CHAPTER THIRTEEN

Covenants and Dispositions Affecting Land

13.0 Introduction
This chapter deals with covenants and disposition that can affect land in Tanzania
Mainland. It provides the covenants that run with the land and as benefits or
burdens, and outlines the essential requirements for an effective disposition.
Essentially, land may be disposed of in a variety of ways. Disposition here is a broad
term which encompasses sale, exchange, transfer, grant, partition, lease,
assignment, surrender, or disclaimer and include the creation of an easement, or
any other servitude, usufructuary right or any other interest in a right of occupancy
or a lease and any other act by an occupier of a right of occupancy or lessee which
can affect his rights and any agreement that gives rise to such disposition.1 Thus
disposition include any of the forms or mechanisms under which land or interest in
land can change hands (e.g between the occupier and any interested party). Part
VIII of the Land Act deals with dispositions affecting land by providing rules that
regulate dispositions of land (other than village land) in Tanzania. In particular
section 61 of the Land Act provides that no disposition other than customary right of
occupancy can be carried out without complying with the provisions of the Land Act.

13.1 Requirement for Consent/Approval

Generally, disposition of a right of occupancy does not require the consent of the
commissioner or authorised officer2 but notification.3 Notification to the
Commissioner is made before or at the time the disposition is carried out.4 On
receipt of a notification under subsection (3) and the payment of all premia, taxes
and dues the Commissioner is required to endorse the notification with his signature

1
See section 2 of the Land Act on the meaning of disposition.
2
Ibid section 36
3
Ibid section 36(3)
4
Ibid section 36(3)
and official seal and send or deliver a copy to the registrar.5 The Commissioner may
ask the parties to a disposition which he has reasonable cause to believe that it is
about to take place or has taken place but which he has not received a notification,
of the need to make notification or stop them from proceeding with the disposition
unless they have delivered to him information about the disposition or apply for
approval.6 The commissioner after receiving the notification may also issue the
parties a notice requiring them to submit additional information or apply for
approval.7

The Commissioner may apply to the Registrar of Titles to enter injunction under
section 79 of the Land Registration Act for rectification of the land register or enter
an injunction to prevent a disposition from taking place or issue notice or require the
parties to a disposition to appear before him and give an explanation of the
circumstances of the disposition. This can arise where a disposition has been or is in
the process of being or is likely to be affected by fraud, or undue influence, or lack
of good faith, or the fact that one party appears to have taken unfair advantage over
another party to the disposition or that the disposition, not being a gift, is not for
value.8 The commissioner may only apply to the registrar to enter injunction under
section 79 of the Land Registration Act if the disposition has taken place and not
more than two years have elapsed since the conclusion of the formalities necessary
to complete the disposition.9 It is only when the registrar receives a copy of the
notification dully endorsed, that he can make entry on the register in respect of that
disposition.10

However according to section 37(1) of the Act the commissioner can also approve
categories of disposition and any failure to obtain such approval renders the

5
Ibid section 36(4)
6
Ibid section 38(2) (a) &(b)
7
Ibid section 38 (1) (a)&(b)
8
Ibid section 38(3)
9
Ibid section 38(3)(a)
10
Ibid section 36(5)
disposition inoperative or ineffectual.11 It would seem that approval under the Act is
not intended to be restrictive but a mechanism to ensure all necessary formalities
are complied with. In particular, where the assignment of right of occupancy granted
to the assignor is less than 3 years from the date of the grant it must be approved.12
On the contrary the granting of a loan on the security of a mortgage and the
exercise of the mortgagee’s remedies to dispose a right of occupancy or lease upon
default by a borrower does not require approval.13 Where the Commissioner
reasonably believes that a disposition is about to take place below the market value
in order to evade the need for approval, he may take actions against the concerned
parties.14 According to section 39(1),15 an application for a grant of approval for a
disposition is (a) made on a prescribed form; (b) signed by all the applicants; (c)
accompanied by any information prescribed or which may be required by the
Commissioner; and (d) accompanied by prescribed fees. One application may be
made for a grant of approval for two or more dispositions and where that application
is made, in such a case the provisions of section 39 applies to each disposition as if
a separate application had been made in respect of each disposition. The
Commissioner may grant the applied approval upon conditions or refuse to grant
approval to the application.16

A grant of approval is signified by a certificate known as certificate of approval. The

certificate is personal, not assignable and valid for one year from the date it was
granted.17 A person who has received a certificate of approval must pay all premia,
taxes and dues as required a failure of which renders the disposition invalid or
ineffective to transfer any interest in the land or give rise to any rights in the
transferee.18 The Commissioner or authorized officer must endorse and sign a

11
Section 37 (5) of the Land Act; See also Z Gondwe, Manual for Transfer of R/O Chapter 3, See further
Regulations 3 and 4 of the Land (Disposition of R/O) Regulations 2001 GN No 74/2001, made under sections
37 and 38 of the Land Act describes applications that require approval and those which do not require approval.
12
Land Act, section 37(2)
13
Ibid section 37(3)
14
Ibid section 37(4)
15
Ibid
16
Ibid section 39(5)
17
Ibid section 39(6)
18
Ibid section 39(8)
receipt for that premium, tax or due on the certificate of approval.19 The Registrar
cannot make any entry on the register in respect of any disposition or any right of
occupancy the subject of a disposition unless he is satisfied that all premia, taxes
and dues in respect of that disposition have been paid and a receipt for the same
has been validly endorsed on the certificate of approval.20 However, the requirement
for approval under the Land Act does not absolve an occupier other requirements to
obtain consent, approval, permit, licence, or other authorisation in respect of that
disposition or use and development of the land to be acquired under any other
law.21

Under certain circumstances the commissioner can approve the sale of a bare land if
such sale complies with the provisions of section 9 of the Land Act.22 Such a sale
must be made to a citizen of Tanzania. Where the land has been granted upon
conditions, the purchaser must agree to comply with development conditions to
make the sale lawful. Such sale can be by auction or tender, and it can be of a
mortgaged land or as the case may be.23

13.2 Effective Dispositions

In order for a disposition to be effective it must meet certain requirements. These
are:- (i) to be undertaken on the prescribed forms specified for such disposition (for
contracts it is optional),24 (ii)to be registered under the relevant law unless
exempted (i.e contract for a disposition under the Act),25 (iii) to be executed through
signing or affixing thumbprint or other mark on it as a personal evidence of his
acceptance save for organizations which may follow the procedure stipulated their
constitutions,26 and (iv) to be in writing. For contracts of disposition of a right of

19
Ibid section 39(9)
20
Ibid section 39(10)
21
Ibid section 37(6)
22
Ibid section 37(8)
23
Ibid section 37(9)
24
Ibid sections 62 (1) and 64(2)
25
Ibid section 62 (2) (3) and (4)
26
Ibid section 63 (1)-(3)
occupancy, derivative right or mortgage, the contract has to be in writing or there
has to be a written memorandum of its terms27 (evidence in writing).28

However, the requirement of writing is not a pre-requisite and does not affect
certain dispositions. The dispositions are:- (a) short term lease, (b) disposition by
order of a court, (c) disposition by operation of law,29 (d) creation or operation
resulting from implied or constructive trust, (e) the making or operation of a will,
and (f) an arrangement recognized by customary law for the temporary disposition
of customary interest in land.30

13.3 Void and Ineffectual Dispositions

Any disposition which does not comply with the provisions of the law becomes
ineffectual to create, extinguish, transfer, vary or affect any interest in land. Apart
from the use of the word ineffectual other related words used in the Act are void31
and inoperative.32 Essentially, the word void signifies that the transaction is as good
as nothing. But ineffective and inoperative dispositions signify that the transaction is
invalid for short of some requirements which if accomplished will be operative to
create an interest. According to the case of Consider the case of Alibhai Aziz vs
Bhatia Brothers Ltd33 ‘…a contract for the disposition of land, which otherwise is
proper but for the lack of required consent, is inoperative, that is, unenforceable to
the extent that such enforcement is prejudicial to the interests of the paramount
landlord. However, where such enforcement is not thus prejudicial, a party who has
performed his or her part of the bargain may be assisted by the court to enforce the
contract against the defaulting party. So a party who defaults to submit a written
contract for consent or refusal by the specified authority may be compelled to do so
if the other party has performed his or her part of the bargain. Of course where such
consent is sought and is refused, the contract becomes wholly unenforceable,
27
In Patterson and another v Kanji (1956) E.A.C.A. 106 ... in order to prevent fraud, certain transactions had to
be evidenced by writing, otherwise they were of no effect…’
28
Land Act, section 64(1)
29
Ibid section 64 (4)
30
Ibid section 64 (5)
31
Section 37(8) and (9) and section 36 (1) (b) of the Land Act
32
Section 37(5) of the Land Act
33
(Misc Civil App No 1 (1999) CA
though valid, and any expenses incurred by the parties may be recovered by legal
action, if necessary.’

Furthermore according to section 36(1)(b) all dispositions which do not comply with
the requirements of sections 37, 38, 39 and 40 are void while under section 61 (1)
any disposition which does not comply with the provisions of the Land Act is
ineffectual to create or transfer an interest in land. This latter requirement goes
hand in hand with the need for registration under section 62(2) of the Land Act. It
would therefore appear that while section 36(1)(b) is specific to certain specified
scenarios, section 61(1) is a general provision which apply to all dispositions. Also it
would seem that it is only those requirements under sections 37, 38, 39 and 40 that
render a disposition void while any other failure makes it ineffectual. As for
inoperative dispositions it is apparent that any void transaction is inoperative so do
ineffective dispositions. If a disposition only comply with section 36 without
complying with section 61 therefore, it will be ineffectual but emphasize on
compliance with section 61 will automatically meet the requirements of section 36
because it is part of the overall requirements for an effective disposition.34

13.4 Implied Covenants

Generally, a covenant is a promise contained in a deed and includes a enforceable
agreement. According to section 66 of the Land Act, certain operations or
dispositions are accompanied with implied covenants. Such operations or
dispositions include: - those that transfers or sells a right of occupancy in land, and
those that creates, transfers or assigns a lease.

The implied covenants are:-

1) dispose with the interest,
(i) of all rights...related to the enjoyment of the interest;
(ii) easements …connected with the interest; and

34
See more discussion on the following chapter
 (iii) appurtenances belonging to the land, or the interest being
conveyed or usually held or enjoyed with the land or the interest
being conveyed. This covenant does not give the transferee a
person a better title to any interest in land than the title
obtained through the disposition.
2) Protection from the effects of notice of any instrument, fact or thing. (e.g
information in a register, apparent fact or visible things related to the land).

3) The transferor/grantor/assignor enters into covenant with the transferee/

grantee/ assignee on certain aspects. That:-

(i) the transferee, grantee, assignee or lessee has the right and the power to create,
transfer or assign that interest free of all encumbrances except interests specified.
(ii) the transferee, grantee, assignee or lessee and all persons claiming under him
will enjoy quietly the interest without disturbance by the grantor, transferor,
assignor or lessor or all persons through whom that person (grantor, transferor,
assignor or lessor) derives title; (iii) the grantor, transferor, assignor or lessor will,
do all acts and execute all documents for ensuring better title to the interest as that
person (transferee, grantee, assignee or lessee) may reasonably require from time
to time at his request and expense; (iv) all rent due under the right of occupancy or
lease, (including a superior lease) have been paid and all covenants and conditions
contained in it have been performed and observed.35 Except for the covenant in (3)
(i) above all the other covenants bind the transferor.

13.4.1 Exclusion of Implied Covenants

Implied covenants may be rendered inapplicable if the facts below are not
proved.
(i) There was notice (information) in that person's knowledge or notice would
have come to that person's knowledge if any inquiries and inspections had
been made which ought reasonably to have been made by that person
(Constructive Notice).

35
Land Act, section 67
 (ii) Notice, (information) came to the knowledge of the person's advocate or
agent or if the advocate or agent would have got the information had he make
inquiries as ought reasonably to have been made by that advocate or agent
(Imputed Notice). This latter exception does not exonerate a person from any
liability arising from instrument under which his title is derived.

Readings
MEGARRY'S Manual of the Law of Real Property, Sixth Edition, Stevens & Sons,
London, 1982, Chapter 9& 12
Riddal (l983), An introduction to Land Law, Third Edition, Butterworth’s, London,
Chapter 12 & 21