4/24/2017

Types of co occupancy

1. Joint tenancy (joint occupancy)

2. Tenancy in common (occupancy in common)
Read s. 159 (3) of the LA as well as section 45
of the LRAA

Ic) KAMRU HABIBU 2017

1,Joint tengnoy joint gecúpane

Joint occancy arjsés wheland is given,
grante6r conveýed too oPmore persons
wittout the
words ing that each takes
isnct spáres i.e.hout words ofseverance
9 sepafation.
Here, the en estate/ornterest land is
vested siremeóusy in/the two more co
OwnerS.

e KAMRU HAEIGU 2017

119.
 Cont.
tach of them poses thc entire joint propel
by every part and by the whole.
N O Single joint occupier hoids a separate share

in the land himself.

hey Constitute a single composite owne

Joth

ttupoucy c) KAMRU HABIBU 2017

Characteristics of join occupancy

They are two:
4 unities
()the presence ot the
(ii) The right of survitgrship
( Lce o osddi l=Seno

c KAMRU iAE SU 20:7

 4/24/20.

of 4
N e ) - T E

unities P o o r d e s e l e e u K T S

The presence
(i)
a e es
a)Unity o fpossession=P

interest=l
(b) Unity of
title =T
(c) Unity of
=T
(d) Unity of time PITT
s u m m a r i z e d as
They are simply

2017
(c) KAMRU HABIBU

(a) Unity of possession

is eptitled to pOssession of
Each joint occupier with
every part and whole land in conjunction
o t h e r cO Owners.

of the land as his

nooccupier can poii anY part
own to theexclusiøn of
others. It he triesto do so
it will amount tótréspasS.
a s a general fule, 'one joint tenant cannot have
an trespass, in respect
actipn ag6inst another for
of hisand; #ór each has
equal rignt to enter on
an

any arV Y it, uness the coplainant has

actually been ousted.

c) KAMRy HABItU 2017

 4/24/20

(6) Unity of interest

Ihe interest of each joint tenant must be the

Same in extent, nature, and duration, because
in theory they hold but one estate.

Ihis means that although in theory each has

the whole of the land, the rents and profits
thereof are to be divided equally between
them.

() KAMRU HABIBU 20i7

(c) Unity of title

Each ioint occupier muSt claim his title to

.

the
and under the same act, document or
instrument.

The root title must be the same.

This is because the land Was

acquired throuph
the same conveyance.

(c) KAMAU HABIeU 2017

The interest or
title of each joint occupier
time and not at different
must be at the same
times.
tenant must be vested with the
Each joint as
time as well
interest at one and the same
by one and the same title

13
KAMRU HABIBU 2017
(

(ii) The right ofsurvivorship

I t is known as jusaccrescendi.
On the death of one joint occupier, his interest
in the land passes to the other iit
ocCupier(s).
This process continues until there i_ but one
survivor who holds the land as a sore owner

joint Occupancy pass under will or

cant
intestacy because the occupier's interests are
extinguished.

(c) KAMRU HABIBU 2017

14
 4/2a/20

Cont.
s.
159 (4) of the LA
dispositions may be made only by al! the joint
OCcupiers
on the death of
joint occupier, his interest shail
a
vest in the
surviving occupier or occupiers jointlys
a joint Occupier may transfer his interest inter
VIVOs to all the other occupiers but to no other
person, and any
attempt to so transfer his
interest to any other person shall be void.

(c) KAMRU HABIBU 20017 1S

Example
.
1fland is held by A, B and C as joint occupiers,
in thheyes of the law A, B and C constitute an
entity.
O n the death of A, the ownership. of A's
interest automatically remains in B and C.
The entire interest in the land merely survives
to B and C.

(c) KAMRU RABIBU 2C17

16
 A c c o r d i n gt o B l a c k s t o n e

ajoint
seized of
persons
are
decease
of
or
more
the ot
(wo upon and
..when tenancy
entire survivors,

to t h e entitied
sholl be
e s t o t e . . . t h e

remains
them and he jolnt
of two joIn
ony
the lost
survivor;
i
innt
teer
rees
stt of
of one
The is
length to estate. Ine but olso
whole Similar, distinet
to the equal or a
is n o t only
originally
tenants
One has n o t subsequent

any
and the same. other; but, if by of either e
the the joint
moiety from
forfeiture
alienation or distinct,
act (as by
and
separate
becomes
interest
tenancy instantiy ceases...

2017
HABIBU
KAMRU

(c)

it continues,
each of two joint
.But, while
interest
concurrent in the whole:
tenants has a

and therefore, on the death of his compaon,

interest in the whole remaina, to the
the sole
Survivo..."

(c) KAMRU HABIBU.2017

 A/24/

Cont.
What if all co occupiers died at the same time
in a single catastrophe?
Ditticulty to determine who died first so as t
know who survive who?
Tanzanian laws are silent
Resort to the common law -section 180 (1) (b)

Principle of the younger survives the older

Ic) KAMRU HABIBU 2017 19

The younger survives the older

This is the Principle provided under sectión 184 of the

English Law of Property Act, 1925 as follows:
o all cases where, after the commencement of this
Ac two or more persons have died in circumstances
renderingit uncertGin which f them survived the other
o r others, such deaths shal (subject to any order ofthe
court), for all purposes ojfecting the title to propertv
be presumedto n0VE OCCUfrea in order of seniority, and
accordingly the younger shal be deemed to have
survived the elader."

(c) KAMRU HABISU 2017

 H|CE1A
CA 4/24/20117

HC

Landmark cases

304
1945) AC of
HickmanvPeacey At the time
raid shelter wasup by a bomb.
blown
b a s e m e n t air follows:
a in the shelter a s
there w e r e five persons
the explosion
the occupier of the house;
S2,
1. Mabel Price-Jones,

2. her daughter; for Randolph Grosvenor

Parke, 70, housekeeper
Elizabeth Sarah
3 73, the first testator;
and
4. Randolph Grosvenor,
the second testator
5. Edward Grosvenor, 66, Will of (4) left
occurred because the ana
decease
difficulty in the
case
The at the date of my
if he w e r e "surviving (3) if tney
property to (5) to (1), (2) and
Willof (S) left property
also to (3). The
survived him.

21

KAMRU HASIBU 2017

(c)

Cont.
held
The House of Lords
evidence (that is,
absence of Such
"that in the deceased
any of the
evidence to show whether in
survived the others) they had died
had
i t uncertain hich of
circumstances rendering
other or others within the
them survived the
the Law Of Propertý Act 1925
meaning of s184 oj
accordingly in the administrátion of their
and that
estates by the executors of the respective Wills.
the younger ofthe deceased sh0uld be deemed to
have survived the elder

c) KAMRU HABIGU 2017

22
 Cont.

Iherefore, majority of the House of Lords helG

that s
184 applies unless
for certain who died
it is possible to say
first.

(c) KAMRU HABIBU 2017

23

Challenges ot this
presumption
where week-old baby and a man are
a

drowned in a shipwreck-is it true that the bav

will survive thé man?
.In case of simultaneous death twins where of
it cannot be proved which is the elder

(e) KAMRU HABIBU 2017

4
 Other presumptions
Under Roman law.

if a father and son perished in the same

the
shipwreck or battle and the son was under
was presumed that he died first.
age of puberty it
but if above that age, that he was the survivo",

upon the principle that,

in the former case, the
elder is generally the more robust,
and in the
latter the younger is présumed to
be more

robust.
25
(c) KAMRU HABI6U 2017

Civil law.presumptions
Followed the Roman Law as a basis. The following
are the rules:
1. To admit a presumption derived from the
difference either of sex or age or bodily strength
or from proximity to the place in which the
cause ot death arose.

2. To admit in all cases the presumption founded

on order of nature elder before younger.

3. To admit the latter only where the deceased

were of same sex, age or were of
age of pubertv.
i.e. where the younger will predecease the
older
() KAMRU HABIBU 2017
 41

Cont.
4.
Not to admit
any presumption when the ight
of him to succeed depended on predecease or
one in whom estate vested and survivorship or
him on whom devolved and
was claimed.
through whom it

5, Presume both died at same time and admit

heirs of both to share in
property

c) KAMRU HABI6U 20177

27

Examples
a mother and her
daughter,
aged four years, were
drowned, it would be
presumed that a child of
such tender years died first.
a father and two sons, one
over ànd the other
under the age of puberty, lost their lives in a
common disaster. presumption=who died firct.
1. the son under the age of puberty

2. the father
3. the son over the age of puberty.

(c) KAMRU HABIBU 2017

28
 4/24/2017

Napoleonic Code
Presumptions under
is determined byy
ot surVivorship
the
presumption
and in defect of
circumstances
of the event
the sex.
of age and
such by force under 15
perished together w e r e
who
I f those eldest shall be presumed to have
years
the
survived.
shall be
I f they were all above
60 the youngest
have survived.
presumed to others more

were under 15
years and to have
I f some shall be presumed
the former
than sixty,
survived.

KAMRU
HABIBU 2017
(e]

Cont.
together w e r e of
the
who perished
1 f those less than sixty
complete but
age of 15
years survived
to have
always présumed
the male is of age or if the
there is equality
where one year.
not exceed
difference does

were of the same sex the presumption

If they have
the younger
is presumed to
is that
survived the elder

KAMRU HABIBU 2017

(

15
.
 a 24|

Creation of joint occupancy

It is
simply by granting the land
jOintly without the words of to OCCUpi
In Tanzania, severance.
only spouses are capable ot;
creating joint occupancy.
Other persons than
spouses can only create
Joint occupancy after
the court.
obtaining the leave of
Read s. 159 (8) LA
le) KAMRU HABIBU 2017
31

Question
I n youropinion what are advantages an
disadvantages of the scheme of creating ioint
occupancy?

(c) KAMRU HABIeU 20:7

32
 4/24/2017

Determination ot joint occupancy

between the co
By mutual agreement

OCCupiers
into
converting the joint occupancy
N
ByBy LA and
occupancy in common. See S. 159 (7)
Land Form No. 61
one Co
survivorship-when only
ryBy right of
Occupier survives.

33
(c KAMRU HABIBU 2017

in
in common (occupancy
2. Tenancy
common)
when land is granted to two or more
This is
Simultaneously and they have a
persons
that.land.
Concurrent interest in
or fixed share
B u t each occupier has a definite
LA
Read s. 159 (3) (b)
in terms of law is
Generally, that share,
share. They occupy
referred to as undivided
Each will realize his
that land in common.

share during sale of that land.

icfAMAU HABIBU 2017

17
 Cont.
I n contrast to a joint occupancy, an occupancy
in common has the co-occupiers occupying

interests in the land in proportion to their

interest.

The share of an occupant in common is said to

be an "undivided" share. It is a separate share
but not a physically divided share.

c) KAMRU HABIBU 2017 3S

Cont.
There is no right of survivorship.
No four unities save for unity of possession i.e. all
occupiers have the right to possess the whole of
the land.
' Read
S. 159 (6) LA

S. 160 LA-Each co-occupier of a right of

occupancy shall be entitled to receive a copy of
the certificate of title of that right of occupancy.

(c) KAMAU HABIBU 27A 36

 4/24/2017

S. 159 (6) LA
in
occupier
of an
restrictions

provides
It share his
with hs deal with
dealing shall
c o m m o n
other
in person
occupier of any
No share in favour
except
undivided common,

occupierin remaining

than another of the

consent
in writing
the
with unreasonably

occupiers. be
shall not
consent
Such

withheld. 37

HABIBU
2017
KAMRU
c)

Cases to read

HCD n. 165
Dhillon [1969] 353°T
Aggarwal
vs Abdallah [1992] TLR
1. vs
Awadh
Mohamed
KLR 1
2. Omary
vs Kaur
(1935) 17 DuAs
3.
Thaker Singh
Patel (1939)
6 E.A.C.A. 48 supa T
Patel v. D.M. 11 EA
-
ou
4. 6.V.
another1
[ 1s
9/72
21]
v Patel and
M u t u a l Benefits Ltd
5. held:
where it was
the
496
raises a presumption against
common

a tenancy in to a partnership;
property
belonging to bind his c 0
has no authority
tenant in common can deal with their
a that they
owners,
the e s s e n c e being common to them
is
that possession
shares, but

(c) KAMRU HABIBU 2017

8
 4/24

between
Remedies in case of conflict
OCCupiers

i) Partition-

into occupiers
dividing the land
of the LA
S.162
a prescribed
Application to the
Registrar in

forrm
of the LA
Read s. 162 and 163
for partition
Note: the procedures

39
(c) KAMRU HABI5U 2017

I a(3.62 63,1644

(ii) Sale
S . 164 of the LA
of partition or the
Where the. land is incapable
attect the proper e
partition will adversely
of the land.
agree on the terms
occupiers cannot
I f the co
ot sale they may apply to the
and conditions
for an order of sale.
COurt

has an option to purchase

Either occupier

HABIBU 2017
(c) KAMR 40
 4/24/2017

Co occupancy and spousal

relationships
mainly are
Spousal proprietary relationship
Law of Marriage Act Cap 29
governed by the
of
LMA provides for division
S. 114 of the
properties after divorce.
matrimonial
has an interest
presumption is that spouse
a
A the
property acquired during
in the
subsistence of the marriage.
allowed to maintain a separate
But a spouse is
property.
HABI6U 2017
(c) KAMRU

Before the Land Act

Presumption of joint efforts

Section 114 of the LMA Cap 29
Case laW

B i Hawa Mohamed
vs Ally Sefu [1983] TLR 32
Whether domestic services amountsto
contribution

Ic) KAMRU HABIBU 2017

2
Cases-where land in wife's names

Saida Said vs. Saidi Mohamed Civil Appeal

No. 26 of 1990, CAT at DSM (Unreported)
Application of s. 100 of TEA, Cap 6-exclusion
of oral evidence where there is documentary
one.
nce the land is registred in the name of the
appellant it is her property

cKAMRU HABIBU 2017 43

Cases-cont.

Rene Pointe vs. Mary Rugomomora

Miscellaneous Matrimonial Cause No. 1 of
1990 High Court, Mwanza Registry.
. A retired officer who had spent the whole of
his terminal beneits in constructing the house
was denied share in that nouse on the ground

that the title deed was n the name of the

wife. Oral evidence excluded by documentarry

evidence

Ic) KAMRU HABIBU 2017

 4/24/2017

After the Land Act

in land
Some reforms
for presumption
S . 161 (1) of the LA providesb e t w e e n spouses
conmmon
in
occupancy
of one spouse
for the
acquired by
where land is
use of all.

IS
HABIBU 2017
KAMRU
(c)

Cont.
LA
S . 161 (2) of the contribute by their
other spouse(s)
W h e r e the and
upkeep
the productivity,
labour to
of the land, that spouse(s) shall
improvement to have
virtue of that labour
be deemed by that land in the nature
i n t e r e s t in
acquired an
oCCupancy
in c o m m o n .
of an
Hawa
of Bi Hawa
the decision
recognizes
11983] TLR 32. read it.
It
It
Mohamed vs Ally Seif

KAMRU HABIBU 2017

c)

23
 4

Cont.
S. 161 (3) of the LA
N o mortgage, transfer or assignment ot l3na
until the spouse(s) have consented to that In
accordance with section 59 of the Law of
Marriage Act.
I t is the of the lender or transferee or
duty
assignee to make inquiries if the borrower
spouses) has/have Consented to that
disposition.
c ) KAMAU HABISU 2017 47

Cont.

Effectsoflack of Spousalconsent:
.the disposition shall be voidable at the option
of the spouse or spOuses who have not
consented to the disposition.

Voidable-the spouses) may aftirm or rescind

the disposition

(c) KAMRU HABIG 2017

 4/24/2017

For mortgages

matrimonial
home
Mortgage of
Section
114 land Act
consent
makes the mortgage
Lack ofspousal
void, n o t voidable.

Mortgage
(mortgage ofa
M o r e on
matrimonial home)

HABIBU 2017
c) KAMRU

(nlie o sthom

eudd
aue dCiadadautages
ute etiued adAuka ges

25
 a/24/201

MZUMBE UNIVERSITY
MBEYA CAMPUS COLLEGE
LAW 221

TOPIC TWNO: LEASESs

BY KAMRU HABIBU, ADVOCATE

TERMINOLOGIES*
LEASE=means a grant of possession of landed
property to last ifor life of a person or for a
period of time certain
I t is also known as demise
TENANCY= is used
interchangeably with a lease
and it connotes a
shorter period than a lease
LESSOR= a person who grant a lease-landlord
LESSEE= a person to whom a lease is granted
known as the tenant
 Cont.
his
tenant leases
Sublease= sublet, where the
someone
else
lease to
that the
Reversion=
the bundl ofright
landlord remains with
either
interest of
A s s i g n m e n t = t r a n s f e r
of the
landlord or tenant

Demised/lease premises

Essentials of a lease
possession
exclusive
(i). Rightto have the right to exclude
must
tenant
The premises,
demised
the
others from remains in
granting
the iease
person
If a
of the property e.g. the
general control lease.
boarding.orlodging
itis not a
has no tenancy. He is merely a
Mere lodger
licencee.