Zambia has a dual land tenure system, being state tenure and customary tenure. Under state land, a person can be granted a leasehold interest of either 99 years, known as the presidential lease, or 100 years known as statutory lease, both renewable, evidenced by a certificate of title. Conveyancing under state land begins with contract of sale between the vendor and the purchaser, stipulating the agreed terms for the conveying of the interest. Once the contract of sale is executed, the next stage is to obtain consent to assign in compliance with the provisions of the Lands Act, CAP 184, followed by payment of property transfer tax in line with the provisions of the Property Transfer Tax Act, CAP 340. Once a tax clearance certificate has been duly issued by the Zambia Revenue Authority, an assignment deed, a legal document prepared by the lawyers conveying the land from the vendor to the purchaser, must then be lodged in the deeds registry of Ministry of Lands as provided by the Lands and Deeds Registry Act, CAP 185 of the Laws of Zambia. Once registered, a new title in the name of the purchaser is issued, completing the conveyance process.
While the above process is very important, the reality is that it only applies to 6% of land in Zambia, as the bulk of the land in Zambia is under customary tenure, representing a humongous 94% of the total land. This entails that anyone trying to acquire land in Zambia has a chance of encountering customary tenure and some basic idea about how to safely acquire land under customary tenure becomes very useful. Because there is no central registry for customary land, which is administered by traditional authorities, the following five pointers can be useful in successfully acquiring land subject of customary tenure, thereby reducing legal challenges:
The agreement to buy land must be in writing
It is a legal requirement, founded on the Statute of Frauds 1677, an English Statute applicable to Zambia that any transaction for the sale of land must be evidenced by a note or memorandum in writing, as a precondition for their enforceability in the courts of law. Therefore, at a minimum, similar to state tenure, a conveyance of traditional land must begin with a legally enforceable written agreement between the seller and the purchaser. The written agreement must not only specify the terms of the agreement but most importantly the location of the land and the extent of the land.
Involve independent witness, to the signing and identification of the land.
Traditionally, for anything to be readily accepted by all must be a ceremony. Therefore, make your purchase of traditional land a ceremony to enhance the chances acceptance by all concerned in that society. Ensure that the written document is witnessed by other persons in the village or area, and not just immediate family members of the vendor. The witnesses must not just witness the signing of the agreement, but also the actual piece of land and its dimension. Independent witnesses also hedge against encroaching into other people’s land, in addition to being a due diligence safeguard, as few people would want to openly support an illegality in broad daylight.
Notify the Headperson and be entered in the village register
All traditional land, though vested in the Republican President is actually under the custody of the area traditional chief, who is represented by the headman or woman at village level. To complete the purchase, the transaction must register with the area headperson, and the purchaser’s name duly registered into the village register to signify that the local custodian is fully aware of your interest as a purchaser. Additionally, this step helps to confirm the authenticity of the land being sold.
Record with the area chief
As already indicated, the ultimate custodian of the customary land is the area Chief, and following your entry into the village register, check that your record is transmitted to the area Chief. This step will also help you at a later stage, should you decide to covert to state tenure, as the Chief’s endorsement is a precondition for any such conversion.
You are truly not secure, unless you are actually on the land. This means you must begin working the land, either farming or clearing or doing something which signifies your presence thereon. Legally, another person cannot take a better interest over that land as they are mandated to carry out an investigation to ascertain your interest. If you are not in possession of the land, a third party may take a better interest than you, provided they are unaware of your interest, likely to happen when you are not in possession. This also reduces chances of encroachments with other land owners.
These steps will help greatly to successfully acquire an interest in land subject of customary tenure, before you decide to convert the same interest to customary tenure, a topic we shall address separately later.
Equitas Legal Practitioners
Client Legal Alert – Equitas Legal Practitioners@2022
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