A BRIEF OPINION ON PROCEDURES OF TRANSFER OF LAND AND REGISTRATION.

RE: A BRIEF OPINION ON PROCEDURES OF TRANSFER OF LAND AND REGISTRATION.

1.Procedure of transferring Land (Conveyancing)

i .How can a land be transferredLands can be transferred in different ways, mainly in Tanzania land can be transferred by sell that is the one who has the right of occupancy transfer his / her right to a person who does not have title to the said land. The subject matter in this transaction is always the improvement done on the land and not the soil. As the land in Tanzania is mostly or is a ‘public lands’ so one can not claim right of ownership over the land so as the result what is then transferred is the improvement done on the land and not the soil itself.

ii. Moreover in any transfer of right of occupancy the agreement as to be executed on writing that is the deed as to be drawn. In any case where by the deed was not drawn then the said agreement becomes enforceable.iii. Caveat Emptor This is a Latin maxim which simply means “buyer beware”. The Purchaser shall inquire about the legality of the title holder that is as to whether the seller has a good title to the land. Further to do an official search with the land registry to see if the title is free from any encumbrances.

iii. Official search and requisition as to title.The first procedure one has to do before transfer is done is to make sure if the transferee has a title to the land and this is always done orally. This is the act of the transferor making sure the transferee has title to the property and the transferee has to show his or her certificate of occupancy to the transferor so as he can be sure of the title.

iv. This is conducted at registrar of Titles in the land registry offices as per section 3(2) of the Land registration Act. States that The Registrar shall maintain in the land registry a land register for the registration of the title to land in Tanzania and the recording of dispositions, transmissions and incumbrance of and over registered land.

v. The transferee shall write a letter to the registrar applying for an official search of the property namely ‘Application for an Official Search” and incase it turns out that there are encumbrances should the redemption statement from the transferor and also the discharge of mortgage from the transferor and incase a part of the said property will be provided with a release form of part of the mortgage land.

vi. Whereby a transferee agrees to pay for a mortgage he should then have to obtain a valuation report for transfer of property which is based in the Ministry of Lands and should, ideally check and approved by the Chief Valuer.

2.. The requirement of approval.i. A disposition of Right of Occupancy shall not be operative unless its in writing whether Short term or Long Term provided under Regulation 3 (3) (a) and (c) of the Land Regulations which states different types of Disposition such as by way of mortgage, agift, settlement, deed of partition, or sale in execution of an order of a court.ii. A non-native shall not have right to occupancy unless a native will do so in his favour and for avoidance of doubt a transfer by a native in favour of a non native requires approval of both the Land Acts and the Land regulations in the matter of practise the consent must be given by Land Officer(s) where the consent is not given the agreement is said to be non operative. This does not mean the contract is void and unenforceable though the contract can be valid but unenforceable.

3. Stamp duty.

i.In the Deed of Transfer of Right of Occupancy it must be accompanied with stamp duty, under section 5(1) of the Stamp Duty Act every instrument executed in Tanganyika or executed outside Tanganyika shall be chargeable with the amount specified or calculated in that manner.

ii. No instrument chargeable with stamp duty shall be admitted in evidence, shall be acted upon registered or authenticated by any person or by any public officer, unless such instrument is dully stamped, and no disposition unless registered shall be effectual to transfer any estate in any registered land.

iii. Considering provisions in the Land Act of 1999, the Disposition as provided under Section 2 of that Act includes ‘any transfer” but under section36 (2) states that a disposition of Right of occupancy shall not require the consent of the Commissioner or an authorized officer but the intending transferor shall send a notification in the prescribed form to the Commissioner together payments of all dues prescribed in connection with that disposition in order to acquire approval from Land Commissioner as a delegated power from the President.

iv. There are Implied Covenants that are known by law between the transferor and transferee incase the transferor or transferee breaches the covenant they will be liable in one way or the other.

v. [b]Capital Gain Taxi. This is the difference between the sale price and the cost improvement on the property or the improvements the transfer or purchased there on. A Tax Clearance Certificate will be issued upon Discharge of Capital Gains Tax Liability since interest held can not be transferred and it will be produced to the Registrar of Titles upon issued from the Commissioner of Income Tax.

ii. The Commissioner of Income tax shall publish in the Gazette or local circulating newspapers a list of persons who have been convicted under the act of any offence such as fraudulent returns, incorrect returns or obstructing an officer in the performance of his work. Which will also be known as ‘parade of shame?’

iii. Value Added Tax; Any taxable person who expect tax exceeds of more than TShs.20,000,000 over twelve months period shall make application in the prescribed form for registration within 30 days and the Commissioner for Value Added Tax will issue a Certificate Of Registration upon that person.iv. Land Rent; a certificate of Approval will be issued by the Commissioner for land Rent signifying his approval for disposition and whereas the Chief Account will signify payment of land rent quoting relevant exchequer receipts by letter.v. License to hold land by Body Corporate; Any body which is incorporated outside Tanganyika and which does not hold a Certificate of Compliance issued by the Registrar of Companies in Tanganyika can only hold a Right of Occupancy after it obtains a License to hold land by body corporate.Incase a person holds a transferee body corporate should process the license and the approval mentioned above.

vi. Registration.

i. A complete registration has to have a deed of transfer as approved and Certificate of Occupancy. Though the registrar may deny registration if the said property has any encumbrances. The transferee should make sure that all documents evidencing the transfer are executed by all parties. Though a person is a holder of two or more contagious Rights of Occupancy could be combined by cancelling the folios of the land register thereto thus preparing a new folio in respect of the land combined likewise with division of land.

ii. No transfer of land shall be registered unless executed by all persons who are parties though the registrar may dispense with the transferee for a good cause with attention for the payment of registration fees which will trigger other levies that are search fee, consent fee, stamp duty, capital gains tax, value added tax and land rent.

iii. A transfer of right of occupancy may be in consideration of natural love or affection as a gift but the point to not here is even if the transfer is inform of a gift in order for it to be valid the documents must be in writing and have to be registered under the registration of document ordinance. If they will not then meet the required above the gift will be of no use that is in operative.Hapo nimemaliza kila kitu if you have anything to ask dont hesitate to ask. Everything is within the law