course work of land law

ISLAMIC UNIVERSITY IN UGANDA

LAND LAW COURSE WORK

COURSE:        LLB 11

SEMESTER:        1

COURSE UNIT:   LAND LAW 1

REG:   210- 053012- 02715

LECTURER: LYDIA MATTE

QUESTION: the protection of equitable interest in unregistered land is far weaker than the protection given to equitable interests in registered title. However, the registration of titles Act was only meant to provide a temporary system and at least unregistered title is fast disappearing.

Discuss

REFERECENCE

THE 1995 CONSTITUTION (AS AMENDED

LAND ACT OF 1998.

REGISTRATION OF TITLES ACT CAP 230

MORTGAGE ACT

PRINCIPLE OF LAND LAW BY JOHN T MUGABWA

SOURCE OF LAND BY JOHN T MUGABWA

MEGGARY AND WADE THE LAW OF REAL PROPERTY

CASE LAW

Legal interest is right in Rem whilst an equitable interest is a right in personam. Therefore both principles are summed up in a cardinal maxim in which it expressed the true difference between legal and equitable rights “legal rights are good against all the world; equitable rights are good against persons except a bona fide purchaser of the legal estate for value without notice,& those claiming under such purchase”

Equitable interest is the right in property such as that of a life tenant or the beneficiaries of trust that tantamount the real right but not legal right. An equitable owner was therefore never quite in the impregnable position of the legal owner. Because he never had an absolutely indefeasible title but the rules relating to notice and the system of conveyance founded upon them protected equitable interests therefore they became much more than rights in personam against trustees[1]. And in instances of fraud, equity did not deny the legal owner (trustee) the land but prevailed upon trustee to carry out the trust in accordance with the grantors instructions. Hence there was duality of ownership with the trustee owing a legal fee simple estate in land and young children an equitable estate in fee simple[2]        Equity regards as done that which ought to be done.

The torren system was developed by Robert torren aimed in providing simple secure and fair registration of land & a central registry of land thus introduced in Uganda by the registration of titles Act (R.T.A) so that one owes it legally by law.

The registration of titles automatically applies to all mailo land included in any final mailo certificate and all lands alienated in freehold of leasehold and any transaction relating to such land[3] where as unregistered land is which title is not registered but established by the title of deeds of a particular property therefore customary land tenure is not registered under the Act[4]

How the protection of equitable interest in unregistered land is far weaker than the protection of equitable interest in registered title.

 As a general rule, where a legal interest is created first it will not be affected by subsequent equitable claims. In absence of fraud a registered title prevails over a person takes a better title than a person who purchased the same land earlier but did not register his or her interest.  The case of Ndigejjerawa v Kizito and Kubulwamwana[5]  Held that Kubulwamwana’s equitable interest had priority because it was created earlier than that Ndigejjerawa’s interest. The court said that prior lodgment for registration of instrument of transfer, which was not in registrable form, could not give Ndigejjerawa a better claim to land than Kubulwamwana. It might have been different if Ndigejjerawa’s document were in a registrable form

Registered person protects the purchaser not affected by notice actual or constructive of any trust or legal interest, any rule of law or equity contrary not withstanding[6]

In unregistered land, currently in Uganda, no one can transfer an estate or interest unless it is registered as acquired by the R.T.A by the registrar. No instrument is effectual until registered. No instrument until registered in the manner herein provided shall be effectual to pass any estate or interest in any land or to render the land liable to any mortgage; but upon registration the estate or interest comprised in the instrument shall pass[7] In the case of Ndigejjerawa v Kizito and Kubulwamwana[8] Ainley j judgment: “… No instrument or document can be registered unless it fulfills the requirements and no instrument is effectual to transfer any interest in land unless it has been registered…” reference[9] held: none of the buyers got title since none of their documents relied upon the statutory requirement of the ordinance thus they were only entitled to damages or one entitled to specific performance a remedy.

Registered land can be disposed off by the owner under any proof that he holds the legal title, section 92 (2) which provides that after registration of land, transfer of the estate and interest of the proprietor can be disposed under any power. In the case of Lumu v Lindo Musoke[10] the plaintiff was the registered proprietor of the subject land and entered a contract to sell the land to the defendant, the plaintiff duly executed the necessary document for transfer of the land but a caveat was lodged by a third party, Held: that the agreement   did not transfer any interest in the disputed land to the defendant but it gave him contractual right to claim for damages for specific performance if the plaintiff refused to execute in his interest the statutory transfer because of equitable interest.

In absence of default and fraud a registered proprietor are protected against action of ejectment that may be sustained on them by the law[11]as compared to the unregistered land, therefore since one has a title it is a conclusive evidence of ownership& ejection will be in violation of Article 26(1)  which is a protection from deprivation of property. In the case of Lwanga v Registrar of title court held: Salongo was a bona fide purchaser for value thus under our current section 176 of R.T.A his title could not be cancelled not withstanding that he acquired his title from a forger, Therefore the case potrays the applicability of principle of indefeasibility in the way that a certificate is conclusive evidence of the title.

---

[1] For example, a trustee could be instructed to use the proceeds of land for the welfare of the grantor’s young children after the grantor’s death. Such arrangement had further advantage of avoidance of feudal dues on inheritance. See cheshire & burn’s modern law of real property, supra, pp.38-42

[2] Effectively the trustee was a manager whilst young children enjoyed the benefits

[3] Section 9(1), R.T.A

[4] Certificates of customary ownership of land are ‘recorded’ under section 69 the land Act , 1998, chap  2

[5]  (1952-6) 7 ULR 31

[6] Section 136 of the Registration of title Act (R.T.A)

[7] Section 54 of the R.T.A

[8] (1952-6) 7 ULR 31

[9] Section 54 of the R.T.A

[10] [1974]HBC 19

[11] Section 176 of R.T.A

doreen

Definition of land

Land in law is normally defined as what it is composed of, therefore land includes the surface of the earth i.e. soil and every surface such as buildings, vegetation, water bodies, minerals and the space above the earth surface[1]. And that matter that is why land law is called/ referred to as the law of real property[2].

Definition of property

Property refers to anything that which belongs to a person for example one’s belonging may be tangible[3]. Personal property which is defined as something you can touch and move while intangible personal property is that property that has no physical existence for example stocks bonds, bank notes, trade secrets, copy rights, trademarks and so on

We should note that tangible personal property can be represented with a certificate/ license.

Property is classified in two categories

·        Real property/ reality

This refers to immovable property as well as rights derived or obtained from such property and here we refer to soil itself, building, minerals and all other things which form part of or are attached to land[4]

·        Personal property / chattels

This refers to chattels, it can be defined as property that can be moved, and it is also called personality

As land law is referred to as the law of real property the following are differences between real and personal property

Real property is immovable property that cannot be moved from one place to another for example land cannot be moved from one place to another while personal property is movable property which can be moved transferred from one place to another. Mirrors, tables, chairs, books

Since property in real property immovable, rights are derived from such property like the right to way called easements, right to collect water from another’s  land called profits apprendre, fire wood while personal property the owner of property enjoys individually his rights and can decide what to do with his property any time he wants

In real property fixtures are attached to land so that they become part of land(as the cardinal principle such objects are called chattels while in personal property chattels exist and can be moved from one place to another however tests are carried out under  real property by a court / judge to determine what amounts to a fixture.

Rights under real property are recognized by law and enjoyed by any one person provided such rights exist on that land while in personal property sometimes, aright may be enforced by an action in court or through a choice of action that arises under a contract for example:  If C owes D a sum of money, the debt is intangible and cannot be physically possessed, so D can enforce his right by suing on a contracting order to recover the money owed to him. Other examples are shares, bank notes, copy rights, bonds and so on[5].

Concept of possession in real property under original claim for example where land has never been acquired by any one (virgin land) a person who therefore clears it and puts it to productive use, such a person acquires original claims or through inheritance while personal property a person just possess.  We should note that there is also ownership by derivative means, where property is acquired from its original or current owner who at the time abandons the property and hence its ownership is said to have been obtained from the previous owner[6].

In real property chattels are attached to land so that they become part of land for example if an object is placed on land, it loses its character as a chattel and it becomes part of land as the cardinal principle of common law that whatever is attached to soil is part of soil (Quit Quid Plantarus Solo Solo Credit)[7]

Chattels under personal property can be removed separated from land without it losing its identity, prima facie a chattel can remain a chattel & the other as a fixture while in real property  which is immovable is permanent fixture that cannot be transferred from one place to another[8]. For example in the case of Webb v Beris[9], it was found that concrete was separated from entire structure and the super structure could be removed without destroying the foundation and that therefore, the super structure was a chattel

In personal property a person may want or have an intention to make an object part of land which depend on the weight of the object as it was put forward in the case of Holland v Hodgson[10], that the true rule is that articles which are attached to the land by their own weight cannot be part of land and that is why there is the degree of annexation i.e. Syper v Philiphson[11], noted that comparatively durable method of annexation will not make fixture/ chattel under personal property , objects can be separated in two parts

·        As a chattel

·        A fixture

Therefore the removable part is a chattle while in real property, property cannot be separated, and for example land is immovable including the surface of the earth, soil, minerals, vegetation, space above the earth.

For example in the case of Webb v Beris[12], it was found that concrete was separated from entire structure and the super structure could be removed without destroying the foundation and for that matter the supper structure was a chattle.

Under real property an object which is  a fixture, such an object cannot be removed because it’s part of soil as the cardinal principle of common law (quit quid plantarus solo solo credit) meaning that whatever is attached to soil is part of soil while if it is removed by express agreement or if it falls under common law exceptions to the general rule and parties agree on the time of termination tenancy then it can be called personal property and absolute owner of land will compensate the tenant for the fixtures. Fixtures that were developed in common law are trade fixtures attached by the tenant for purposes of his / her trade.

Tenant fixtures: these are removable by the tenant,

Ornamental domestic: fixtures these are chattels fixed to a building for ornament or convenience purposes for example dressing mirror on the wall, agricultural fixtures regarded as normal use of the land[13].

However there are some similarities between real and personal property.

In real and personal property there is ownership of property whether immovable or movable. Intangible or tangible

In both, tangible rights exist. Under real property for example land. It can be physically touched therefore tangible and in personal property objects like cars, chairs, and table are tangible and can be touched. Under both properties, rights exists for example in personal property a person has the right to move his property form one  place to another and also chose in action which is an intangible right that can be physically possessed and can enforce such a right fro example a debt by an action in court, this normally arises in contract.

In real property the rights that are derived are, a right of way which is called easements, to collect firewood, water from another land called profits apprendre.

In both properties there is a concept ownership as a state/ fact of an exclusive right and control over property, possession, a state of having or owing something as Meggary’s mannal of Law of Real Property[14] says that even if the building was constructed using stolen materials they all in law become a gift to the ultimate owner of the land, because whatever is attached to the soil is part of soil as the cardinal principle states it.

In both properties there is land as the main concept as land is defined by what it is composed of as soil, minerals, space above the earth surface and chattels that are attached to land and become part of the land for example in the case of Bushland v Butterfield[15] , it was found that there was sufficient connection of a verandah to the house to make the verandah part of the building.

Both personal and real property have benefits to the owner and the community in a way that since whatever is attached to soil is part of soil, if a person constructs a building for commercial use, people will be employed on such building to work and earn a living and on land itself we can get firewood to cook food, water for domestic use

In conclusion, Real and Personal property are divisions of property and people have a possessive attitudes towards their property in which have differences and similarities

REFERENCE

  Principle Of Land Law  by John Mugambwa

  Meggary And Wade 7^th Edition

  Cheshire And Burn

---

[1] Principle of land law by John Mugambwa

[2] Principle of land law by John Mugambwa

[3] Principle of land law by John Mugambwa

[4] ibid

[5] Cheshire and Burn chapter 10 ESP

[6] Meggary and  Wade 7^th Edition

[7] Principle of land law by John Mugambwa

[8] Principle of land law by John Mugambwa

[9] [1940] 1ER 247

[10] 1872 LR 7 CP 328-334

[11] (1931) CIT 183

[12] ibid

[13] Cheshire and Burn

[14] Meggary and  Wade

[15] 1920 20 board and Bing law report

course work

  

Definition of land

Land in law is normally defined as what it is composed of, therefore land includes the surface of the earth i.e. soil and every surface such as buildings, vegetation, water bodies, minerals and the space above the earth surface and that matter that is why land law is called/ referred to as the law of real property.

Definition of property

Property refers to anything that which belongs to a person for example one’s belonging may be tangible. Personal property which is defined as something you can touch and move while intangible personal property is that property that has no physical existence for example stocks bonds, bank notes, trade secrets, copy rights, trademarks and so on

We should note that tangible personal property can be represented with a certificate/ license.

Property is classified in two categories

·        Real property/ reality

This refers to immovable property as well as rights derived or obtained from such property and here we refer to soil itself, building, minerals and all other things which form part of or are attached to land

·        Personal property / chattels

This refers to chattels, it can be defined as property that can be moved, it is also called personality

As land law is refered to as the law of real property the following are differences between real and personal property

Real property is immovable property that cannot be moved forom one place to another fro example land cannot be moved form one place to another while personal property is movable property which can be moved transferred from one place to another.e. mirrors, tables, chairs, books

Since pproperty in real property immovable, rights are derived from such property like the right to way called easements , right to colletc water from anothers land called profits apprendre, fire wood while personal property the owner of property enjoys individually his rights and can decid what to do with his property any time he wants

In real property fixtures are attached to land so that they become part of land(as the cardinal prinple such objects are called cahttles while in personal pproperty cahttles exist and can be moved from one place to another how ever tests are carried out under  real property by a courut / judge to determine what amounts to a fixture.

Rights under real property are recognized by law and enjoyed by any one person provided such rights  exist on that land while in personal property sometimes, aright may be enforced by an action in court or through a chose ofaction that arises under a contarct for example  if c owes D a sum of money, the debt is intangible and cannot be physically possessed, so D can enforce his right by suing on a contracting order to recover the money wed to him. Other examples are shares, bank notes, copy rights, bonds and so on

Concept of possession in real property under originall  claim for example where land has never been acquired by any one (virgin land) a person who therefore clears it and puts it to pproductive use, such a person acquires original claims or through inheritance  while personal pproperty a person just possess

We should not that there is also ownensrship by derivative means, where propertyis acquird from its original or current owner who at the time abadones the pproperty and hence its ownership is asid to have been obtained from the previous owner

In real property chattels are attached to land so that they become part of land fro example if an object is placed on land, it lloses its charateas a chattle  and it becomes  part oof land as the cardinal principle of common law that what ever is attached to soil is part of soil(quit quid plantarus solo solo credit)

Chattels under personal property can be removed separated from land without it losing its identity, pprima facie a chattle can remain a achattel & the other as a fixture while in real property  which is immovable is permanent fixture that cannot be transferred form one palce to another. Fro example in the case of Webb v Beris, it was found that concerte was separated form entire structure and the super structure could be remobed with out destroying the foundation and that there fore, the super sturcuture was a chattle

In personal property a person may want or have an intention to make an object part of land which depend on the weight of the object as it was pput forward in the case of Hollland v Hodgson, that the true rule iis that articles which are attached to the land by their own weight cannot be part of land  and that is why there is the degree of annexation. i.e. Syper vPhilphson, noted that comparatively duarable method of annexation will not make fixture/ chattle under personal property , objects can be separated in two parts

·        As a chattle

·        A fixture

Therefore the removable part is a chattle while in real property, property cannot be separated, for example land is immoovbalbe including the surface of the eart, soil, minerals, vegetation, space above the earth. For example in the case of Webb v Beris, it was found that concrete was separated from entire structure and the super structure could be removed with out destroying the foundation and for that mater the supper structure was a chattlel.

Under real property an object which is  a fixture, such an object cannot be removed because its part of soil as the cardinal principle of common law(quit quid plantarus solo solo credit) meaning that what ever is attached to soil is part of soil while if it is removed by exprees agreement or if it falls under common law exceptions to the general rule and parties agree on the time of termination tenancy then it can be called ppppersonal pproperty and absolute owner of land will compensate the tenant for the fixtures. Fixtures that were developed in common law are trade fixtures attached by the tenent for purposes of his / her trade.

Tenant fixtures: these are removable by the tenant,

Ormamnetal domestic: fixtures these are chattels fixed to abuilding for ornament or  convienince purposes fro example dressing mirror on the wall, agriculturall fixtures regarded as normal use of the land

However there are some similarities between real and personal property.

In real and personal property there is ownership of property  whether immovable or movable. Intangible or tangible

In both tangible right exist. Under real property for example land. It can be physically touched therefore tangible and in personal property objects like cars, chairs, tableare tangible and can be touched. Under both properties, rights exists for example in personal property a person has the right to move his property form one  plce to another and also chose in action which is an intangible right that can be physicallypossesse and can enforce such a rifht fro example a debt by an action in court, this normally arises in contract. In real property the rights that are derived are, a right of way which are called easements , to collect firewood, water from another land called profits apprendre. In both pproperties there is a concept ownership as a state/ fact of an exclusive right and control over property, possession, a state of having or owing something as Meggary’s mannal of  Law of Real Property says that even if the building was constructed using stolen materials they all in law become a gift to the ultimate owner of the land, because what ever is attached to the soil is part of soil as the cardinal principle states it.

In both properties there is land as the main concept as land is defined by what it is composed of as soil, mminerals, space above the earth surfec and chattels that  are attached to land and become part of the land for example in the case of Bushland v Butterfield , it was found that there was sufficient connection of a verandah to the hous to make the verandah part of the building.

Both personal and real property have benefits to the owner and the community in away that sinec whatever is attached to soil is part of soil, if a person constructs a building for commercial use \, people will be employed on such building to work and earn a living and on land it sellf we can get firewood to cook food, water for domestic use

In conclusion, Real and Personal property are divisions of property and people have a possessive attitudes towards theirproperty in which have differences and similarities

REFERENCE

  Principle Of Land Law  by John Mugambwa

  Meggary And Wade 7^th Edition

  Cheshire And Burn