Possible grounds for grant of co-occupancy to non-spouses in Tanzania.

INTRODUCTION

As per section 159(1) of the Land Act[1], “co-occupancy means the occupation of land held for a occupancy right of occupancy or a lease by two or more undivided shares and may be either joint occupancy or occupancy in common”. Co-occupancy is the situation where two or more people occupy land together and have interests on that particular piece of land. Co-occupancy may arise when two or more people share a common interest in the land, or where they have a legal or customary right to occupy the land together. In Tanzania, co-occupancy can arise in several ways. For example, it can arise when family members occupy land together, or where multiple tenants share a single rental property hence, they all together assume ownership of a property as per the period indicated in rental instrument. The Land Act of Tanzania recognizes the legal rights of co-occupants to share land, subject to any restrictions or conditions imposed by law. However, it's important to note that, one of the co-occupants cannot sell or transfer their rights to the land without the consent of the other co-occupants. As per section 159(1), co-occupancy is divided into two; joint occupancy and occupancy in common.

Joint occupancy is when two or more individuals hold an undivided interest in land as co-owners. Each co-owner has an equal right to occupy and use the land, and each co-owner is responsible for a proportionate share of any expenses related to the land co-owned, such as taxes, maintenance, and improvements. The right of survivorship applies in joint occupancy[2]. When one co-owner dies, their interest in the land automatically passes to the surviving co-owner(s) without the need for probate. On other hand, occupancy in common is when two or more individuals hold an undivided interest in land, but the interests may not be equal. Each owner has the right to occupy and use the land in proportion to their ownership interest, and each owner is responsible for a proportionate share of the expenses related to the land, such as taxes and maintenance. Unlike joint occupancy, occupancy in common does not provide for the right of survivorship, which means that if one owner dies, their interest in the land does not automatically pass to the surviving owner(s). Instead, the deceased owner's interest will be distributed according to their will or basing on probate enactments such as the Probate and Administration of Estates Act[3] and customary laws.

Even though co-occupancy is allowed by our laws, only spouses have automatic right to own land in joint ownership, while other people who are not spouses may own land jointly, but must prior obtain leave of the court as provided under sections 159(8) of the Land Act. Other people who are not spouses, may choose to own land in common where leave of the court will not be necessary, but if they want to own land jointly, the court must grant leave to that effect. There are possible grounds that, other people who are not spouses may own land in joint ownership as described hereunder;

POSSIBLE GROUNDS FOR GRANT OF CO-OCCUPANCY TO NON-SPOUSES

Joint venture or business partnership is among possible grounds for granting co-occupancy to non-spouses. Joint venture or partnership is a type of business arrangement in which two or more parties come together to undertake a specific business project or activity. Under a joint venture, each party contributes resources, such as capital, skills, or expertise, to the project, and shares in the profits and losses of the venture. Under section 19(1) of the Land Act[4], joint co-occupancy may be granted to individuals who are engaged in a joint business venture or partnership. For example, if two individuals are starting a business that requires the use of a particular piece of land, they may apply for joint co-occupancy of the land. In such a case, the application should specify the purpose of the joint co-occupancy, the period of the occupation, and the intended use of the land.

In Oysterbay Villas Limited v. The Kinondoni Municipal Council[5] the plaintiff entered into contract of erecting apartments at two different defendants’ plots, one situated along Ruvu road and another at Mawenzi Oysterbay area in Kinondoni Municipality. Their joint venture agreements stipulated that, after completion of construction, a defendant will have to change ownership to joint ownership where a plaintiff will be entitled to 75% of interests to the plaintiff and 25% to a defendant. When plaintiff completed erection of buildings, a defendant rejected to comply to the agreement and started to push change of terms of the former agreement. The plaintiff offended and sued the defendant, the court ruled in favor of plaintiff that, since parties agreed to change the ownership of land after completion of construction, then a defendant was in default by rejecting performing contractual duties. Hence the court ordered a defendant to apply before commissioner for land, to change a suit land from previous ownership to joint or common ownership.

Another ground for the grant of joint co-occupancy to non-spouses is the existence of a common interest in the land. For instance, if two siblings inherit a piece of land from their parents, they may apply for joint co-occupancy of the land. In this case, the application should demonstrate that the siblings have a common interest in the land, such as a shared desire to maintain the family heritage or to use the land for agricultural purposes.

In the case of Mrs Razia S. K Janmohamed v. Mr Ramzanali Kassam Janmohamed and another[6], the plaintiff who was a widow of a deceased Sandrudin Kassam Janmohamed sued two young brothers of her husband on grounds that they were trying to evict her from her land and they were convincing a registrar of title to change the names of the title deed of a suit land so as to deny her a right of ownership which she claimed entitled. The defendants were also claiming to be entitled a right over a suit land because a deceased was not a sole occupier of the land, but they were joint occupiers and in joint right of occupancy, when one occupier dies there is no right of succession to the survivors of the deceased, but the remaining co-occupiers takes the possession of the entire land automatically. The issues raised before court was whether plaintiff and co-defendants are entitled to any right of occupancy of a suit land. The court found that, the title deed had three names of both plaintiff and a deceased and they were both entitled 1/3 of the interest on land.

A non-spouse may be granted co-occupancy rights under a lease agreement. In Tanzania, land can be leased for up to 99 years, and the lease agreement may provide for co-occupancy rights for non-spouses. A lease agreement is a legal contract between a landlord and a tenant, where the landlord grants the tenant the right to occupy and use a specific property for a specified period of time in exchange for rent payments. While lease agreements are typically between a landlord and a tenant, it is possible for multiple individuals to become co-occupants of land if they are all lessees under the same lease agreement. For example, if a landlord leases a piece of land to a group of friends to use as a communal garden, each individual lessee would have the right to occupy and use the land for the specified period of time. In such a case, the lessees would be considered co-occupants of the land, as they each have a legal right to use the land for the duration of the lease agreement[7].

However, it is important to note that the extent of each lessee's rights and obligations in relation to the land will depend on the terms of the lease agreement. The lease agreement should specify the purpose for which the land will be used, the duration of the lease, and the responsibilities of the lessees, such as the obligation to maintain the land or to pay rent. The lease agreement may also address issues such as the allocation of specific areas of the land to each lessee, or the process for resolving disputes between the co-occupants.

CONCLUSION

Co-occupancy of land can be granted to non-spouses in Tanzania under two forms; joint tenancy or occupancy in common. In the case of joint tenancy, each co-occupant has an equal and undivided interest in the land, while in the case of occupancy in common, co-occupants have a separate but undivided interest in the land. This means that each co-occupant has the right to use and enjoy the land, but they are not mandatorily required by the law to use it equally or in the same manner as the other co-occupants. Unlike joint tenancy, there is no right of survivorship in occupancy in common. Instead, each co-occupant's interest in the land passes to their heirs or estate upon their death.

However, it is important to note that joint co-occupancy of land can be complex and may give rise to legal issues if not properly addressed. This is because it involves multiple individuals sharing ownership and responsibility for a piece of land. This can create situations where co-occupants may have conflicting interests about their rights and obligations. For instance, disputes can arise over how the land is used, who among co-occupants is responsible for maintaining it, and how profits or losses are distributed among several co-occupants. Without clear legal agreements and procedures in place, these issues can escalate and lead to costly and time-consuming legal battles. Therefore, it is important for individuals seeking joint co-occupancy of land to take the necessary legal steps to avoid misunderstandings and disputes.

 

 

 

 

 

 

REFERENCE

STATUTES

Land Act [Cap 133 R.E 2019] s.159

Probate and Administration of Estates Act [Cap. 352, R.E 2002]

 

CASE LAWS

Mrs Razia S. K Janmohamed v. Mr Ramzanali Kassam Janmohamed and another, Lan Case No 24 of 2015

Oysterbay Villas Limited v. The Kinondoni Municipal Council, commercial case no.88 of 2011

 

OTHER SOURCES

Tanzanianweb, “What is the difference between Joint Tenancy and Tenancy in Common?” https://rb.gy/1d77a Accessed May 11, 2023.

Victory Attorneys, “co-onwership of land in Tanzania” https://rb.gy/e1koi access May 12, 2023.

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[1] Land Act [Cap 133 R.E 2019] s.159

[2] Tanzanianweb, “What is the difference between Joint Tenancy and Tenancy in Common?” https://rb.gy/1d77a Accessed May 11, 2023.

[3] Probate and Administration of Estates Act [Cap. 352, R.E 2002]

[4] ibid

[5] Oysterbay Villas Limited v. The Kinondoni Municipal Council, commercial case no.88 of 2011

[6] Mrs Razia S. K Janmohamed v. Mr Ramzanali Kassam Janmohamed and another, Lan Case No 24 of 2015

[7] Victory Attorneys, “co-onwership of land in Tanzania” https://rb.gy/e1koi access May 12, 2023.