Rights of squatters in Tanzania. By Johnson Yesaya

 PRELIMINARY

The land in Tanzania is governed by two regimes, statutory and customary laws, the statutory laws are contained in Land Act  and the framework of customary law is contained in Village Land Act . The right of land occupancy is derived from both statutory and customary laws where individuals can occupy land either as “granted land right of occupancy” or as “ deemed land right of occupancy”. In Tanzania “granted right of occupancy” means, a right to own land according to national law and statute provisions particularly Land Act. All lands which are surveyed and registered under Land Act and Land Registration Act are occupied under granted land right of occupancy. The granted rights of occupancy is to be granted by the president, in general or reserved land, of the land which has been surveyed, and been registered under the land registration Act.

Customary or deemed right of occupancy “means” a right of occupancy created by means of the issuing of a certificate of customary right of occupancy under section 27 of Village Land Act and include deemed right of occupancy. 

Deemed right of occupancy means the title of a native Tanzanian citizens of using or occupying land under and in accordance with customary law. Deemed right of occupancy can be acquired through inheritance, clearing a virgin land, gift, inheritance and held by villagers. It is important to understand that the tenure that applies in rural areas is customary tenure. Such tenure include rights allocated by village councils and customary rights which are not allocated by the village council. Such rights are more informed and can be acquired through the means stated above. 

The concept of squatting developed from illegal possession and use of land. Squatting is not recognized as a right of occupancy rather than being a trespass. Squatting or 'adverse possession' as known in legal profession- refers to the act of an individual deliberately entering property (or land) which they do not own, occupy or posses and without consent from the legal owner (ie trespassing), with the intention of establishing settlement there.  Squatting may gain validity if legal owner of land fails to evict trespassers within a legal time. Individuals who enters land as tenants under permission of owner and later fails to pay rent as agreed, their time exceeded rent cannot be considered as squatting because there was consent prior entering the land.

RIGHTS OF SQUATTERS IN TANZANIA

Squatters have a right to apply for right of occupancy. In Tanzania, the squatters who have resided on lands which they don’t occupy for more than twenty years without any disturbance from the legal owner are entitled right to apply the right of occupancy basing on the duration they resided on that particular land where legal owner showed no interests to evict them. Section 37(1) of The Law of Limitation Act  provides that, 

“  Where a person claims to have become entitled by adverse possession to any land held under a  right of occupancy or for any other estate or interest,  he may apply to the High Court for an order  that he be registered under the relevant law as the holder of the right of occupancy or such other  estate  or  interest,  as  the  case  may  be,  in  place  of  the  person then  registered  as  such  holder,  and the High Court may, upon being satisfied that the applicant has become so entitled to such  land, make an order that he be registered accordingly, or may make such other order as the High Court may deem fit.”

In some circumstances, citizens who occupy land under deemed right of occupancy are considered as squatters when authorities declares customary land as urban planning area, in this situation, those who used to occupy those customary land are given first priority to apply the occupancy of the same land under granted right of occupancy. 

Section 72(1) of The Land Registration Act  also recognizes adverse possession. Any  person  who  claims  that  he  has  acquired  any  estate  in  any  registered land  by  adverse  possession  or  by  reason  of  any  law  of  prescription  may apply  to  the  Registrar  in  the  prescribed  manner  for  registration  of  his estate  or  interest.

Squatters have a right to compensation. Squatters are entitled a right to compensation when they get affected by orders of authorities in urban planning and survey. The extension of cities which interferes lands of squatters who has gained legality to occupy a certain land must go together with compensation since squatters have already gained ownership of land.

In Metthuselah Paul Nyagwaswa v. Christopher Mbote Nyirabu  it was stated that, “ after an area is declared urban planning area, a squatter or a person holding title under customary law continues to enjoy some rights, e.g. compensation but this was not superior to that of a holder of right of occupancy. Squatters have a right of facing authorities for fast registration if they comply with set down rules. If they do not do so and someone is granted the plot, they can only be compensated for unexhausted improvement”.

The compensation is only pay-able to affected squatters who were former owners of land under customary land of occupancy before urban planning. Squatters who were not former owners of land under customary ownership or granted right of occupancy are not entitled to compensation.

In Rashid Makwamba & 1016 others v. Kilombe  villagers invaded and occupied a piece of land for several years. It was later discovered that, a particular piece of land was under occupancy of one legal person who had a title to land. The villages disputed a claim on a ground that they have stayed on land for long time without disturbance from the owner. The court held that, they were squatters who trespassed private property and had no right whatsoever but to vacate the area. A clear distinction between the two types of squatters was put by Twaib , who stated that, a person on land without tenurial rights is a squatter per se, not entitled to compensation and his or her occupation is merely permissive, he or she therefore having no right to continue staying on a piece of land after it has been allocated to someone else.

A right to be given notice before eviction. Squatters and tenants are protected by the law and they cannot be evicted illegally. Issuing notice to trespassers or tenants who have failed to pay rent is a prior step in handling land disputes and no alternative to that. A land owner cannot forcefully evict a squatters or tenant without prior issuing notice requiring a squatter to vacate. Failure to abide to a issued notice by a squatter attracts action before land tribunals and forceful eviction when squatter resists to abide to decision of the land tribunal.

A squatter is to be evicted peacefully and legally without violence or the threat of violence. To evict trespassers legally, a land owner is required to involve local authorities who will accompany him to the property to ask the squatter to vacate (orally or with notice). If the squatter does not follow the eviction notice by the date they are ordered to vacate the premises, The next step is to file a suit before land tribunals basing on the pecuniary value of the subject matter.  Both parties are required to attend the tribunal sessions but if the squatter does not show, the chairman of the tribunal will most likely rule in favor of the plaintiff. If that happens, the police will be ordered to forcibly evict the squatter from the premises.

If the evicted squatter left belongings on land of the applicant, then that particular applicant may ask a tribunal to deal with assets left, either to allow that evicted squatter to collect his belongings or as it will be deemed fit basing on the situation of the matter.

Issuing of notice is a standard procedure in all civil matters, a notice of claim is issued to another party to inform him/her the claims of a party made that particular notice. It is procedural impropriety to institute a suit or to take any action on a property prior issuing notice. A notice must give full details concerning a claim and steps that he/she required to take against a party who served him a notice.

A right to be considered first in allocation of land. In case squatters invaded an abandoned land, made improvements and resided there for longtime on a land with no customary or granted right of occupancy, when time comes to survey land for residential purposes by government authorities, the residents there will have first priority to be given occupancy of the land they formally resided if they conform to the requirements of the law.

Squatters have no rights on land legally occupied by a third party even if they have resided for so long on a land. They only get relief to lands abandoned, un-used and which are not legally occupied by other parties. Living on a land of another for so long do not transfer ownership to that another person who have resided on that particular land. It is advised to occupiers of land to take action against Intruders on his land within legal timeline to avoid automatic transfer of right of occupancy basing on a principle of adverse possession.

It is an offence for squatters to invade public land designated for public purposes or open spaces intentional left for special public activities. Squatters are not entitled to any right when they interfere road spaces, national parks and game reserves, and spaces left for construction of public infrastructures.

A right to social services. Tanzania put in place, for the first time, the National Land Policy  as a policy framework upon which new land statutes should be modeled, and all personnel exercising powers under, applying or interpreting the laws should have regard to. The National Land Policy state that; 

“(a) The existing [squatter] areas will not be cleared, but will be upgraded and provided with facilities for adequate sanitation and other services except for unplanned housing in hazardous areas . (b) Residents in unplanned urban settlements shall have their rights recorded and maintained by the relevant land allocating authority and that record will be registered.” 

The National Land Policy provides security to already established squatter areas where there residents and their economic activities. The policy guarantees that, the existing squatter areas will not be cleared, but will be upgraded and provided with social facilities like roads, schools, hospitals and markets. This disclose that, the squatters have right to social services if their residential areas are not in hazardous land, they are entitled to social services and security as other citizens of Tanzania.

CONCLUSION

The main aim of squatters’ rights is to prevent the use of vigilante justice. If land owners were authorized to use violence or the threat of violence to evict a squatter, the situation could become dangerous and worse. Moreover, it would create an environment of vigilante justice that could spread into other areas of life, reducing the safety of society that people have generally come to expect from their residential areas.

Squatters have rights so that justice can be done. It’s very close similar to tenants’ rights that secure a renter from an unscrupulous landlord. Both land owner and squatters have rights so as justice can be facilitated and to avoid application of vigilante justice.

REFERENCE

STATUTES

The Village Land Act Cap 114 of 1999

The Land Act Cap 113 of 1999

The Land Registration Act cap 334

The Law of Limitation Act cap 89

BOOKS

W.R.Tenga & Sis J.Mramba, Manual on Land Law and Conveyancing in Tanzania, Dar-es-salaam 2008

P.Laurencio, Basic principles of modern land policy and law in Tanzania, Dar es salaam. 2000

CASE LAWS

Metthuselah Paul Nyagwaswa v. Christopher Mbote Nyirabu, (1985) TLR 10

Rashid Makwamba & 1016 others v. Kilombe, Land case  No. 15 of 2003, High Court of Tanzania (Land Division) at Dar es Salaam (unreported).

ONLINE SOURCES

https://www.tanzanianweb.co.tz/2016/11/tension-between-customary-right-of.html?m=1

https://www.rocketlawyer.com/gb/en/quick-guides/squatters (Accessed June 9 2021)