Wednesday February 11 2015

Explaining the different types of land tenure

In Karamoja, land is owned under the customary

In Karamoja, land is owned under the customary land tenure system. Photo by Stephen Wandera 

By Joseph Ssemutooke

Four years ago, Naboth Amanya paid Shs15m for seven acres of land in Mpambire village, along Masaka Road.
Everything went according to plan, with the genuine owner of the land, Ronald Mutebi transferring the title of the seven acres into Amanya’s names.
However, when Amanya began constructing on the land, the squatters whom Mutebi had said would vacate the land upon a simple notice informed Amanya that they were going nowhere unless they were compensated.
When Amanya threatened to forcefully evict them from the land, they vowed to pick up axes and sticks to fight off whoever turned up to evict them. Amanya took the case to court, but to his shock, it was ruled that if at all he was to evict the squatters, he had to compensate them because they were lawful tenants.
If you ask dealers in the business of land, this kind of story is a rather familiar one in their circles, where a person who has legally bought land from a bona fide owner faces off with squatters demanding compensation before they depart from it.
It is one of the reasons why different real estate dealers advise that before you purchase a plot of land, you should know what type of tenure (the type of ownership or system) the land is under as well as the implications .

TYPES OF LAND TENURE
Denis Obbo, the spokesperson at the Ministry of Lands, Housing and Urban Development, says there are four types of land tenure clearly spelt out in the the constitution of Uganda. Thes e include mailo land tenure, freehold tenure, leasehold tenure and customary tenure.
Obbo says one ought to be conversant with the nitty-gritty of these tenures before buying land under any of them.

Freehold tenure (Kabaka’s land)
The Land Act 1998 defines freehold tenure as a tenure that bestows upon someone ownership of registered land in eternity –which Obbo says means “owning the land forever,” he explains that this type of tenure was set up by the 1900 agreement between Buganda and the British colonial government.
He says most owners of land under this tenure acquired it as grants from the colonial government before independence and from the Uganda Lands Commission after independence –with only a few having bought it mostly from government.
The Land Act specifies that the holder of land in freehold has full power of ownership, which means they can use it for any lawful purpose and sell, rent, lease, dispose of it by will.
The act also decrees that only citizens of Uganda are entitled to own land under freehold tenure, with non-citizens allowed only the alternative of leasing it for a period of up to 99 years.
About obtaining certificates of title under this tenure, Obbo says tenure is pursued directly through the government authorities where the Sub-county land office, the district land office and the zonal office of the Ministry of Lands are all involved.

Mailo Tenure
Yusuf Nsibambi, a lawyer, says this type of tenure is predominantly in Buganda, with some minimal parts of Ankole, Bunyoro and Tooro sub-regions having it. He describes Mailo tenure as one where permanent ownership of a large plot of land belongs to landlords who acquired it through the 1900 Buganda agreement, while at the same time tenants on the land are recognised and they also have rights to live on and utilise the land.
Nsibambi explains, “Under Mailo land tenure, owners have perpetual ownership and are free to sell or pass on their rights to their heirs. On the side of selling, many mailo holders have since 1900 sold off their holdings, to such an extent that the Ministry of Lands puts the number of owners to have risen to more than 200,000 today courtesy of so many having inherited or bought parts of what was previously one piece of land, thereby causing its subdivision,” the lawyer says.
On the side of the constitution, it states that mailo land owners are not allowed to use their powers against the interests of customary tenants, bona fide or lawful occupants.
This provision was introduced in 1998 and revised further in 2010 with the aim of inhibiting the possible eviction by landlords of people occupying mailo land as customary tenants or squatters.
Ministry of Land’s Obbo says it is important to note that there are no more new titles issued for land under Mailo tenure, because all titles were issued prior to 1928.
He says what is done today is only further subdivision of the existing titles which were issued prior to 1928, as well as changing the names on the titles in cases where ownership is being transferred. Under the process of subdivision and transfer of ownership, Obbo says the applicant and the transferring land owner both fill application forms with the zonal office of the ministry of lands in their area, then wait for the zonal office to complete the rest of the process.

Customary tenure
Obbo explains that with the exception of Buganda which is mainly held under Mailo, land in other parts of Uganda is held mostly under the customary tenure. He says the Land Act of the Constitution describes this tenure as one where land is owned communally, by a clan, or a tribe, among others. Obbo explains that there are different forms in which customary land tenure exists in different parts of Uganda. “In some places the land is held communally, in some it belongs to a particular clan while in others, it is held by individuals.
The rules of customary law also vary in different parts of the country. The Land Act 1998 states that customary land tenure shall be governed by rules generally accepted as binding by the particular community, and anyone who acquires land in that community shall also be bound by the same rules.” says Obbo.
He adds that with customary tenure, obtaining of a private certificate of title is possible for individuals, whereby they simply have to agree with the community that owns the land (the clan or tribal chiefs), then the Sub-county and government land boards take up the process of issuing the title. The constitution also provides for turning of an individual on communal tenure into one on freehold, and lease hold can also be issued by owners to tenants under this tenure.

Lease hold
The 1998 Constitution describes leasehold tenure as one where one party grants to another the right to exclusive possession of land for a specified period, usually in exchange for the payment of rent. Under this type, a land owner (whether through freehold, Mailo or customary tenure) grants a lease to another person.
Obbo says in practice, much of the land that is leased was previously owned by government bodies, particularly the Land Commission and the District Land Board, and normally this comes with some development conditions imposed on the land’s subsequent use by those to whom it is leased.

Process of getting a mailo land title

Process. The process of obtaining a certificate of title under Mailo land is supposed to be done through law.
Type. Denis Obbo, the spokesperson of the Ministry of Lands, Housing and Urban Development points out that it is important to note that no new titles are offered under Mailo Land, but rather old titles are either subdivided or transferred into new names.
Necessities. He says in order to get a land title subdivided or transferred; you get the plot and block number of the land, then present it to the Registry of Titles who will confirm whether it is registered.
The buyer. After, you pick an application form from the Land Commission, fill it in (indicating either subdivision or transfer) and return it to the commission.
The seller. At the same time, the owner from who you are buying fills in a transfer form and two consent forms.
Surveying. Thereafter a survey of the land is done, and the ministry completes the process by filling and issuing a mutation form,
Getting the title. After the process is complete, the ministry offers you your title either subdivided off an existing one, or an old one fully changed into your names.

CHALLENGES
According to ASP Emilian Kayima, the spokesman of the Land Protection Unit of the Uganda Police, the problem of dual ownership mainly on Mailo land is a challenge which has arisen as a result of the law giving rights of ownership and usage to more than one person for the same plot of land.
He says in its interest to protect tenants, the law gives the tenants powers that are almost of ownership, because the law states that a landlord cannot sell off any piece of land without the consent of the tenants. Kayima says this is the cause of most of the wrangles among people who buy land under Mailo tenure and tenants they find on the land.
Kayima says, “What some Mailo landlords do is sell off land without the consent of the tenants, and in the end the new buyer gets in trouble with the tenants who were not informed of the sale by their landlord, yet the law protects them that if they were not informed then they have to be compensated.”
Kayima therefore advises that anyone buying land under Mailo tenure where the land has tenants, the buyer has to first ensure that the existing landlord and his tenants have reached a memorandum of understanding, or else the buyer will end up in conflict.”

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