LEGAL PLATFORM : Land law in light of modern right of asset occupancy

Tanzania has recently witnessed gigantic changes in the nature or form of ownership of land with the enactment of the Unit Titles Act, 2008 together with its Regulations, i.e. Unit Titles Regulations, 2009. Now we have unit titles.

Generally, Unit title owners own a defined part of a building, such as an apartment, and share ownership in common areas such as lifts, or driveways. So far a lot have been written about this property occupancy system in Tanzania and I need not reiterate everything here.

The main focus of this article is to point out some of legal issues which have been brought by this new system of title registration while making reference to the Land Registration Act chapter 334 of the Laws of Tanzania. At the end, the writer will ask the relevant authority to make the necessary amendments so as to bring coherence and harmony in land title registration in Tanzania.

The Land Registration Act is the general law that regulates registration of interests in land in Mainland Tanzania. This law goes hand in hand with the Rules made under the same namely, the Land Registration Rules, G.N No. 245 of 1997.

Title registration under section 53 of the Land Registration Act confines itself to vertical divisions. The provision reads in extensio thus: “No transfer of the freehold estate in, or of a right of occupancy in respect of which a certificate of occupancy has been issued over, part of a parcel shall be registered unless the division thereof is made vertically.” With respect to the subject matter of the present discussion, the above provision presupposes that unless the land is divided vertically, it won’t be registered under the Land Registration Act.

It is therefore a requirement under this Act that if the owner of a right of occupancy wants to have his title partitioned such a partition must be done vertically and not horizontally.

Now, with the advent of condominium law in Tanzania vide the enactment of The Unit Titles Act, section 53 of the Land Registration Act seem to be somewhat redundant. The Unit Titles Act imports the partition of land in a form which is purely in conflict with verticalization mode required under section 53 above.

With the advent of the Unit Titles Act, division of a right of occupancy by the occupier can be in a form contrary to what is required under the Land Registration Act. Section 5 (2) of the Unit Titles Act provides that;“The unit property may be in the form of high rise structures, or in rows or terraces or in buildings in a cluster form.”

Under this provision, the right of occupancy subject to division under the Unit Titles Act may be divided in a manner offensive to the Land Registration Act. Under this system, land may be divided anyhow regardless what is strictly prohibited under section 53 of the Land Registration Act which only requires vertical division for the purpose of registration.

With this new position of law, the question to be addressed by the relevant authority is; does it mean the Registrar of titles will reject to register a title under the Unit Titles Act on the basis of the division provided for under section 53 of the Land Registration Act? In my view, the answer should be definitely NO.

It should be borne in mind that under the Unit Titles Act as it does in condominium law generally, a holder of right of occupancy is allowed to divide his land into parts commonly known as units. These units are given their respective titles which essentially mean the sub-titles emanating from the pre-existed common right of occupancy. To obtain these unit titles, an occupier thereof has to divide the right of occupancy. Now as we have demonstrated above, under the Land Registration Act which is the principal law in so far as registration of land titles is concerned in Tanzania, such a unit title could only be registered if the division thereof is vertical.

Nevertheless, under the Unit Titles Act, the limitation of vertical division of land is totally ignored and hence horizontal division is allowed.

If we may trace the rationale behind the provision of section 53 of the Land Registration Act, one must recall the famous common law maxim “CUJUS EST SOLUM EJUS USQUE AD COELUM” which means: “Whose is the soil, his it is up to the sky’, or in a more simple explanation “He who possesses the land possesses also that which is above it”. Other elucidations are: “He who owns the soil owns everything above (and below) from heaven (to hell)”,’ and “He who owns the land owns up to the sky”. With this conception the division of any right of occupancy could only be effected vertically to allow the holder thereof to hold the same upward to the sky.

By summing up, with the coming into force of the Unit Titles Act, there is a need to make the necessary amendments in the Land Registration Act with a view to synchronise that law with the Unit titles law in order to do away with the restrictions which have been overtaken by events. This will bring coherence and harmony in the present system of land title registration.

Mr Ruben is a legal officer with NexLaw Advocates.