under the laws of Uganda. Discuss. Discuss the law relating to expropriated properties in Uganda?

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MORTGAGES

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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, doesnt perish 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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mortgages 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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mortgages 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 proceedings to 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

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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

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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.

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Creation of Mortgages Searches and Inquiries - S.210 RTA provides for searches i.e inspection 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

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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 mortgagees signature is a matter of substance. Held: Law doesn't require the mortgagees signature so as to make the instrument effective and neither does it require both

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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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equitable mortgages Barclays Bank & C.O V Gulu Millers Ltd (1998) Facts: The Respondent deposited documents of title with the bank with the intention of creating an equitable mortgage, agreed to create a legal mortgage as well. Defaulted on payment. Bank sought to sell the land. Issue: Whether court has power to order a sale or a foreclosure. Held: Court had the power to order a sale or a foreclosure where an equitable mortgage existed along side an agreement to create a

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The equity of redemption Equity intervened since the 17th 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.

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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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No clog on the equity of redemption Any provision which fetters the equity of redemption is void Lewis V Frank Love Ltd (1961) Facts: The Plaintiff already indebted to the mortgagees, Defendant agreed to lend him more money on a condition that they had opted to purchase part of the property comprised in the mortgage, purported to exercise this option without advancing the money. Issue: Whether there was a clog on the equity of redemption. Held: Defendant s option to purchase a clog on

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The Right to redeem must not be 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.

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The right to redeem may be postponed 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 mortgagees petrol. Issue: Whether the postponement was valid. Held: It was valid.

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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.

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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 mortgagees beer . Issue: Whether it was unconscionable bargain. Held: No rule that a mortgage cant stipulate for collateral was enforceable by the Mortgagee.

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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

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Rights of a mortgagee Suit Appointment of a receiver Taking possession of mortgaged property

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Suit by the 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)

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Appointment of a receiver

Receiver appointed to take charge of the mortgaged property To cause it to settle the mortgagees claims against the mortgagor . S.22 M.A Mortgagees power to appoint receiver implied in every mortgage 15 working days notice to mortgagor, must be in writing S.22(9) provides for priority of receivership

Taking possession of the mortgaged 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 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 mortgagees interest in the property. Held: Sale had terminated their interests in the property, had no right to possession.

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Receiver
Downsview Ltd V First City Corporation (1993) Facts: The Mortgagor brought a suit against the

mortgagee and the receiver claiming that the receiver was reckless, fraudulent and in breach of his duties. Held: Mortgagee must appoint his receivers in good faith but he owes the mortgagor no duty to carefully select the receiver .

Foreclosure and sale Foreclosure is the judicial process through which the equity of redemption is finally extinguished. Remedy of last resort - S.26 M.A Notice of 21 working days, sale by public auction Advertisement, coloured picture of mortgaged property Mortgagee cant sell property to himself except with court s permission. RTA S.184

Sale otherwise than by 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
The first in time takes priority for equitable

mortgages Two mortgages, first to be registered but not created takes priority Legal mortgages take precedence over equitable mortgages RTA Ss.114, 115,61

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

Ugandas land law 3. Discuss the rights of the mortgagee

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END