SYNOPTIC HISTORY OF ENGLISH LAND

LAW
English law is predicated upon two foundational principles namely:
1. Tenure: land tenure is the legal regime in which land is owned by an individual. It is
concerned with who is said to "hold" the land. It determines who can use land and under
what conditions.
2. Estate: determines how long the land is held.

The development of these twin principles dates back to the creation of the English Monarchy,
following the Norman Conquest of 1066. The evolution of this two pronged concept of
English land law encapsulates the basic philosophy that "all land was vested in the English
Monarchy following the Norman Conquest." In AD 1066, William The Conqueror formerly
known as the Duke of Normandy became Overlord of all English land by right of conquest.
In England, all land is held by a lord. That is to say, land owned independently and not held
by a Lord is unknown. This became the bedrock of feudalism.

Feudalism/Feudal Society
This was a political and social structure, common during the medieval period (dark ages). It
was a pyramid system in which the ruling elite were at the top and the other people filled the
bottom. Feudalism was more generally, expressed in the doctrine "Nulle terre sans
seigneur" which is French for "no land without a Lord”.
In feudal society, life at every social level was marked by some form of some form of
bonded labour with the exception of the aristocracy or the ruling elite class. The social and
political reality in English antiquity found its most vivid expression in the system of tenure
and estate which largely inform English land law to date. The corner stone of the feudal
structure was the idea of land holding in return for service. This represented the idea of
"enfeoffment of land". That is, to give [someone] freehold property or land in exchange for
their pledged service.
It is from the concept of feudalism that the English society developed its notion of land law
and that philosophy informs the understanding of land law to this day. Especially in all
former British colonies such as Zambia. Royal land and the royal hunting forest remained
within the royal domain and was referred to as the King's land in the Doomsday Book of
AD1066. The Doomsday Book was the first census conducted in England after the Conquest
of Normandy. The concept of land holding in feudal society formed a social pyramid with the
rich few at the top(zenith) headed by the king and the rest of the common men and women
sitting at the base if the pyramid.
The reformulation of this structure from one level to the other embodied feudalism, whose
principle interlocking elements were land given by the Lord in exchange for labor or services.
This medieval economic, political and social system of land subletting or alienation from top
to down became known as subinfeudation and was the essence of feudalism in European
society. Subinfeudation however was inapplicable in the case of escheat which was possible
under a variety of situations.
Feudalism was an ecosystem founded on power and perpetual bondage or servitude with land
as its principal currency. Without land to work there would be no overlord and no bonded
laborer. Feudal England had various kinds of tenure such as:
 Knight Service;
 Grand sergeanty and;
 Socage.
The tenure varied according to the terms upon which the tenant held land from his lord. The
length of each of these different forms of tenure constituted the estate. The estate (duration)
might have been granted for life in tell or in fee simple. A fee simple estate is analogous to
absolute ownership because it is both hereditary and non-hereditary.
England gradually abolished all the feudal tenures except one - Common Socage. By 1925
only this tenure survived. This development was probably necessitated by the evolving social
moles of England which, by the Victorian Age and the era immediately before, had far
advanced beyond the feudal culture or medieval era.
The hereditary aristocracy of feudalism came to be publicly abhorred and the starter reforms
to land holding that succeeded the English civil war (1653 -1657) reflected this political
social reform. The most significant starter redevelopments in this regard came in AD 1660
and 1925. In 1660, the Tenure Abolition Act abolished grand and petty serjeanty and
knight service and in 1925, the Law of Property Act of 1922 abolished copyhold tenure.
Later the Administration of Estates Act of 1925 abolished Frankalmoign. The only
surviving tenure from feudal England today is common Socage.
NATURE & SCOPE OF LAND LAW
The Definition of Land Law
In order to define Land or Real Property law, it is useful to first distinguish it with
conveyancing, a closely related although entirely different subject. Conveyancing is the legal
process of transferring property from one owner to another.
While conveyancing relates to the accrual and transfer or disposition of estates, rights or any
interest in land, Land Law broadly deals with the rights and liabilities of land owners.
Conveyancing is essentially a subset of land law. It is narrower and more specific in scope
and concerns itself with the mechanics of how rights and interests in land are acquired, sold
or given (conveyed) to another. The broader field of Land Law on the other hand is doctrinal
and rather evaluates the very nature of the rights and duties of the landed class.
The ascription/attribution of the name real property to land as well as the legal content
thereof is a consequence of the history of the English Law. In contradistinction with personal
property, real property entitled a successful litigant to recover the land itself unlike personal
property whose loss could be remedied by an award of damages. The philosophical
foundation for this form of legal relief lay in the fact that land is inherently unique. For this
reason, the law required the actual restoration of the land to the rightful owner on the event of
loss or trespass.
As such, in defining real property law, English law follows the natural division between
immovables and movables but with one important exception, that is, in general, all interests
in land are real property except leaseholds or terms of years which are classified as
(inaudible-check audio 3:25). This peculiar exception initially arose because leases fell under
the feudal system of land holding by tenure.
Originally, leases were treated as personal business arrangements under which one party
allowed another the use of his land for rent. It is perhaps not simplistic to conclude that the
English legal history of proprietary lawsuits during antiquity held such an enduring legacy as
to forever define the philosophical content of the rights of property in land among land
owners at common law (4:10)
In Zambia, where the land tenure system is founded on leasehold tenure, the philosophical
distinction of real and personal property in English law rather engenders profound perplexity
to the untrained mind. Leases are unquestionably treated as land in every sense that freeholds
and other smaller kinds of estates are legally comprehended in English Land law. Even in
modern English Law, accommodation is now given to the fact that leases though still
"personalty" in law, equally embodied elements generic to real property. They are considered
a hybrid of both real and personal property and are now deemed Chattel's Real. 'Chattels'
indicates their personal nature. 'Real' shows their connection with the land.
According to the Jurist J.G Redal, land law ultimately concerns itself with 4 broad separate
things
1. Ownership
2. Interest in Land
3. The principle of the Land Owner's Unfettered Right to alienate land that is held in
freehold tenure
4. Conveyancing and other formal legal devices designed to secure a lawful vesting of
proprietary rights in land or its use.

The Importance of Land Law

Land Law is important for many reasons. Some of them are:
 First, there cannot be a nation without land because a nation can only be formed if it has
defined boundaries and a distinct population living within those boundaries under a
sovereign legal order.
 Secondly, in the case of private rights, individuals need land in order to have homes.
 Land law is important because it covers one of the most important aspects of ownership
rights. That is, the right to own and occupy land.

The Zambian system of Land tenure is distinct and different from the English one. Yet,
continued reference must be made (at least at the very beginning) to how English land law
developed in order to understand what land law in Zambia entails.
This is because Zambia is a former British colony which received the common law of
England. As such, in order to understand subjects such as land law, English law has to be
made reference to.
WHAT IS LAND?
Land means different things to different people i.e. lawyers and non-lawyers. While the legal
concept of land is principally concerned with the private rights and liabilities associated with
ownership and possession, that of a layman is largely territorial, concentrating on land as a
physical domain, an object defined by what the naked eye can see.

The Definition of Land

The UN Convention to combat desertification in those countries that experience serious
droughts and/or desertification in Africa UNCCD defines land as;
"The territorial bio productive system that comprises soil, vegetation, other biota and the
ecological and hydrological processes that operate within the ecological system."
~Article 1(e) UNCCD
This aspect (definition) largely informs the legal doctrine of possession of land in land law.
However, possession is only one aspect of the law's treatment of land as a physical object of
ownership. The legal conception of land is not confined to its physical constitution or terra
fema. It also extends to all intangible rights appurtenant to an owner or third party user of
land. In this regard, non-owners may yet hold an interest that encumbers how the legal owner
can in fact exercise his legal dominion as land owner. Examples of such smaller estates in
land include, leases, mortgages, easements, profits and in fee simple tenure such as in
England, all other comparatively smaller estates such as life estate and fee tale.

Land comprises of anything above the surface [subject to statutory limitation], on the surface,
below the surface and the tangible as well as intangible real property [e.g. buildings and trees,
easements and profits].

At common law, land embodies fixtures or objects which, though extraneous, qualify to be
treated as indistinguishable from the land itself either due to their intimate degree of
annexation or the purpose for which they have been annexed to the land. The most common
fixture in law is a house. It is regarded as part of the land because it is built in the land. The
house and the land are one. Anything which is an integral part of the house e.g. - lead pipes is
a fixture will be attached to or will form part of the land. This was the principle in the case of
Billing v Pill (1953) wherein, Lord Godard CJ of England stated the preceding.
In Namungandu v Lusaka City Council (1978) ZR 358, the High Court Commissioner
Matthew Ngulube (as he then was) held that the maxim "anything annexed to the land
becomes part and pacel to the land" (ADD LATIN) was an integral principle of Zambian
land law. Furthermore, in Elitestone Ltd v Morris (1997) 1 WLR 687, decided by the English
House of Lords, Lord Lloyd adopted a threefold test for determining what extraneous object
became part and parcel of the land in a tenancy. Avoiding the traditional twofold distinction
between Chattels on the one hand and fixtures on the other, the court held instead that "an
object which is brought into land maybe classified as one of three broad heads. It may be a
chattel, a fixture or part and parcel of the land itself. Whether an object or a fixture is part
and parcel of the land depends on the circumstances of each case but mainly on two factors,
these are;
(a)the degree of annexation to the land and;
(b) the object or purpose of the annexation.
This means that, in certain contexts, the fact of residence might not invariably render a house
part and parcel of the land. Houses constructed from timber instead of cement blocks and
concrete might not be fastened to the soil. Does that mean they qualify to be chattel? In Reid
v Smith (1905) 3 CLR 656, the Australian High Court held that;
"...in such a case, the absence of any attachment to the soil would not prevent the house
forming part of the land because the purpose of annexation instead of the degree [to which
the house is annexed to the land] invariably entails that a house is [should be treated as]
part and parcel of the land."

This view was strongly influenced by two decisions from the USA:
 Snedeker v Warring (1854) 12 NY 170 p175 and
 Goff v O'Connor (1855) 16 ILL 421 esp 423
Both cases upheld/followed the view that a house ought to naturally be regarded as part and
parcel of the land. The reason for this position, as provided in the two cases, is that the
purpose for which a house is built is always that is must be occupied as a dwelling place and
therefore the view of the law in these decisions is that the very fact that a house is designed to
be a dwelling place means that it must be treated always as part and parcel of the land.

Particularly in Goff v O'Connor, the courts stated that:

"houses in common internment of the law are not fixtures to the land but rather part and
parcel of the land. In the case of houses, this does not depend on the particular mode of
attachment or the mode in which the house is fixed to the land. Rather it depends upon the
uses and the purposes for which the they [the houses] were erected and designed. The fact
that the house is constructed to be a dwelling place and not the degree to which it is fixed
on to the land is sufficient to treat the house as part and parcel of the land".
INFLUENCE OF ENGLISH LAND LAW
The Norman Conquest of 1066 still holds considerable sway far beyond English life. Not
only has it defined English Land law for generations but also significantly shaped nations or
societies that in some form or another have historical ties with the English legal system.
Because of England's place in history as a nation whose political and economic influence
extended across a large segment of the modern world at some point, the fundamental English
doctrines of tenure and estate influence many countries that were formally colonized by
Britain.
This is the singular basis of the historical interest in English land law but endures in former
British colonies such as Zambia. Although the English land tenure system is no longer
mirrored in Zambia at present, the doctrines of tenure and estate still inform the current
conception of the land tenure system in Zambia. In fact, so persuasive is the influence of
English common law that no meaningful study of the land tenure system in Zambia is
possible without first undertaking a historical study of English land law. Without such it
would be impossible to study the technical nature of land law and its inherent affiliation to
technical concepts that are strongly rooted in the history of English land law and English
society as a whole. It is in this context that any meaningful study of land law in Zambia must
have its genesis in the study of English land law.

THE ENGLISH PROPERTY REFORMS OF 1925

The Law of Property Act of 1922 took effect in the beginning of 1926 in England. Hence
forth, only freehold tenure is possible in England. These changes are consequential/extremely
important due to the abolition of most incidents of tenure that were inherently feudal. Also,
The Administration of Estates Act of 1925, requires that cases of 'escheat' due to intestacy
accrue to the crown.
The Forfeiture Act of 1870 abolished the automatic forfeiture of goods and land as a
punishment for treason or a felony. Pursuant to s.31 of the Forfeiture Act of 1870), "No
conviction for any treason or a felony (felo de se) shall cause any corruption of land or any
forfeiture or escheat". An analysis of this statute will reveal that the motivation for this
abolition was for moral reasons (sins of the father-injustice) and economic reasons (there
were economic implications of disallowing customers and their descendants to have land).
Escheat
Escheat is founded in the principle that all land is held by the king, that is, that all land in
England belongs to the monarchy. This claim of title is historical and had been enshrined in
English law. The reason for this is that after the conquest of Normandy (1066), William I
claimed all the land in England by right of conquest. However, he had to govern the nation
and therefore distributed land to the chief men of the state i.e. the barons who fought beside
him and those who surrendered willingly without resistance. These chief tenants, in the
census of 1086 (when the doomsday book was compiled), numbered around 1,500. They held
land directly from the crown and in turn gave it out to tenants who also gave some of it out to
other tenants until a pyramid was formed with the king sitting at the zenith.

The implication of this system of land alienation/grant entailed that whenever there was a
failure to continue holding the land due to say, lack of an heir, the land would have to revert
to the king as legal owner of all land in England. This system of land reversion is what is
known as 'escheat'. It would also occur when a tenant died intestate and had no
descendants/an heir who could hold that land. This was to avoid a situation where land is
without a property owner i.e bona vacantia (vacant land).
One of the other grounds that could warrant escheat was a conviction for treason or a felony.
In feudal England, if someone is convicted of a felony against the crown, he/she had to lose
their land. This was because the system of tenure is one which was based on a whole bond of
trust. As such, when an Englishman was convicted, they were said to have violated the oath
of allegiance to the state and the penalty for that was the forfeiture of land by the felon to the
king. Additionally, where one was convicted of high treason which was (and still in some
states is) punishable by death, the law required that the tenant be dispossessed of the land and
surrender it to the crown. This was because high treason represented a breach of the king's
trust. High treason was very vilified by the common law. In some instances, even the
descendants of a convict of high treason would hold no land. This was known as corruption
of blood.
TENURE AND ESTATE
There are two basic doctrines of English Land Law. These are the doctrines of tenure and
estate. These two basic doctrines of English land law are crucial to the understanding of our
land law in Zambia. This is because our land law concepts especially under statutory tenure
and indeed a number of statutes are mainly derived from or have their textual root in the
English (land) law and/or statutes. The colonial administration brought in English law in the
then Northern Rhodesia territory following the advent of colonialism.

LAND TENURE
The word tenure, from the Latin word tenere (to hold) implies that land is ‘held’ under
certain conditions. The doctrine of tenure is native to English law and owes its origin to the
establishment of feudal England following the Norman Conquest of 1066. It is the basis of
conveyance of all land in English law.
Tenure is inseparable from the constitution of the state and the state’s power to regulate rights
of property concerning land. This must be due to historical and constitutional reasons. This
system under gates the legal and political theory that all land within the British realm is either
directly or indirectly held by the monarchy. The doctrine of tenure is therefore the foundation
of the English state to the extent that it entails land holding in return for services.
This doctrine is common in most former British colonies. Australia, for example, is one
common law jurisdiction that replicated freehold and leasehold tenures. The annexation of
Australia by the British crown introduced, into Australian law, the inherently English
common law doctrine that crown dominion over all land in Australia cannot be negated.
Formulated otherwise, all Australian land is held subject to the British monarchy. That is the
case in New Zealand and Canada as well.
In most of commonwealth Africa, that too was the case until the countries gained
independence from British colonial rule. Enforcement of the doctrine of tenure essentially
affirms the paramount legal doctrine of sovereignty or statehood for no state can conceivably
exist without any territorial dominion. This principle not only has its foundation in antiquity
but notably resonates with the very political idea of the kingdoms of antiquity that exercised
sovereignty by ruling over a defined land-mass. In the case of Australia, the introduction of
the English common law also introduced, into that country, the doctrine of tenure and estate.
Accordingly, Steven CJ (Aus) in AG v Brown (1847), held that
"The worst lands of this colony are and ever have been from the time of its first settlement
in 1788 in the crown... (06:00) GO LISTEN.

In relation to land law, the English common law is markedly predicated on the doctrine that
the crown's prerogative to govern necessarily vests it with unreserved dominion over all
territory within the English realm. This was also the theory of land law in Zambia before and
since independence until the land reforms of 1975. Until June 30 1975, land could be owned
absolutely as freehold or in any other manner implying absolute rights in perpetuity. Leases
for any term of years during that time could be granted to a tenant of the state beyond 100
years. Before June 30th 1975, one could have a lease extending up to even 10,000 years
which is the case in England. This is because Zambia applied the freehold tenure system of
land (which exists in England and has existed since 1066). Notwithstanding the reforms of
1975 in Zambia, land is still held as a lease from the state and the state takes the place of an
English Feudal Lord when compared to English society during the feudal era.

According to the Lands Act of XXXX, all land in Zambia is vested in the office of the
President, not in the president as an individual but the presidency as an institution. In England
however, all land is vested not in the British state but in the crown (the royal family). Zambia
is a republic which doesn't have a hereditary system of succession. As such, all land belongs
to the state and is vested in the presidency on behalf of the republic of Zambia.

The land tenure reforms of 1975 in Zambia were necessitated by the desire to abolish
freehold tenure. Freehold tenure was established when Britain colonized Zambia and
introduced the common law of England as the basic legal system. Freeholds were endeared to
the white settlers because they are a more secure form of land ownership and practically
correspond to absolute ownership. The appeal of freehold tenure was that it included the fee
simple estate.

The Fee Simple Estate

This is the largest or best estate that could possibly be owned in land in English law. Fee
means that it is an estate capable of being inherited as long as there is somebody to inherit it.
This means it can go on forever and ever as long as the person entitled for the time being has
heirs at his death. Simple means that there are no restrictions as to who can inherit the estate.
The fee simple is analogous to absolute ownership. This means there are no conditions
attached to the holding of the estate. The owner of a fee simple estate had, at common law,
unfettered power of alienation inter vivos or by will.
Since 1306, the fee simple estate would terminate only if the tenant for the time being died,
leaving no heir. Here, it would escheat to his lord. Hitherto/before that, a fee simple would
terminate if the original tenant dies w/out leaving any descendants or collateral blood
relations e.g. brothers, cousins, even if before his death, the land had been conveyed to
another tenant who was still alive. The freehold tenure system appealed to the English settlers
in Northern Rhodesia due to its longevity and its security of tenure. The estate of freehold
tenure was not time bound but uncertain. A freehold tenant simply required an heir to
effectively hold the land in perpetuity. Besides the fee simple, are the other two freehold
estates namely: Fee tail estate and Life estate.

Fee tail estate

A fee tail estate continued for as long as the original tenant or any of his leaning descendants
lived. However, this type of freehold estate, unlike the fee simple, had a restriction as to who
can inherit the property. For example, there could be a restriction that only male heirs can
inherit the property. What makes this a freehold estate is that the duration for which the
tenant holds the property is unknown. The fee tail estate existed in Zambia up to 1944, when
it was abolished by virtue of an amendment to section 31 of the Lands and Deeds
Ordinance (which at independence became an Act). Section 31 (2) of the Lands and Deeds
Registry Act now provides that:
From the 1st May, 1944, an estate tail shall cease to exist in Zambia for all purposes, and all
land held on an estate tail shall become land held in fee simple by the tenant in tail, and all
words in any document after such date purporting to create an estate tail shall be deemed to
create an estate in fee simple.

Life estate
A life estate or a life interest is an estate which, as the name implies, lasts for life only. The
estate subsisted as long as the grantee lived. A life estate is not an estate of inheritance. On
the death of the tenant the estate reverted to the overlord.

If the freehold tenure had endured beyond 1975 when Dr. Kaunda initiated the land reforms,
the English settlers' descendants should, in theory, still own the land of their forefathers to
this day. As the aristocrats of Northern Rhodesia, the settlers acquired the country's prime
land which at the time was considered crown dominion. This economic inequality at the time
was bitterly resented by Zambia's founding fathers because of the indeterminate tenure vested
by freehold estates. The question of the native’s title to land in both British protectorates and
colonies was notably considered in a succession if landmark cases stated below:

1. Re Southern Rhodesia (1919) AC 211 - in this case, the Privy Council held that the
legal dominion of all colonial territory vested in the British crown. The dominion or
estate in or title to the colonies belonged to the British crown by right of conquest.

2. Sobhuza v Miller - In this case, the right of the British crown to expropriate native
territory in Swaziland was ruled unimpeachable or beyond challenge in any British
court due to the Constitutional law doctrine of parliamentary sovereignty. In this case,
the king of Swaziland appealed to the to the Privy council to challenge certain orders
in Council that had taken land which was subject to a concession that entitled that
land to the natives of Swaziland. The Privy council however dismissed this case and
held that all colonial territories and protectorates were subject to British dominion and
that the crown was vested with power over all such land by right of conquest.

The implication of such English colonial judgements which made impeachable colonial land
dealings had far reaching economic consequences for newly emerging independent African
states such as Zambia. Maintenance the status quo of the colonial land policies legally
entailed a perpetuation of the economic inequalities of the colonial era into the present day.
This fact, in Kelvin Hangandu's opinion, was the real causal root of the UNIP's resentment
of the colonial era's land tenure system which enshrined the freehold land tenure system.
Even though the statements given publicly and formally were that Zambia was a socialist
country which needed to follow the traditional mode of land ownership in which land was
owned communally, it appears (using the experience in Zimbabwe especially after the land
wrangles) that the real fear of Zambia's nationalist leaders was that if the freehold tenure had
continued to this day, then the best land in Zambia (as is the case in Zimbabwe and elsewhere
where the system still applies) would have been in the hands of the descendants of the white
settlers.
This economic argument should be/is the most likely reason why in 1975, at the Water Shed
Speech, Dr. Kaunda abolished the freehold tenure system in Zambia and replaced it with the
leasehold tenure which is the governing land tenure system to this day.

In 1975 president Kaunda put forward the theoretical justification for substituting freehold
tenure with leasehold tenure. His argument was that:
“land obviously must remain the property of the state today. This, in no way, departs from all
heritage. Land was never bought. It came to belong to individuals through usage and the
passing of time. Even then, the chief and elders had overall control although this was done
on behalf of all the people,” said Kaunda.
This political philosophy underpinned the land reforms of 1975 and has not be departed from
to date even though the economic system changed in 1981. Land is the property of the state
and the Presidency is the institution for which land is held in trust on behalf of the people of
Zambia.
The Land tenure system in Zambia
The Land tenure system is anchored on the political theory that land cannot be owned
absolutely but the state instead is the owner of all land and that the citizens of Zambia can
only hold statutory leaseholds. The president's right to hold all land in Zambia in trust
subjects his power to deal with the land to the principles of the law of trust in the law of
equity. By reason thereof he cannot exercise his executive prerogatives to inexplicably grant
large gifts or any kind of gift of land to his political party as that would be deemed improper
exercise of the power and any such gift will be presumed to be blemished by undue influence
and liable to be vitiated and the donation will be retrieved by either court order or
compulsory acquisition of land at the option of the state without any compensation at all on
the authority of Zambia National Holdings ltd and Another v The Attorney General
(1993) ZR 115 [Esp. p121).
Gifts or grants of the sort will be recoverable on behalf of the republic independently of the
principle of assessment enjoined by the Lands Acquisition Act. The fiduciary character of
the presidential power in relation to land and land allocation in general emanate from the
principle that any political party forming the government and having the control of public
funds will consider itself as doing so, in trust, for the people in this country and for the
country's common advancement and benefit according to the preceding case.
All Zambian land has been vested in the President since the enactment of the Land
Conversion of Titles Act on 1st July 1975. On that date, freehold tenure was outlawed and
immediately abolished. Henceforth, absolute ownership of Zambian land as freehold or fee
simple or in any other manner implies absolute right in perpetuity which had been legally
forbidden. Furthermore, only statutory leaseholds are attainable since then because all
leaseholds that were granted from a fee simple or other form of freehold estates have been
outlawed since 1st July 1975.
Section 6 of the repealed Land Conversion of Titles Act transformed all freehold and
leasehold tenure into 100 - year tenure statutory leaseholds, held of the President, at such rent
and on such terms & conditions and with such covenant as may be prescribed without any
compensation whatsoever pursuant to s.19 of the Land Conversion of Titles Act.
This new form of statutory leasehold tenure was renewable by operation of law for a further
100 years unless the leasee was in default of the conditions of the statutory leasehold tenure.
In such an instance, the lease was liable to forfeiture subject to compensation for the
unexhausted improvements. Such improvements included anything resulting from the
expenditure of capital or labor and included carrying out any building, engineering or any
other operation in, on, over or under the land or the making of any material change to the use
of any building or land.
All virgin land in Zambia lost value at the enactment of the Land Conversion of Titles Act.
The era of humanist, political and economic ideology that "bare land per se was worthless"
was abolished with the enactment of the Lands Act of 1991 but the statutory leasehold land
tenure is still existent as no freehold tenure is lawful in Zambia

Both Zambians and non-Zambians could generally not acquire any interest in land in any
form following the enactment of the Land Conversion of Titles Act No. 15 of 1985. S. 13A
(1) explicitly stipulated that "No land in Zambia shall, as from 1st April 1985, be granted,
alienated or leased to a non-Zambian provided that nothing herein shall be so construed as to
effect any interest or right acquired by any person prior to that date." The Zambian Land
tenure system during the period between July 1st 1975 and 1994 [at the latest] enshrined the
UNIP era conception of communism.
Generally, the reigning political ideology until the proposed land reforms of 1991, were
economically illiberal. The paternalistic oversight over the entire economy by the state
entailed that land, as an economic asset, was a property of the state at its disposal. In this
light, land wasn't relevant as a natural asset to the private enterprise of Zambian citizens. This
ideology was repudiated by the political reforms of 1991 that ushered in the political and
economic liberalization of the third republic under which we still live.
The first work of the MMD government was to redefine the conception of land and to
reinstall land as a central asset of a liberal economy. Significantly however, in the context of
land tenure, the 1990 land reforms did nothing to revoke the central principles of Zambian
land tenure as one fundamentally based on a statutory leasehold with absolutely no
accommodation for freehold tenure or estate. Therefore, Zambia's land tenure system is
markedly different from English Law. Firstly, Zambia has no room for absolute ownership of
land within the legal contemplation of the common law of England. Second and finally, there
is no unfettered liberty for every person to acquire interests and rights in land because
Zambia's land tenure law severely restricts the right of non-Zambians to hold or accrue
interests in land of any form.
TENURE IN ENGLISH LAND LAW
Tenure defines the legal relationship between the Landlord and tenant in the context of the
conditions upon which land is held of a lord. It has been defined as the bundle of rights and
responsibilities under which land is held, used, transferred and succeeded. As such, it is
prescriptive of a land owner's rights and responsibilities in connection with his land holding.
The English doctrine of tenure is a legacy of feudalism. With the enactment of the statute
Quia emptores 1290, no new tenures were permitted in England. The statute ensures that all
land held by a subject is held in tenure of the crown either directly or indirectly. This statute
effectively nullified the process of subinfeudation and this successively eradicated the feudal
pyramid. With the eradication of subinfeudation, all land in England came to be directly held
by the crown. The Tenures Abolition Act of 1660 converted all tenures into Free and
Common Socage. As of the beginning of 1926, all land has been held in Freehold, (the
modern name for free and common socage). The effects of abolishing further tenures
ultimately restrained the incidents of tenure. As of today, only escheat and forfeiture
survive as the prime examples of the incidents of tenure.
However, escheat for felony and the crown's prerogative right for forfeiture for high treason
were both outlawed by the Forfeiture Act of 1870. But this Act left intact the principle of
escheat in other cases. As of today, there is only one (1) feudal tenure left namely Common
Socage which is now called Freehold. Feudal incidents have, in practice, disappeared except
in some very limited circumstances. Megarry and Wade hold that
"despite the sweeping changes made by statute, the fundamental principle of the law of
ownership of land remain the same as before the legislation of 1925. Land is still the object
of feudal tenure in English Law. The sovereign remains paramount of all land within the
realm, every parcel of land is still held of some Lord and the greatest interest which any
subject can have in land is still an estate in fee simple and no more."
The rules incidental to the doctrine of tenure have their relevance in leaseholds instead of
freeholds today. This is due to the fact that a tenant in fee simple is rather regarded as the
absolute owner of the land in practice in English law. As such, most incidents of tenure have
been rendered redundant. Only the principal of escheat and the doctrine of forfeiture endure
to date with respect to the doctrine of tenure. In practice, the rest of the incidents of tenure are
practically redundant. By reason thereof, the doctrine of estate is the foundation of modern
English land law. Put simply, between the two paramount doctrines of tenure and estate, the
latter is of concern today.
Escheat
The underlying philosophical foundation of feudal land tenure is that all land is held of some
lord. The corollary/repercussion/result of this foundational feudal principle is that under
certain conditions, the crown can recover the land via reversion as lord-paramount over all
English land. The said conditions are:
(1) In the event of the tenant’s death [intestate] without heirs or
(2) In the event of the tenant’s conviction for a felony, the land can historically escheat. In the
case of felony, the land would lose its inheritability and escheat to the lord who would then
hold the land subject to the crown's right to exploit the felon's land for a year and a day.

The administration of The Estates Act of 1925 abolished the first kind of escheat (escheat
after death). Subsequently, the crown's right to exploit the felon's land could be commuted to
a money payment or a service rendered to the crown by the lord. Historically, a conviction
for High Treason corrupted the bloodline of the felon's lineage by attainder and caused a
direct escheat of his land to the crown. The Forfeitre Act of 1870 abolished escheat of lands
for felony. But escheat itself is irrevocable as a principle of English Land law due to its
inseparability to the feudal doctrine of tenure. Its purpose was to prevent English land from
becoming bona vacantia.
In Sita Ram Jaiswal and Others v The Estate of Uta Pradesh and Others (2016), the
Indian Supreme Court noted that the right of the crown to take property by escheat or as bona
vacantia was recognized by English Common Law. Escheat property was the Lord's right of
re-entry on real property held by a tenant dying intestate without lawful heirs. Escheat takes
place automatically and the freehold is extinguished.

The Remedy of Forfeiture

The English Land Law remedy of forfeiture has its roots in the feudal doctrine of tenure
developed following the Norman Conquest of AD 1066. The remedy is a corollary/result of
the feudal doctrine that all English land is held by the crown. As such, the tenant's right to
hold the land is in consideration of his faithful allegiance to the crown as a law abiding
subject. On this basis, it was the case, historically, that any felonious act of the subject
connoted betrayal of his oath of allegiance and warranted forfeiture of his lands. This form or
forfeiture is termed "inrem forfeiture".
For example, a classic legal treatise/article attributed to Glanville affirmed that from traitors
and felons, all chattels to the king and all lands to the lord after the king's year and a day
could be exerted. Both the Magna Carta (the great Carter) of 1215 and the Prerogativa Regis
recognized the crown's prerogative of forfeiture. Forfeiture mainly resulted from conviction
for felonies and the doctrine of corruption and attainder of blood. Criminal forfeiture in
combination with corruption of blood was referred to as forfeiture of estate or common law
forfeiture because of its deprivation of property and all property rights.
Corruption of blood meant that a convicted criminal's bloodline for generations to come was
corrupted and could never inherit land and any other heritage from his ancestor nor transmit
them by descent to any heir nor retain property he already had. Forfeiture and corruption of
blood in English Law was only possible following both the conviction by a jury and
attainder. Attainder was a judicial declaration of a person's civil death and corruption of
blood occurred as a consequence of a sentence of death for high treason or a felony. The
American case of Calero - Toledo v Pearson Yatcht Leasing Company (1974) effectively
holds that forfeiture has not been abolished or antiquated due to its feudal legacy.

The status Quo of Tenures Incidents Today

➢ Socage, formerly known as Freehold Tenure, is the vestigial/remaining tenure of
modern English Land Law.
➢ Grand and petty serjeanty and knight service were abolished by the Tenures
Abolition Act of 1660.
➢ Copyhold Tenure and Francolmeon were then suppressed successively by the
respective enactment of the Law of Property Act of 1922 and The Administration
of Estates Act of 1925 in England.
This statutory development has effectively swept away the most vivid feudal incidence of
tenure. The changing social moles of modernity rendered outdated the most feudal of the
incidents of tenure and thus enjoined the abolition as old fashioned practices that belonged to
a less civilized past.
Tenants in Chief in English land law lost their right to subinfeudate with the enactment of
Quia Emptores of 1290. With the abolition of other feudal tenures, only the incidents Native
to Common Socage survived. But of these, most are said to be novelties (newcomers) save
for escheat and forfeiture. The remedy of forfeiture is only exercisable by the crown because
it is now impossible to prove the existence of a mesne (intermediary) Lord according to the
case of Re Lowe's Will Trust (1973).
Between these two incidents, forfeiture is the notable one because of the popularity of leases
today that, as a rule, prescribe forfeiture as the signal remedy for the most egregious(serious)
case of default by the tenant. Though most incidents of tenure have practically disappeared, it
is still lawful for the crown in English Law to reserve those that still survive. See AG for
Alberta v Huggard Assets Ltd (1953).

TAKEAWAYS FROM CLASS

 The terms upon which a tenant holds land is what is known as tenure.
 It has also been defined as the bundle of rights and responsibilities under which land is
held
 Put simply, it is the legal system specifying the conditions under which land is owned in a
country.
 In Zambia, these conditions were changed on July 1 1975
 The English doctrine of tenure is a legacy of feudalism. The reason for this is historical.
All land in England is owned by the crown (after the Norman conquest). The English
doctrine of tenure results from this political system (feudalism)
 In the year 1290, the statute quia emptores, stipulated that from that year, no new tenures
were permitted/ could be created in England. (In order to safeguard the crown's interest in
land)
 This statute ensured that all land held by a subject was held in tenure of the crown either
directly or indirectly (through a landlord).
 This statute effectively abolished the process of subinfeudation (transfer of land through
tenure) and therefore successfully eradicated the feudalism upon which the English
society was built.
 In the year 1660, the Tenures Abolition Act converted all tenures in England into free
and common socage (known today as freehold tenure).
 As of today, only escheat and forfeiture survive as the most important examples of...
 However, escheat for felony and the crown's rights of forfeiture for high treason were
abolished by the Forfeiture Act of 1870. This act left intact the principal of escheat in
other instances
 The effect of this abolition prevented new tenures from being created.
 As of today, only escheat and forfeiture survive as prime examples of tenures that exist.
OWNERSHIP OF LAND AND ITS
LIMITATIONS
In legal contemplation, ownership implies the existence of an owner and the object capable
of being owned. Whether it is animate or inanimate. In the English law of larceny or theft, the
owner of the thing stolen has no intention to part with his property therein the person taking
it. In false pretenses, the owner does intend to part with his property in the form of money or
chattel but it is obtained from him by fraud. See R v Chungu 1954.
In its simplest signification, ownership is the property in something or in an object.
Therefore, it is the want or presence or property or title in an object or thing that creates
ownership of something. Ownership and possession are two opposed legal concepts. Passing
off possession to another does not necessarily involve repudiation of property therein.
Ownership implies an unqualified right to pass or dispose of one's property in the object
owned to another person. Both theft and larceny extensively deal with the principles relevant
to the legal conception of property in English law. Therefore, an elementary study of these
principles can usefully explain, in a basic sense, the concept of ownership as we understand it
in law.
Property in land significantly differs from chattel or personal property because of its ability to
accommodate various limited interests at the same time. That is to say that while the property
owner has the prima right in land, other third party lesser interests are capable of co-existing
at the same time. In the case of leasehold tenure, the concept of land ownership is
underpinned by the principles of;
1. Absolute Legal ownership of all land in the state.
2. A subordinate limited right of ownership in the holder of a certificate of title for not
longer than 99 years.
The same principle of mutuality or proprietary interest of land ownership exists in English
law as well since there is no concept of allodial ownership. Allodial owners are not subject to
any restrictions on their use rights or any obligations except for those imposed by the law.
Both English and Zambian land is owned subject to the principle that there must be a superior
landlord to all land that is owned. This is contradistinguished from personal property or the
ownership of chattel that generally vests absolute title or property in the owner.
The allodial character or property in land expires with the division of property in the land
itself or in a chattel. In US law, for example, allodial title has been defined as one that is free
of a supervening superior third party interest. See Stewart v Chicago Title Insurance
Corporation (1987)

HOW THE LAW LIMITS THE RIGHTS OF LAND OWNERS

This is done in a variety of ways, primarily through the common law of trespass and nuisance
and by statutory interventions such as the law of town and country planning which allows
development of land to be done in strict accordance with the limitations placed by law.

1.) Trespass
In the case of trespass and nuisance, the question which normally arises is how far into the
atmosphere can a land owner claim rights? This question was considered in a very notable
case called Bernstein and Skyviews General Limited wherein the defendant used an over
flying drone in order to obtain aerial photographs of Lord Bernstein's country residence. Lord
Bernstein alleged that in so doing, the defendant was trespassing in his airspace and invading
his right to privacy. He then sued for damages. Griffith J was not prepared to hold that the
invasion of airspace by an over flying aircraft at the height complained of represented
trespass. He referred to previous authorities, particularly to the case of Kelsen v Emperior
Tobbaco Company. He opined that;
"I do not wish to cast any doubt upon the correctness of the decision upon its own
particular facts. It may be a sound and practical rule to regard any incursion into the
airspace at a height which may interfere with the ordinary user of the land as a trespass
rather than a nuisance. Adjoining owners then know where they stand. They have no right
to erect structures overhanging or passing over their neighbor's land and there is no room
for argument whether they are thereby causing damage or annoyance to their neighbours
about which there may be much room for argument and uncertainty."
Griffiths J then continued to say,
"the problem is to balance the rights of an owner to enjoy the use of his land against the
rights of the general public to take advantage of all that science now offers in the use of
airspace. This balance is, in my judgement, best struck in our present society by restricting
the rights of an owner in the air space above his land to such height as is necessary for the
ordinary use and enjoyment of his land and the structures upon it and declaring that above
that height, he has no greater rights in the airspace than any other member of the public."
This decision was followed in another case called Anchor Brew House Developments v
Brkly House (Doclands Development) (1987).

2.) Nuisance
The tort of nuisance limits the use of land by land owners. In the notable case of Hunter v
Canary Wharf (1997), a question arose as to whether 690 inhabitants of properties in the
isle of dogs in east hallow London could sue in respect of the interruption of television
reception and the eruption of dust owing to the existence and construction of the skyscraper
known as the Canary Wharf.
The court of appeal held that while mere residents could sue even if they did not have
exclusive possession of the affected land, no claim lay in the interest of television signals.
The House of Lords was of a different opinion on the first of the points stated above and the
judgement of Lord Golff is particularly instructive. He said,
" on the authorities as they stand, an action in private nuisance will only lie at the suit of a
person who has a right to the land affected. Ordinarily, such a person can only sue if he
has the right to exclusive possession of the land such as a freeholder or a tenant in
possession or even a licensee with exclusive possession. Exceptionally, this category may
include a person in actual possession who has no right to be there and in any event a
revisioner can sue in so far as his revisionary interest is affected but a mere licensee on the
land has no right to sue".

3.) The Rule in Rylands v Fletcher

A further limitation of land ownership is the famous rule in Rylands v Fletcher(1868). In
this case, the rule was laid down by Blackburn J before the case went on appeal to the HOL.
The judge said,
"we think that the rule of law is that a person who, for his own purposes, brings on his
land and collects and keeps there anything likely to do mischief if it escapes, he must keep
it in at his peril. If he does not do so, he is prima facie answerable for all the damage
which is the natural consequence of its escape. He can only excuse himself by showing
that the escape was owing to the plaintiff's default or perhaps that the escape was the
consequence of a vis-major/force majeure, that is, an act of God."
4.) The Rule on Negligence
This is another Tort that is paramount to land use as set forth in the landmark case of
Donoghue v Stevenson (1932). Lord Atkin pioneered this rule by saying essentially that no
one must take any act or commit any omission which may result in injury to their neighbor.
He stated that;
"You must take reasonable care to avoid acts or omissions which you can reasonably
foresee would be likely to injure your neighbor. Who then in law is my neighbor? The
answer seems to be, persons who are so closely and directly affected by my act that I ought
reasonably to have them in contemplation as being so affected when I am directing my
mind to the acts or omissions which are called in question."
Lord Atkin further pronounced that;
“In order to establish a claim for negligence, you will need to satisfy 3 ingredients, namely;
1. There must be a duty of care
2. There must be a breach of that duty
3. There must be injury or damage flowing from that breach.”

The common law further limits the rights of property in land using the following principles:
I. Silver and Gold- All gold and silver belongs to the crown.
II. Treasure- There is no right to property in any treasure trove and by treasure trove
is made a chattel or object that; consists of gold and silver; that is hidden in or on
the land deliberately [and not merely lost]; and lastly the true owner thereof is
unknown.
III. Wildlife- Wild animals cannot form the subject matter of ownership. However, a
land owner has a qualified right to catch, kill and appropriate the animals on his
land. However, in Zambia, this right qualified by the law protecting wildlife.
Zambian criminal law punishes individuals for dealing in wildlife because wildlife
is regarded as government trophy.
IV. Water- There is a limited right to use water flowing on a land owner's parcel of
land. At common law, a land owner has no property in water which flows or
percolates through his land in a defined channel. In respect to percolating water,
the owner of land is at liberty to draw water without regard to the neighboring
owner. A riparian owner, that is, the owner of the land through which the water
flows is entitled to the flow of water through his land unaltered in quantity and
quality subject to the ordinary use by the upper riparian owners and he is bound
by a corresponding obligation to the lower riparian owners.
ACTS OF PARLIAMENT- RIGHTS OF A
LAND OWNER IN ZAMBIA
The following Acts of Parliament are relevant to the rights of a land owner in Zambia.

1.) The Lands Act (Cap 184):

This statute vests all land absolutely in the state through the office of the President. Section 3
states that “…all land in Zambia shall vest absolutely in the President and shall be held by
him in perpetuity for and on behalf of the people of Zambia.”

2.) The Lands Act and The Mines and Minerals Act Respectively:
Section 2 of the Lands Act defines land to mean “any interest in land whether the land is
virgin bare or has improvement but does not include any mining rights as defined by the
Mines and Mineral Act. Section 3 of the Mines and Minerals Act provides that the rights to
all minerals in Zambia are vested in the Presidency.

3.) The Water Act

The preamble to the Water Act provides that the Act is an art to consolidate and amend the
law in respect of the ownership, control and use of water and to provide for matters incidental
thereto. Section 5 of the Water Act vests the ownership of all water in Zambia in the
President. The use, diversion and apportionment of all water shall be made in terms of the
Act.

4.) The Town and Country Planning Act.

At common law, any land owner was free to use and develop his land in any way he wished
provided he did not commit a nuisance or trespass against his neighbor’s property. However,
this has been restricted. In Zambia, the Town and Country Planning legislation regulates the
development and use of all land in Zambia. The Act requires that the development and
subdivision of land and its use must be made subject to planning permission obtained from
the local authorities.

5.) The Public Health Building Regulations.

The building regulations promulgated under the Public Health Act cover matters such as the
construction, materials, height, sanitation, ventilation and size of room of any building that
has been constructed. Land owners therefore ought to ensure that all property or buildings
that they have built comply with the building regulations of the Public Health Act.

6. The Aviation Act

This is an Act to enable effect to be given to the International Convention on Civil
Aviation and to make provision for the control, regulation and orderly development of
aviation within Zambia.

7.) The Zambia Wildlife Act

This Act vests absolute ownership of every wild animal within Zambia in the Office of the
President on behalf of the republic. Sub sections 1-5 of section 3 provide that where any
wild animal which is not a game animal or a protected animal is captured or killed or
otherwise reduced into possession by any person in accordance with this Act, the absolute
ownership of that animal or of the carcass of that animal, as the case may be, is hereby
transferred to and vested in that person. Simply put, this law is intended to make as
government trophy all wild animals in Zambia and the rights to kill wild animals must be in
strict conformity with this law.

8.) The Penal Code

The Penal Code also makes sure the manner in which land owners operate their premises
should not lend itself to transmission of any infectious disease. Failure to which, severe
criminal penalties apply.

There are several other laws that restrict land ownership in Zambia which will later be
discussed.
CONCURRENT CO-OWNERSHIP OF
LAND
Two forms of co-ownership of land are relevant for our purposes.
1.) Joint Tenancy
2.) Tenancy in Common

Note: Tenancy in this context has nothing to do with leases. Rather the term is used to
describe co-ownership.

Under the Lands and Deeds Registry Act of 1914, there is provision for the co ownership of
land by two or more persons. Accordingly, the Act provides that:
“…any two or more persons named in any instrument under parts 3 to 7 or [any two or more
persons] requiring to be registered under this Act as transferees, mortgagees, leasees or
proprietors of any land or estate therein shall, unless the contrary is expressed, be deemed to
be entitled as joint tenants with the right of survivorship and such instrument when registered
shall take effect accordingly.
However, any statement the Act provides further or reference contained in any document or
instrument mentioned in subsection 1 which specifies the shares in which the property is to
be held shall be deemed to express that a joint tenancy is not to be created - s.5(2) of the Act.
(This stuff is not making sense, but we move)

Joint Tenancy
The term joint tenancy refers to a legal arrangement in which two or more people own a
property together, each with equal rights and obligations. Joint tenancies can be created by
married and non-married couples, friends, relatives, and business associates. This legal
relationship creates what is known as a right of survivorship so if one owner dies, their
interest in the property is directly passed on to the surviving party(s) without having to go
through probate or court system.

How Joint Tenancy Works

Two or more parties come together at the same time to make a legally-binding agreement
with one another through a deed. These parties may be relatives, friends, or even business
associates. For example, let's say an unmarried couple purchases a house. At the time of
purchase, they opt for joint tenancy. The deed to the property will name the two owners as
joint tenants.
Since each party has a claim to the property, they also share the benefits. If they decide to
rent out the home to another individual or if they sell the property, each party is entitled to a
50% share in the profits. But the relationship also means they are equally responsible to pay
for the property including mortgage payments, property taxes, and maintenance. If one fails
to live up to the financial obligations, the other party must assume responsibility. This
agreement also creates what's referred to as a right of survivorship. This means that if one
person dies, the other party automatically assumes full ownership of the property. This
eliminates the need for probate or the transfer of a deceased person's assets to an estate.
Probate courts decide the validity of a person's will and divide the assets up appropriately
among the deceased's beneficiaries.
The gift of land to two or more persons in joint tenancy is such a gift as imparts to them, with
respect to all other persons than themselves, the properties of one single owner. Although
between themselves joint tenants may have separate rights, against everyone else they are in
the position of a single owner as was held in Hammersmith and Fulham LBC v Monk
(1992). It was stated in that case that “…each joint tenant is effectively a single composite
person - given there are no shares - they are deemed in the eyes of ‘outside world [as] one
single owner”.
The intimate nature of joint tenancy is shown by its two principle features;
➢ the right of survivorship;
➢ the four unities.

The Right of Survivorship

This is, above all others, the most distinguishing feature of a joint tenancy. On the death of
one tenant, his interest in the land passes to the other joint tenants by the right of survivorship
also known as jus accrescendi. This process continues until there is only one survivor who
then holds the land as sole owner. The case of Gould v Kemp (1834) contains some
principles which aid in the understanding of the doctrine. Some of them include:
All joint tenants are afforded the right of survivorship which prevents the deceased
owner leaving their interest to their estate
A joint tenancy cannot pass under the will or intestacy of a joint tenant.
In each case, the right of survivorship takes precedence. It is often said therefore that each
joint tenant holds nothing by himself but rather holds the whole together with the other(s).
Whether he takes everything or nothing, depends upon whether he is the last joint tenant to
survive. From the foregoing is drawn the right of survivorship. At common law, if there
could be no right of survivorship there could be no joint tenancy.

The 4 unities [PITT]

The four (4) unities that must be present in a joint tenancy are the unities of;
1. Possession
2. Interest
3. Title
4. Time
See the case of AG Securities v Vaughan (1990)

Unity of Possession
Unity of possession is common to all forms of co-ownership. At common law, each co-owner
is as entitled to possession of any part of the land as the others. He cannot point to any part of
the land as his own to the exclusion of the others. If he could, there would be separate
ownership and not co-ownership.

Unity of Interest
The interest of each joint tenant is the same in extent, nature and duration, for in theory of
law, they hold just one estate. This has important consequences namely;
a. Although in theory of law, each joint tenant has the whole of the property, the rents
and profits of the land are to be divided equally between them.
b. There can be no joint tenancy between those with interests of a different nature such
as between a freeholder and a tenant for years; a tenant in possession and a tenant in
remainder; or a tenant with vested interests and a tenant with a contingent interest.
c. There can be no joint tenancy between those whose interests are similar but of a
different duration. For example, before 1926 in England, a tenant in fee simple and a
tenant in fee tail both owned freeholds, but the different duration in estates prevented
them from being held in joint tenancy.
 d. Any legal act requires the participation of all the joint tenants. For example, a
conveyance, a lease of the land, a surrender of a lease, the exercise of the break clause
or the giving of a notice.

The doctrine of Jus Accrescendi

This doctrine is neatly illustrated by the Zambian case of Scott v Scott [SCJ] (2001, Feb 1).
The facts of the case are as follows:
The appellant and respondent were lawfully married in November 1993. After more than 10
years they became so estranged that their union broke down irretrievably. The marriage was
dissolved by the High Court and their matrimonial property fell to be settled between them
since they bore no children during the marriage. At the point of property adjustment, pursuant
to section 21(2) of the Matrimonial Causes Act of 1973 of the UK, a dispute arose
concerning their right to property in the matrimonial house.

The Trial Court

Although the respondent, Mr. Scott, bought the property in 1994 during subsistence of the
marriage using funds from his own pocket, it was registered in both of their names as joint
tenants according to the certificate of title granted to them. The property consisted of 4 big
houses, one-bedroom cottage a bed-sitter. The four-bedroom main house was incomplete at
the time of dissolution of marriage. Mr. Scott paid for all the construction of the property
except for the paints and pipes that his wife bought for one of the houses.
Mr. Scott also separately bought another property in Olympia Lusaka. Mrs. Scott did not
contribute towards the purchase of the latter property. The title for this property was in Mr.
Scott's name though he acquired the property during the marriage.
During property settlement and adjustment, Mrs. Scott prayed for an equal share in the
former property, although, the evidence before the court was that the said property was
bought and registered in the joint names during the subsistence of the marriage.
The deputy registrar of the High Court when settling the property between the parties granted
Mrs. Scott a single two-bedroom and a three-bedroom house which constituted the former
property and ordered that they be assigned to her absolute use and property. She was also
granted a claim of 50% share of the rent realized from both the Kalundu (former) and
Olympia (latter) properties.

The Appeal
On appeal to the Supreme Court, the principal question for judgement was how to share
jointly owned property between divorcees upon dissolution of their union.
Upon holding that the Kalundu property was held on a joint lease or a joint tenancy, the court
held that;
1. Property co-owned under a joint tenancy is indivisible as between the joint holders. In
contradistinction with land held in common and indistinct shares.
2. Such property is subject to the principle of jus accrescendi which literally means the
right of survivorship between joint tenants. In such an event, it is improper for the court
to establish the extent of the parties' contribution when acquiring jointly owned property
at the time of sharing the property. When such property had to be shared between a
divorced couple, their concurrent interest in the property is indivisible. Therefore, the
parties must be treated as beneficially entitled in equal shares. As such, upon dissolution
of the marriage, valuation of the property must be first undertaken through a valuation
officer acceptable to both parties.
In the absence of an agreement [on which valuation officer to use] the valuation must be
undertaken by the valuation officers nominated by both parties. Following the valuation,
the property must be sold and the proceeds shared on an equal basis. Alternatively, if
either of the parties has sufficient funds of his or her own and is desires to keep the
property, he or she can do so by paying the other party his or her 50% share based on the
valuation. Accordingly, upon dissolution of a marriage, the husband and wife are
beneficially entitled in equal shares to the proceeds of any jointly owned property.

THE RIGHT OF SEVERANCE

Severance refers to the process whereby a joint tenancy is converted into a tenancy in
common. The common law mitigated the uncertainty of the right of survivorship by enabling
a joint tenant to destroy a joint tenancy by severance. In this way, it became a tenancy in
common. Severing a joint tenancy can occur through the use of a written agreement at any
time, or a court order where there is no consensus on the terms with the other joint tenant(s).

Re Drapar's Conveyance (1968)

In this case, a house was conveyed to a husband and wife as joint tenants. The wife obtained
a divorce and issued a summons under s.17 of The Married Women's Act of 1882 asking
for an order that the house be sold and the proceeds distributed according to the interests of
the spouses. The order was made but the husband remained in occupation. When he died, the
question was whether the wife was entitled to the house absolutely by survivorship or
whether she and her husband's estate where entitled in equal shares.
Held
The court held that the wife held the legal estate on trust for herself and her husband's estate
in equal shares. According to Ploughman J, severance may take any one of the following
forms;
1. An Act - An act of any one of the persons interested operating upon his own share may
create a severance as to that share. The right of each joint tenant is a right by survivorship
only in the event of non-severance having taken place of the share which is claimed under
the jus accrescendi. Each one is at liberty to dispose of his own interest in such manner
as to sever it from the joint fund losing, of course, at the same time, his own right to
survivorship. This method involves a declaration of intention by one party to sever
2. A joint tenancy may also be severed by mutual agreement.
3. There also may be a severance by any course of dealing sufficient to intimate that the
interests of all were mutually treated as constituting a tenancy in common. When the
severance depends on an inference of this kind without any express act of severance, it
will not suffice to rely on an intention with respect to the particular share declared only
behind the backs of the other persons interested.

Homicide
On consequence of the rule that no one may benefit in law from his own crime is the general
rule that if one joint tenant criminally kills another, the killer cannot take any beneficial
interest by survivorship. This rule or public policy, commonly known as the forfeiture rule
applies to cases of deliberate and intentional homicide whether the killing is murder,
manslaughter or aiding and a suicide.
In relation to aiding and abetting a suicide, in Dunbar v Plant (1998), it was stated that it has
not been conclusively settled in England whether the application of the [forfeiture] rule
causes the automatic severance of the joint tenancy or whether a constructive trust is imposed
to prevent the killer from obtaining any benefit from his crime. However, in Re K (1985), it
was suggested that the severance is in fact automatic. On the other hand, in Australia, the
courts impose a constructive trust instead and there are persuasive reasons for their
preference of this view.
See:
 Rusmanis v Gurewitsch (1969)
 Public Trustee v Evans (1985)
Under the doctrine of jus accrescendi, if the law did not operate to circumvent such a
criminal purpose a joint tenant who murders the other tenant would have to inherit the
property as a surviving tenant. As such, what the law does is, it prevents him from doing so
by imposing the doctrine of the forfeiture rule, that is, the rule that he forfeits the share that
belonged to the deceased person because the death is attributable to his criminal act. In this
way, once it is proven that one of the joint tenants died at the [intentional] hands of the other
joint tenant, the property does not pass to the survivor because he is a criminal. Instead,
constructive trust is created so that he returns ownership of the property for the sole purpose
of passing it over to the estate of the deceased tenant who he has slain with his blooded
hands.
TENANCY IN COMMON
A Tenancy in Common is defined as an estate that has shared ownership, in which each
owner owns a share of the property. Even if owners own unequal shares, all owners still have
the right to occupy and use all of the property. A tenancy in common differs significantly
from a joint tenancy for the following reasons;
1.) The tenants hold divided shares
Each tenant in common has a distinct share in property which has not yet been divided
among the tenants. Thus, tenants in common have quite separate interests. The only fact
which brings them into co-ownership is that they both/all have shares in a single property
which has not yet been divided among them. While the tenancy in common lasts, no one can
say which one of them owns any particular parcel of land. The case of Re King's Theatre,
Sunderland (1929) illustrates how the tenancy in common operates.

2.) No Right of Survivorship

The size of each tenant's share is fixed once and for all in a case of a tenancy in common and
is not affected by the death of one of his companions. When a tenant in common dies, his
interest passes under his will or intestacy for his undivided share is his to dispose of as he
wishes. See the case of Re Kings Theatre, Sunderland (1929). In other words, when one of
the owners dies in a tenancy in common agreement, that person’s proportionate interest in the
property does not automatically go to the other joint owners. Instead, it is passed on in
accordance with the wishes of the deceased’s will. If no will is present, then it is distributed
in line with intestacy laws.

3.) Only the unity of possession is essential to a tenancy in common

Although the 4 unities of a joint tenancy may be present in a tenancy in common, the only
unity which is essential is that of possession. All owners have equal rights to the whole
property, but each owns a specific proportion of it. In particular, it should be noted that the
unity of interest may be absent and the tenants may hold an equal interest. That is to say that
one tenant in common may be entitled to 1/5 share while another to 4/5 or maybe entitled to
life and the other in fee simple.
LEGAL AND EQUITABLE INTERESTS
An equitable interest is an "interest held by virtue of an equitable title, that is, a title that
indicates a beneficial interest in property and that gives the holder the right to acquire formal
legal title. It is an interest claimed on equitable grounds, such as the interest held by a trust
beneficiary". The equitable interest is a right in equity that may be protected by an equitable
remedy.

The Purchaser Without Notice Doctrine

It is a fundamental rule that a purchaser of a legal estate for value without notice is an
absolute, unqualified and answerable defence against the claims of any prior equitable owner
or encumbrancer. The onus of proof lies on the person putting forward this plea. It is a single
plea and is not sufficiently made out by proving purchase for value and leaving it to the
plaintiff to prove notice if he can. The scope of the rule is explained and its elements are
examined below.

Bona Fide
The purchaser must act in good faith. Any sharp practice or unconscionable conduct may
forfeit the privileges of a purchaser in the eyes of equity in accordance with general
principles. Although good faith is traditionally mentioned as a separate test which may have
to be passed even when absence of notice is proved, there are no clear examples of it
operating independently in that way.

Purchaser for Value

The words "for value" are included to show that value must have been given because
purchaser in its technical sense does not necessarily imply this. Value does not necessarily
mean full value. It means any consideration in money or “money’s worth,” e.g. other land or
stocks and shares, services or marriage. Money’s worth extends to all forms of monetary
consideration (in the sense used in the law of contract). It also includes the satisfaction of an
existing date. If the purchase is for money consideration, the purchaser must actually pay all
the money before receiving notice of the equitable interest.
The immunity from equities enjoyed by the purchaser without notice is founded on equity's
deference to the legal estates. As courts of equity break in upon the common law, when
necessity and conscience require it, they still allow superior force and strength to a legal title
to estates. The legal estate cannot be challenged by merely equitable claimants unless he is a
volunteer or has notice. The owner of an equitable interest can prima facie convey only what
is vested in him so that if part of his equitable interest has already been conveyed away, a
subsequent purchaser can take only so much of it as remained. The rule is therefore that,
"where [and only where] the equities are equal, the first in time prevails". It is only
acquisition of the legal estate for value and without notice which will reverse the natural
order of priority.
An illustration is provided by a case where land held upon trust was fraudulently mortgaged
first to legal and later to equitable mortgages, none of whom had notice of the trust. It was
held, in this case, that the legal mortgagee took priority over the beneficiaries under the trust
and the equitable mortgagee did not. The purchaser must have the legal estate properly vested
in him by a conveyance of he is to be safe. If he has paid the purchase money but gets notice
of a prior equitable interest before the purchase is completed by the conveyancer of the legal
estate, he will take subject to the equity.

McCarthy and Stone Ltd v Julian Eshodge & Co. Ltd (1971)
Note: The principle in this case does not apply to a subsequent equitable interest. A
purchaser who takes a conveyance of a legal estate with notice of an equitable interest created
after he contracted to buy the land takes free from it for his equitable interest under the
contract has priority over the later equity and the conveyance merely carries out the contract.
It was stated in this case that the rule that the purchaser must take a legal estate before
receiving notice is subject to three (3) qualifications namely;

A.) Superior Right to Legal estate

A purchaser without notice who acquires only an equitable interest can defeat a prior equity if
his equitable interest gives him a superior right to the legal estate.

B.) Mere Equities

A purchaser without notice does not have to take a legal estate in order to take free from a
mere equity, that is, an equitable right that falls short of an equitable interest in land.
 C.) Without Notice
There are three (3) kinds of notice, Namely;

1.) Actual Notice

Knowledge and notice are different things. A person may be regarded as having notice of a
fact, not because he knows it but because for legal purposes, he is construed/taken to know it.
In practice, however, this distinction is not always observed. The term actual notice has been
used to cover a number of different situations. For example;
I. A person is commonly said to have 'actual notice' of a fact of which he has subjective
knowledge regardless of how that knowledge was acquired
II. A person who is provided with the means to know a fact but does not avail himself of that
means will have actual notice of that fact, thus, if a person is supplied with a document in
a conveyancing transaction but does not read it, they will still have actual notice of its
contents
III. If a person has actual notice of a fact, he will continue to have such notice if he
subsequently forgets that fact because it is quite impossible to say that notice lapses with
memory.
IV. By statute, a number of rights have become registerable in the Land Charges Register at
the Ministry of Lands and it has been provided that registration of such rights constitutes
actual notice.

2.) Constructive Notice

I. The Duty of Diligence
In discussing this rule, a good starting point would be to consider the duty of diligence.
Equitable interests would have been entirely insecure if it had been made easy for purchasers
to acquire the legal estate without notice as by merely asking no questions. Accordingly, the
court of chancery insisted that purchasers should inquire about equitable interests with no less
diligence than they would about legal interests which they could ignore only at their own
peril. The motto of English conveyancing is Caveat emptore - let the buyer beware. The risk
of encumbrances is on the purchaser who must satisfy himself by a full investigation of title
before completing his purchases. However, the caveat emptore principle has long been
tempered with by the obligation imposed on the vendor of land at common law to disclose
latent defects in his title before he contracts to sell it.
II. The Standard Required
By the doctrine of constructive notice, equity adopted a similar principle and adapted itself to
the ordinary conveyancing practice. A purchaser would be able to plead absence of notice
only if he had made all usual and proper inquiries and had still found nothing to indicate the
equitable interest. If he fell short of this standard, he could not plead that he had no notice of
rights which proper diligence would have discovered. Of these, he would be said to have
constructive notice.
A purchaser, accordingly will have constructive notice of a fact if he;
➢ had actual notice that there was some encumbrance which would have been revealed
by proper inquiry
➢ deliberately abstained from inquiry in an attempt to avoid having notice
➢ omitted [by carelessness or for any other reason] to make an inquiry which a
purchaser acting on skilled advice ought to make and which would have revealed the
encumbrance.
The purchaser's ordinary duties fall into two main categories;
 Inspection of the Land
 Investigation of the Vendors

a) Inspection of the Land

A purchaser is expected to inspect the land and make inquiry as to anything which
appears inconsistent with the title offered by the vendor. It is an ancient rule that the fact
of possession constitutes notice of the rights of the possessor. Two reasons have been
given for this. First, occupation of the premises by a person whose presence is
inconsistent with the vendor's title places any purchaser on inquiry as to the occupier's
rights. Secondly, it is said that as possession is prima facie evidence of title, a purchaser
is deemed to have notice of the rights of any person in possession. A purchaser should
therefore;
o ascertain whether there is anybody in possession or occupation of the land
apart from the vendor, at least, if there are any circumstances from which a
reasonable person might infer this
 o make inquiry of any such person. The mere fact that there is a person on the
land such as a spouse whose presence is not consistent with that of the vendor
does not obviate (remove) the need for the purchaser to make inquiry of them.

The old view to the contrary has now been discredited. If for example a husband is the sole
legal owner of land but his wife has an equitable interest in the property by reason of some
contribution to the cost of its acquisition, any purchaser will be bound by her interest unless it
was not disclosed after proper inquiry by her. There may, of course, circumstances in which
a person in possession of land is estopped from ascertaining any interest in it. Occupation by
a tenant is notice of the interest of the tenant, the terms of his tenancy and his other rights
though not of any right which is not apparent from the lease such a right to have it rectified
on account of a mistake. However, purchaser is under no duty to find out to whom a tenant
pays rent or to investigate the tenant's title so that failure to make such inquiries does not give
him constructive notice of any rights of the tenant's landlord who may be a different person
from the vendor.
Notice resulting from occupation extends, in general, to all other equitable rights which the
occupier may have in the land. Notice that property is subject to trusts is notice of all the
trusts to which it is subject in the hands of the trustees and notice of the existence of a
document that might be expected to be relevant is notice of its contents.

b) Investigation of Title
A purchaser has constructive notice of all rights which he would have discovered had he
investigated the vendor's title to the land for the period allowed by law in ordinary cases
where the parties make no special agreement as to the length of title.
Investigation of title means the examination of documents relating to the transactions in
the land during the period immediately prior to the purchase.
For example, if a title consists of a series of conveyances respectively 5 14 25 and 40
years old as well as older deeds, a purchaser is entitled to production of the conveyance
which is 25 years old and all subsequent conveyances. If in fact he fails to investigate the
title at all or investigates it for only part of this period, e.g. because he has agreed to
accept a shorter title or to make no objection to some dubious transaction, he is fixed with
constructive notice of everything that he would have discovered had he investigated the
whole title for the full statutory period.
3. Imputed Notice
If a purchaser employs an agent such as an advocate, any actual or constructive notice which
the agent receives is imputed to the purchaser. In Strover v Harrington (1988) it was held
that the basis of this doctrine is that the person who empowers an agent to act for him is not
allowed to plead ignorance of his agent's dealings. As such, where an advocate discovered an
equitable mortgage on the title was deceived by a forged receipt into believing that the
mortgage had been discharged, the purchaser had imputed notice of the mortgage and was
bound by it.
Since advocates are usually employed to investigate title, this branch of the doctrine of notice
is essential, but in order to check its extension, it is confined by statute to [the] notice which
[the] agent acquires acting as such in the same transaction.
Where the same advocate acts for both parties, there is a conflict of authority as to whether
any notice that he acquires will be imputed to both parties.
The older cases favored the view that it would. However, in more recent decisions, the courts
have held that what the advocate learns when acting for one party he does not learn while
acting as agent for the other.
Notice will not be imputed to a party just because the advocates knows that another member
of his firm acted for the other party in an earlier transaction. Unless the facts are so
compelling as to put him on inquiry nor will a purchaser be fixed with notice if he employed
the vendors advocate not generally but merely to draw up the conveyance. Because imputed
notice rests upon a person's presumed knowledge of his agent's dealings, an exception also
arises where the agent deliberately defrauds the principle.
THIS AUDIO DID NOT MAKE MUCH SENSE. YOU ARE NOT THE PROBLEM.
PLEASE REFER TO OTHEE NOTES AND THE TEXT BOOK

CASE LAW
Pucher v Rollings
It was decided in that case that the plea of purchaser of a legal estate for value without notice
is "an absolute, unqualified and answerable defence". This principle was reaffirmed in:

Mwenya and Another v Kapinga (1998).

As per Bweupe DCJ
The respondent occupied the appellant's property, plot No #4109 Sunningdale Lsk on a 6yr
lease. The respondent subsequently offered to sale the appellant his property at the price of
k12,000,000. He was paid a down payment of k800,000 by the respondent. The respondent
eventually utilized those funds to redeem the mortgage on the property which he had pledged
to a bank. The respondent then settled the balance a month later via payment into
court(google). But the appellant declined to accept the money and claimed he had since
resold the property to a third party named Jason Rundy (the co-appellant) due to respondent's
alleged delay. The respondent claimed specific performance of the contract of sale. The
appellant had in fact resold the property for k13,000,000 which was a higher price. The high
court agreed holding that;
"The attempted cancellation of the contract of sale was void ab initio." The appellant
impugned/challenged the order for specific performance on the ground that there was a bona
fide purchaser for value without notice and that damages could have adequately atoned/made
up for the resulting injury to the respondent. The respondent demurred/denied/objected the
claim arguing that Jason Rundy was no bona fide purchaser at all because he had constructive
notice of the respondent's rights as a tenant in possession of the disputed property.
On appeal to the Supreme Court, it was held inter alia that the occupation of land by a tenant
affects a purchase of land with constructive notice. Occupation of land by a tenant affects a
purchaser of land with constructive notice of all that tenant's rights including an agreement
for sale to him by the vendor. If a purchaser has noticed that the vendor is not in possession
of the property, he must make inquiries of the person in possession of the property and find
out from him what his rights are. If at all he does not choose to do that, the whatever title he
acquires as purchaser will be subject to the title and rights of a tenant in possession.

Hunt v Luck (1902)

Constructive notice attaches to a purchaser who deliberately or carelessly abstained from
making those inquiries that a prudent purchaser would have made. See also Oliver v Hinton
(1899).

Nawakwi v LCC (2001)

In this case, the appellant sued LCC and claimed that its decision to sale Hse #4483 Katima
Mulilo Road, Kalundu to the honorable E. Nawakwi without giving her the right of first
option to purchase as sitting tenant was unreasonable, unlawful and null & void and therefore
of no effect. The council have offered the house for sale after declining the plaintiff's offer to
purchase on the ground that no government property was liable to be sold pursuant to a
government prohibition against selling public property.
The property was sold to honorable Nawakwi w/the full knowledge that the plaintiff was the
tenant in possession. The evidence on record proved that Nawakwi's advocates had in fact
corresponded with the plaintiff and demanded that she yield that vacant possession of the
property so that it could be occupied by the client. In addition, honorable Nawakwi even
demanded mesne profits from the plaintiff due to her refusal to yield vacant possession.
The Supreme Court held that the plaintiff's tenancy in possession should have put honorable
Nawakwi on inquiry as a prudent purchaser and that she is thereby deliberately or careless
abstained from making inquiries that a prudent purchaser would have made. Purchasing of
real property cannot be taken as casually as purchasing household goods. The court
accordingly attached constructive notice against honorable Nawakwi as a purchaser with
notice of the rights of the tenant in possession.
The Nature of a Lease
A lease is a legal, binding contract outlining the terms under which one party agrees to rent
property owned by another party. The lease guarantees the tenant, also known as the lessee,
use of the property and guarantees the lessor, the property owner or landlord, regular
payments for a specified period in exchange. Residential leases tend to be the same for all
tenants, but there are several different types of commercial leases. Consequences for breaking
leases range from mild to damaging, depending on the circumstances under which they are
broken.
A lease is a bilateral contract. As a general rule, it confers an estate in the land capable of
binding third parties. In this respect, see Bradshaw v Pawley (1980). The nature of this type
of contract is for "the exclusive possession and profit of land for some definite period". In
this respect, see Prudential Assurance Company Ltd v London Residuary Body (1992). The
estate so created, whatever its duration, may be referred to as a leasehold, a tenancy or a term
of years. In order to comprise a legal estate, the lease must be created by deed subject to an
important exception where the lease does not exceed 1 year in Zambia.
Leases must be distinguished from other contracts concerning the use of land for there is an
infinite variety of such contracts which are not leases. Parties may make any bargain they
deem fit between themselves and enforce it between themselves as a contract. But if one
wishes to give the other an estate, (a proprietary interest which will bind not only the granter
but also third parties), then the interest must conform to the requirements by which the law
limits the kinds of estates which can be created. In this respect, the fundamental taste of a
lease is the right to exclusive possession held by the tenant against the landlord and all third
parties. As per the case of Bruton v London and Quadrant Housing Trust (2000), it has
always been in the essence of a lease that the tenant should be given the right to exclusive
possession, that is, the right to exclude all other persons including the landlord from the
premises.
The right to occupy premises for a fixed period cannot be a tenancy if the person granting the
right remains in general control of the property. It will therefore take effect as a license in
contradistinction with a lease. The typical case is where the landlord provides services such
as cleaning for the occupants.
In Street v Mountford (1985), the HOL restored the law to its former and more principled
position where, as a matter of fact, a person was granted exclusive possession of land for a
term at a rent/fee. That grant created the lease. This was so with whatever label the parties
 might attach to their arrangement. The test was one of substance not of form. The legal
consequences of what has been agreed is therefore a matter of law rather than dependent on
what the parties intended. Although there could be no tenancy in the absence of exclusive
possession, an occupier who had exclusive possession would not be a tenant in 3
circumstances namely;
I. If there was no intention to create legal relations;
II. If the occupier’s occupation was attributable to some other relationship as where he was a
freeholder, a trespasser, a purchaser in possession under a contract of sale, an object of
charity or where he occupied a contract of employment or by reason of some office;
III. Where the owner of the land had no power to grant a tenancy.

The HOL stated that;

"Although the Rent Acts must not be allowed to alter or influence the construction of an
agreement, the court should be astute (mentally sharp or clever) to detect and frustrate
sham devices and artificial transactions whose only objective is to disguise the grant of a
tenancy and to evade the rent acts. "

Shams and Pretenses

Shams basically occur when one says one thing and does another. Although the parties will
be presumed to mean what they say, the court will be vigilant to detect provisions [in their
written agreement] whose only object may be to disguise the grants in a tenancy and so evade
the legislation that exists to protect certain tenants.
Such provisions have been variously described as sham devices, artificial transactions and
pretenses. The court seeks to ascertain whether the party's true bargain is the same as that
which appears on the face of the agreement for it is the true bargain which effect will be
given and which therefore determines whether the agreement is a lease or license.
It may be evident on the face of the agreement that one or more of its terms is not genuine -
such as:
 A requirement that the occupant must vacate the premises between 10:30AM and Noon
daily
 A provision empowering the landlord to remove furniture from the occupant's room w/out
replacing it.
Even if this is not the case, the fact that a term is not genuine may be apparent either from the
surrounding circumstances or from the conduct of the parties subsequent to the agreement.
While the court must keep vigil for pretenses, the onus of proving that a term or lease is a
sham rests on the party asserting that it is. Even if a particular term or lease has never been
invoked by the land law, it is open to him to justify it, e.g. as a matter of commercial practice,
the court does not lean in favor of any particular approach to construction or any particular
inference of the facts of the case.
Although the court cannot look at the subsequent conduct of the parties in construing an
agreement, it is admissible evidence as to whether the written agreement genuinely reflects
their true intentions. Subsequent conduct may occasionally lend support to the landlord's
contention that the terms of an agreement were genuine. In one case, 2 cohabitants entered
into separate agreements with the landlord for the occupation of a flat by which each was
severally liable for half the rent. One of them left and the landlord refused to accept more
than half the rent from the occupant remaining. The court held that these agreements were
genuinely independent and therefore did not confer exclusive possession of the flat on the 2
occupants as joint tenants. See Mikeover ltd v Brady (1989).
In three exceptional circumstances, an occupier who has exclusive possession of premises
will not be a tenant under the lease. These are;

 where there is no intention to create legal relations;

 where occupation is referable/attributable to some other relationship such as
accommodation provided by virtue of employment or one's office;
 where there is no power in the landlord to grant a tenancy.

The requirement of exclusive possession distinguishes leases not merely from licenses but
also from easements. An easement is merely a right to a piece of land and not a right to its
possession. If a right by its nature does not confer exclusive possession on the grantee (such
as a right to pass over another's land) it may be a license or an easement but is cannot be a
tenancy.
According to s.4 of the Lands and Deeds Registry Act, in order to create a legal estate
which can rank as a term of years, the lease must be made with the proper formalities. For
example, granting a lease for longer than 12 months without registering it will affect its
validity and render it null and void at law.
Street v Mountford (1985)
Facts
By an agreement dated 7th March 1983, the respondent, Mr. Street granted the appellant,
Mrs. Mountford, the right to occupy the furnished rooms 5 and 6 at Five St. Clements
Garden. She was allowed to do this from 7th March 1983 for 37 pounds per week subject to
termination by 14 days’ written notice and (subject) to the conditions set forth in the
agreement.
Issue
The question raised in the appeal was whether the agreement created a tenancy or a lease.
Lord Temperman gave the leading judge and held that Mrs. Mountford did not acquire any
estate in the land if the agreement dated 7th March 1983 created a license. She did however
acquire an estate [and had the right exclusion possession of the premises] if that agreement
created a tenancy. Hence, the case sought to distinguish the difference between a tenancy and
a license.
Held
In the leading judgement by lord Temperman, the HOL held that an occupier of residential
accommodation at a rent for a term is either a lodger or a tenant. The occupier is a lodger if
the landlord provides attendance or services which require the landlord or his servants to
exercise unrestricted use and access to the premises. The lodger is entitled to live in the
premises but cannot call the place his own. The HOL relied on the case of Allan v Liverpool
overseers (1874). Wherein, Blackburn J said,
"a lodger in a house, although he has exclusive use of rooms in the house (exclusive in the
sense that nobody else is to be there), is not in exclusive occupation (although his belongings
are stored there) because the landlord is there for the purpose of being able to have his
servants look after the house and furniture and has retained to himself the occupation though
he has agreed to give exclusive possession and enjoyment to the lodger"
Lord Temperman went on to hold that;
"For a term at a rent with exclusive possession, the landlord providing neither attendance
nor services, grants a tenancy. Any express reservation to the landlord of limited rights to
enter and view the state of the premises and to repair and maintain the premises only serves
to emphasize the fact that the grantee is entitled to exclusive possession and he is a tenant. In
the present case, it is considered that Mrs. Mountford is entitled to exclusion possession and
is not a lodger. Mr. Street provided neither attendance nor services and only reserved the
limited rights of inspection and maintenance and the as set forth in clause 3 of the agreement.
On the tradition view of the matter, Mrs. Mountford not being a lodger must be a tenant.
Furthermore, where the occupation is necessarily for the performance of services and the
occupier is required to reside in the house in order for them to perform those services, the
occupation being strictly ancillary to the performance of the duties which the occupier has to
perform, the occupation is that of a servant."

The Rule Against Uncertainty

Principle and precedent dictate that it is beyond the power of the landlord and the tenant to
create a term which is uncertain. According to Prudential Assurance Company Ltd v London
Residuary Body (1992), the duration must either be certain or capable of being made certain
in order for a lease or a tenancy to be valid. The law does not recognize a lease in
perpetuity/infinity. As such, any lease granted for an indeterminate period, such as for the
“duration of the war” would be void for uncertainty at common law. Where a lease is
invalidated for uncertainty, the court will substitute it with a periodic tenancy upon proof of;
1. Possession
2. Payment of rent
In such a case, the new periodic tenancy will continue on the same terms that the parties had
agreed had the invalidated lease been valid. A person who has entered into possession under
a lease that is void because of its uncertain duration has traditionally been considered to be a
tenant at will at least initially. This is because he has exclusive possession. See Wheeler v
Mercer (1957). A grant for an uncertain term does not create a lease. See Prudential case.
According to the world famous Blackstone's Commentaries on the law of England;
"Every estate which must expire at a period certain and prefixed by whatever words created
is an estate for years. Therefore, this estate is frequently called a term because it's duration
or 'continuous' is bound, limited and determined. Every estate must have a certain beginning
and a certain end."
~per Lord Temperman in Prudential Assurance Company Ltd v London Residuary
Body.
Lord Temperman reaffirmed the certainty doctrine in leases by saying:
"My lords, I consider that the principle in Lace v Chandler (1944) reaffirming 500 years of
judicial acceptance of the requirement that a term must be certain applies to all leases and
tenancy agreements. In any event, principle and precedent dictate that it is beyond the power
of the landlord and the tenant to create a term which is uncertain."
Tenancies at Will and at Sufferance
A tenancy at will arises whenever a tenant, with the consent of the owner, occupies land as
tenant and not merely as a servant or agent on the terms that either party may determine or
terminate the tenancy at any time.
How is a tenancy at will created?
This kind of tenancy may be created either expressly or by implication. Common examples
include the following instances:
• where a tenant whose lease has expired holds over (the premises) with the landlord's
permission;
• where a person is allowed into possession while the parties negotiate the terms of a
lease;
• where a tenant takes possession under a void lease or under a mere agreement for a
lease and no period tenancy has arisen from the payment of rent;
• where a person is allowed to occupy a house rent free and for an indefinite period;
• where a purchaser was late into possession pending completion.
Unless the parties agree that the tenancy shall be rent free or [unless] the tenant has some
other right to rent free occupation, the landlord is entitled to compensation for the use and
occupation of the land. This compensation will be the ordinary market value of the premises.
If the rent has been agreed upon, a warrant of distress can be levied in order to cease the
goods of the tenant and sell them in order to realize the rent owed.
The essence of the tenancy is that either party can determine it at will even if it is made
determinable at the will of the landlord only. For the law will imply that it is to be
determinable at the will of the tenant also.
How does a tenancy at will come to an end?
A tenancy at will come to an end when either party does any act incompatible with the
continuance of the tenancy. For instance:
 where the tenant commits voluntary waste
 where the landlord enters the land and cuts trees or carries away a stone
 Where the landlord serves a writ claiming possession of the land
 Where either party gives notice to the other to determine the tenancy
 Where either party dies or assigns his interest in the land.
N.B:
The tenant may not be ejected until he has knowledge of the act or event which has
determined the tenancy. Where a person occupies land as a tenant at will and rent is paid and
accepted on some regular periodic basis, a periodic tenancy may be inferred. The precise
nature of a tenancy at will has never been definitely settled. Probably the best analysis of it is
that it is a form of tenure but one that confers no estate.

Tenancy at Sufferance
A tenancy at sufferance arises where a tenant, having entered the land under a valid tenancy,
holds over it without the landlord's assent or dissent. Such a tenant differs from a trespasser
in that his original entry was lawful and from a tenant at will in that his tenancy exists
without the landlord's consent. A tenancy at sufferance can arise only by operation of law and
not by express grant for it assumes an absence of agreement between landlord and tenant.
A tenant at sufferance is in an equal position to that of a squatter. That is to say, an adverse
claimant. The law does state that a squatter's interest may in some occasions be a legal estate.
A tenancy at sufferance will be converted into a tenancy at will if the landlord assents to the
tenant's occupation. The circumstances which such a tenancy at will may be converted into a
yearly or other periodic tenancy are quite numerous and various.

Fixed Term Tenancies

In Zambia, a lease may be granted for any period of certain duration for any length of time
not exceeding 90 years. The lease may be either for a continuous or discontinuous period. A
contract for a lease that doesn't specify the intended date of commencement will be void
unless the date can be inferred from the language of the privies. See Harvey v Pratt (1965)
and Liverpool City Council v Walton Group PLC (2002).
A fixed term lease expires automatically by a fruition of time upon expiry of the term
granted. Notwithstanding, a tenant is granted some degree of security by certain statutes and
it is therefore the case, for example, under the Rent Act of 1972 that even after a tenancy has
expired, the tenant has statutory authority to hold over.
Periodic Tenancies.
The certainty rule enjoins/dictates that a yearly lease should be construed as a succession of
one year terms. A periodic tenancy can be terminated by notice amounting to at least one full
period of the tenancy. Thus, monthly tenancy requires notice of one month and the weekly
tenancy requires notice of one week. In a special case of a yearly tenancy, the lease is
terminable by at least half a year's notice. See Side Botham v Holland (1918)
There are three existing methods to create periodic tenancies. These are;
 By Statute.
 By Express Agreement.
 By Inference from the parties' conduct.
The Distinction between a License and
a Lease
The case of Street v Mountford (1985) is the foremost authority for the distinction between
a license and a lease. In that case, the question that arose for adjudication was whether or not
the agreement between the privies amounted to a lease.
In that agreement, the respondent, (S) granted the appellant (M) the right to occupy his
furnished rooms for a money consideration subject to the condition that the occupation of the
rooms exclusively vested. The court held that the agreement constituted a lease and thus
created an estate in the land subject to the Rent Acts of the UK.
This distinction is fundamental because of its potential to implicate or avoid the statutory
protection accorded to a tenant by rent legislation. Significantly, the HOL overruled the
designation of the money consideration paid in respect thereof as a license fee of 37 pounds
per week as well as the express clause purported to disclaim the grant of a tenancy protected
under the Rent Acts and held nonetheless that the parties had ipso facto contracted a tenancy.
It was held therefore that;
"Words alone may not suffice. Parties cannot turn a tenancy into a license merely by calling
it one. But if the circumstance and the conduct of the parties show that all that was intended
was that the occupier should be granted a personal privilege with no interest in the land then
he will be held to be a licensee only."
In its simplest form, a license is a permission to enter upon land. It makes lawful what would
otherwise be a trespass. It is neither a proprietary interest nor is it a piece of the property. A
licensee is merely not a trespasser. Contractual licenses are mere contracts. A license is
incapable of conferring any estate in land. Accordingly, in the case of IDC Group Ltd v Clarke
(1992), Knowles LJ held that, “A license properly so called is permission to do something of
the land which creates no interest in it.”
In Street v Mountford, the HOL held that a license in connection with land while entitling
the licensee to use it for purposes authorized by the license does not create an estate in the
land.
License are of three (3) main types namely:
1. Bare or gratuitous license
2. Contractual license
3. License coupled with a grant or an interest
A bare license is gratuitous and granted at the licensor's pleasure. However, upon revocation
of such a license, the licensee is entitled to a reasonable time within which to vacate the
premises and remove any possession of his. See:
➢ Minister of Health v Bellotti (1944).
➢ Canadian Pacific Railway Company v R (1931).
➢ Australia Blue Metal Ltd v Hughes (1963).
The time thus allowed affords the licensee some measure of what has been termed by the
English COA ‘the appropriate period of grace.’ See the case of Winter Garden Theatre
Garden (London) Ltd v Millennium Productions Ltd (1946).

The licensee can maintain an action for assault or false imprisonment if the facts allow. That
is to say, if a licensee is not given a reasonable time following the revocation of his license,
he can maintain an action for assault or false imprisonment depending on the circumstances
of the case. Damages remedy a wrongful termination of a contractual license because that
constitutes a breach of contract. See Kerrison v Smith (1897).

While equity will intervene by either injunction or specific performance to restrain improper
revocation of a license coupled with a grant, bear in mind that a license coupled with a grant
is irrevocable once issued. It was settled in Webb v Paternoster (1619) that no license
coupled with a grant is revocable. The settled practice of the courts of equity is to do what
they can by an injunction to preserve the sanctity of a bargain. A licensee who has refused to
accept wrongful repudiation of the bargain which is involved in an unauthorized revocation
of the license is entitled to the protection of an injunction. See Winter Garden Theatre
(London) Ltd v Millennium Productions Ltd (1948).
The breach of the contract by the licensor could restrained by the courts of equity and the
court of equity would interfere to prevent the licensor taking steps pursuant to his wrongful
revocation. See the Winter Garden Theatre Case. If the licensor was threatening to revoke,
equity would grant an injunction to restrain him from carrying out that threat. But supposing
he has in fact purported to revoke, equity would say "you have revoked and the licensee had
no opportunity of stopping you from doing by an injunction." What the court of equity can
do is stop you from carrying out that revocation and restrain you from doing anything under
it by an appropriately worded equitable remedy. See Winter Garden Theatre Case.
Bare and Gratuitous License not irrevocable.
A bare license is revocable at the option of the licensor and non-assignable. In Wood v
Leadbitter (1845), the plaintiff was forcibly evicted from a race course and thus barred from
watching a scheduled horse race on suspicion of malpractices on a previous occasion. He had
bought a valid ticket entitling him to attend the event. Reasonable force was used to evict
him. He unsuccessfully sued for both assault and false imprisonment. His action failed
because he was merely licensee without any proprietary interest in the race course. In the
judgement of the court of exchequer, it was stated that;
"A license under seal, provided it be a mere license, is revocable as a license by parole and
on the other hand, a license by parole coupled with a grant is as irrevocable as a license by
deed provided only that the grant is of a nature being made by parole. But where there is a
license by parole coupled with a parole/pretended grant of something which is incapable of
being granted in another way other than by deed, the license is a mere license. It is not an
incident to a valid grant and it is therefore revocable."
Contractual Licenses and Third Parties
Authority leads to the conclusion that licenses are not ordinarily binding on third parties. In
Errington v Errington and Woods (1952), the father(A) of a young man who was about to be
married purchased a house through a building society. He made a down payment and assured
the young couple that the house would be theirs when they paid all the installments due under
the mortgage. They went into possession and paid all the installments which fell due. Nothing
was stated concerning the rights of the young couple during the currency of the mortgage
payments. The father (A) died, living all his properties to his wife.
The son returned to his mother who took steps to evict the daughter in law. She failed. The
daughter in law was held to be a licensee who was entitled to protection not only against A in
his lifetime but also against Mrs. A taking as a volunteer.
This position has since been clarified by the COA in Ashburn Anstalt v Arnold (1989)
which has put the matter beyond doubt and repudiated the heresy that a mere license creates
an interest in land.
The licensee's Remedies for Breach.
Damages
The normal remedy for the breach of contract is of course damages and there is little doubt
that this was recognized even in the old common law cases which held that the licensee could
be evicted. In Tanner v Tanner (1975), the defendant and the claimant were in a relationship.
The defendant lived in a rent controlled flat which she left in 1970 when the claimant
purchased a house for her and her children. The relationship ended and in 1973, the claimant
offered her £4,000 to vacate the premises. She refused claiming that she was entitled to stay
in the house until her children completed school. The court of appeal would have permitted
her to stay but she had been re-housed by the local authorities before the appeal. The
defendant's remedy was compensation for the loss of the license which was quantified at
£2,000.

Injunction
The normal way of protecting a contractual licensee against improper revocation is by issuing
an injunction to restrain the breach by the licensor. A number of concerns arise. For instance,
it was said in 1915 in connection with Hurst's case that "an injunction would be a useless
remedy unless a chancery judge was sitting at your elbow" because the breach and ejection
would take place before the injunction could issue.
However, the court will treat the license as not revoked in circumstances in which an
injunction would issue and this would prevent the licensee from being a trespasser. As has
been seen, monetary compensation was awarded in Tanner v Tanner (1975) where it was no
longer practical to issue an injunction. Moreover, a mandatory injunction may be obtained in
a suitable case to enable a licensee to re-enter. See the case of Luganda v Services Hotels Ltd
(1969)

Specific Performance
The COA had no hesitation in holding in Verrall v Great Yarmouth Borough Council (1981)
that a contractual license was enforceable by specific performance. The facts of the case were
that the National Front entered into a contract in April 1979 with the council to hire a hall for
a conference. In May 1979 after local authority elections, the new labor-controlled council
purported to revoke the license on the ground that the front's extremist stance would create
unrest in the borough. Specific performance for the contract was granted. The old argument
that a license can be revoked by the licensor on payment of damages was firmly and finally
disposed of. The National Front was entitled to the benefits of the contractual license. The
issue of an order for specific performance raised a number of questions of principle.
It used to be said that specific performance would not issue in relation to a transient matter
because the issue may not come to court in time. That view was held to be out of date. It is
the duty of the court to protect [where it is appropriate to do so] any interest whether it be an
estate in land or a license by injunction or specific performance as the case may be. See the
Verrall Case. Such an approach is consistent with the court's power to grant a prohibitory
injunction to restrain the wrongful revocation of a contractual license or to grant a mandatory
injunction to reinstate a licensee whose license has been revoked in breach of contract.