Proposed amendments to the Land Act of Uganda to reduce land disputes in Uganda
The relationship between the registered owners of land in Uganda and those with equitable interests in the land is fragile and characterized with suspicion and animosity. It is a ticking time bomb that is always a few seconds from exploding. The problem is worsened by the high prevalence of corruption in the Ministry of Lands which is responsible for land registration and the Judiciary that adjudicates disputes in Uganda. The problem of land disputes in Uganda is also fueled by a culture of fraud and dishonesty that has grown out of the glorification of corruption. In the end we have an ever growing problem of blood shed arising from land disputes, unlawful evictions and unmanageable land litigation.
The Land Act was meant to create a delicate balance between the interests of the registered land owners, who were ordinarily absentee land lords and the squatters or lawful occupants of the land. The law granted the occupants of land security of tenure and other rights in exchange for payment of rent and a first option to purchase in favour of the registered land owner. However the Land Act went overboard by destroying the property interest of the occupants if they sold or transacted without the consent of the Land owner. Though parliament may through legislation adjust the land rights of individuals, it has no power to take away full ownership rights without compensation. The right to own property is a natural right that exists outside article 26 of the Constitution of Uganda. Therefore, any legislation that purports to exhaust the rights of a person over land without compensation is presumably unconstitutional.
Since the right to property exists outside the Constitutional gaurantee, even the provisions of the Land Act, 1998 that transformed land owners who had acquired title by possession into tenants by occupancy over their own land amounts to unlawful taking. Prior to 1998, a person who occupied land adverse to the interests of the land owner emerged as the owner of the land after utilizing the land unchallenged by the land owner for twelve years under Section 5 and 23 of the Limitation Act. However, the tenants by occupancy created by the Land Act of 1998 encompassed the land owners by long use or occupancy thus making them tenants over their own land.
Given the various weaknesses identified in the social contract inherent in the Land Act of 1998 and the Constitution of Uganda, we can perfect the social contract by correcting the flaws of the Land Act. For example we can clarify the ambiguities in the Land Act and repeal provisions that have proved to be unworkable as discussed below:-
- Clarify the relationship between the Land Act and the Limitation Act. Legal practitioners including the Supreme Court of Uganda continue to misconstrue the relationship between the Limitation Act and the doctrine of adverse possession therein and the Land Act. As pointed out earlier the Land Act transformed individuals that occupied land unchallenged by the land owner for 12 years prior to the Constitution of Uganda of 1995 into a tenants by occupancy. Under the Limitation Act these individuals had acquired title by possession and the registered land owners held the land titles on trust for them. The beneficial or equitable estate in the land was vested in these individuals by the time Land Act was passed by Parliament. This injustice notwithstanding, some legal practitioners think that those who do not qualify as tenants by occupancy are not protected by the law. It is true that they can not benefit from the protection of the Land Act, but they can be protected by the Limitation Act if they have acquired title by long use or possession. For example if I entered your land in 2000, I do not qualify as a tenant by occupancy, but If I have occupied the land for more than twelve years then I am protected by the Limitation Act.
- Allow the registration of tenants by occupancy on the reversionary land title. If the tenancy by occupancy is registered on the reversionary title, Land lords will nolonger be able to deny the existence of occupants on the land and courts will always have notice of the existence of third party interests and have the means to communicate with them. There is an idiotic proposal circulating in legal cricles to require courts to visit locus in every land dispute yet the state and the litigants can not afford it and it would clog valuable judicial time when the workload and back log are very high. However having the occupants registered on the title is cheap and it offers lasting protection to the occupants against unscrupulous Land Lords. It’s is a matter of allowing self registration through a digital system or using the available registration procedure.
- Issue certificates of title to the tenants by occupancy. The Land Act purports to make a tenancy by occupancy registrable but offers inferior certificates of occupancy. This system has turned out to be unworkable and therefore, needs to be fused with the Registration of Titles Act to ensure seamless compatibility and integration. The tenancy should be registered on the land title of the land owner and a statutory lease curved out in favor of the tenancy by occupancy. The register for tenancies by occupancy created under the Land Act never took off and the procedures seem to have discouraged the issuance of certificates of occupancy. We now know that the separate system is unattractive to land owners because the Kabaka leases have been more popular and have more utility than certificates of occupancy yet they offer a term of years rather than ownership in perpetuity. Ugandans simply prefer Certificates of Title issued under the Registration of Titles Act.
- Collect rent on behalf of the Land Lords. The Land Act provides that a tenancy by occupancy can only be evicted for non payment of rent though one can obtain relief from eviction by paying the rent arrears. However, in some instances the tenant might not have the resources to pay the rent or the Land lord might corrupt the court process. Landlords tend to abuse this requirement by making it impossible for the tenant to pay rent. Obviously you can not pay a person whose particulars and address you do not know. Sometimes even Land Lords who are not unscrupulous end up making it impossible for the tenant to pay rent by their abscence. This issue also arises where there is a dispute over the ownership of the reversionary with a third party. As the dispute is being adjudicated for two decades the tenants have no landlord to whom they can pay rent. To create more protection for the tenants, the government should collect the rent on behalf of the landlords through URA or some other agency. As a tenant I should simply obtain an assessment and pay my rent through mobile money or other payment system.
- Require land lords to have a digital or physical presence on the land. Under the Land Act the tenancy by occupancy has many obligations to the Landlord including payment of rent. The tenancy is required to obtain consent from the landlord to transact with the land and give the land lord the first option to purchase. All these obligations have dire consequences for breach that can even lead to the tenancy by occupancy losing their interest in the land. Courts have not implied an obligation on the land owner to make himself available and accessible to the tenant to enable the tenant comply with his or her obligations. We argue that given the obligations of the tenant and the relationship between the Land Lords and the tenant by occupancy, there is a implied duty on the Land lord to make himself accessible by having a physical presence on the land or digitally so that any tenant can easily access him or her to comply with his or her statutory obligations. The Land Act needs to address this lacuna in the law by imposing an express statutory obligation on the Land lord. This will create greater protection to the tenancy by occupancy and reduce unnecessary litigation.
- Repeal the requirement for consent to transactions by the tenancy by occupancy. We argue that this requirement violates article 26 of the Constitution as far as it purports to extinguish the interest of a tenant by occupany who transacts with the land without the consent of the land owner. The state can not by legislation or otherwise take the land of an individual without paying compensation. The state can by Legislation restrict ownership of property provided that the property owner is left with reasonable property rights that he or she can exercise or enjoy in the property. In practice unscrupulous land Lords use this requirement to extort money from the tenants by occupancy who want to transact with the land. It should be noted that, in practice many tenants ignore the requirement and transact with the land without the consent of the land owner without fear of the dire consequences of breaching the requirement of consent. The situation is such that even banks accept mortgages over the interest of the tenant by occupancy without first obtaining the consent of the land owner. Notwithstanding the unfairness and the unconstitutionality of the consequences of not seeking consent, Parliament needs to reform this requirement. The best option is to repeal it and allow the tenants to transact with the land without the consent of the land owner. If repealing the requirement is not politically palatable then it should be replaced with payment of a set percentage of the value of the transaction or a fixed financial charge. A tenant should not be forced to beg the registered owner for consent or pay an unconscionable fee to obtain consent or engage in expensive and time consuming litigation to transact with his or her land. The payment should be collected by the government to prevent unscrupulous Land Lords from abusing it.
- Make registration of equitable interests compulsory. Land is the largest conduit for money laundering and a fertile ground for fraudsters in Uganda. It is the asset of choice for those that plunder public resources and the asset of choice for those that want to defraud others. The biggest driver of fraud in land transactions is unregistered equitable interests in land. It is perpetrated by back dating instruments to take advantage of the first in time equity rule that gives priority to the first in time equity. We can create an equitable interests register and decree that a person who does not register his or her equitable interest can not enforce it in a court of law. This way we shall accord protection to equitable interests and ensure that they are not used for money laundering or be used to perpetrate fraud. It will not eliminate these vices entirely but we shall eliminate the issue of undisclosed equitable interests and make land transactions more transparent. However given that many powerful people have their illicitly acquired wealth hidden in unregistered equitable interests, it is unlikely that parliament can create the equitable interests register. European countries and the United Kingdom have had an equitable interests register for more than three decades but African countries have rejected it because it affects the interests of the corrupt policy makers. Imagine if politicians could not buy land without registering their ownership of the land. Where would they hide their illicitly acquired wealth. Not everyone can own a billion shillings factory or business.
Amendment of the Land Act to repeal unworkable provisions will improve the statutory framework for land ownership and clarify the rights of the tenants by occupany. A person who wants to purchase the reversionary interest should be allowed to pay a fixed percentage of the value of the Land to the Land owner so as to become the registered owner of the land. If I want to buy the reversionary, the land act could provide that I should pay ten percent of the value of the land to the registered Land owner. By setting the payable Percentage of the value of the reversionary interest, the Act will create certainty and allow tenants by occupancy to plan their actions. These proposed amendments are not exhaustive but merely a starting point for the debate on how to improve the relationship between the Land owner and the occupants of the land.
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