real property law in uganda-libre (1)
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REAL PROPERTY LAW IN UGANDA: Selected Topics, with Cases
Tonny Okwenye
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Latin phrase
cuius est solum, eius est usque ad est usque ad coelom et ad infer os
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Content Torrens System Legal and equitable interests Easements and profits Leases and tenancies Licenses Privity of estate and contract Expropriated properties Mortgages
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TORRENS SYSTEM
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Introduction Originated from Australia System of registration of interests in land
introduced by Sir. Richard Robert Torrens Major purpose was to enable easy land
conveyancing and to save costs spent in investigating titles
Registration of Titles Act (RTA) is the principle law on registered land (S.2 of the RTA).
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Basic elements The Office of titles The Register Indefeasibility of title except for fraud Unregistered interests Caveat
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O fice of registrar of titles Handles land registration,
land registry.
S.3(1) of the RTA provides of a registrar of titles Provides for appointment
also known as the
for the
appointment
of a deputy registrar of titles and other assistant registrars as required
All are public servants
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The register S.37 of the RTA - Registrar to keep a register book which will contain all titles and particulars of land dealings in their priorityBook may be kept in loose leaf or parts relating to district, county, sub county or convenient area.
S.54 of the RTA - An unregistered instrument is incapable of transferring any interest or estate in the landS.59 of the RTA - the certificate is to be conclusive evidence of the title
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the Register Souza V Moorings Hotel Co. Ltd (1960) Facts : The Respondent let premises to the Appellant under a sub lease, however the
instruments weren t registered. Respondent then brought proceedings to recover the outstanding rent.Issue : What is the effect of the unregistered
agreement between the parties.Held : No interest or estate in land can be created or transferred by an unregistered instrument. However, it can be enforced as a contract between the parties.
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Indefeasibility of title except for fraud Fraud is the most important exceptional to
indefeasibility of title. S.77 of the RTA - Certificate void for fraud
against parties to the fraud. S.64(1) of the RTA - the title of a registered
proprietor is paramount except for fraud
the
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other exceptions Other exceptions include: encumbrances notified on the folium, land
included in the folium by mistake, easements and public rights of way and adverse possessions.
Vital for purchasers to thoroughly survey the land before concluding the transaction.
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indefeasibility of title except fraud
Katarikawe V Katwiremu (1977)
Facts: The Plaintiff bought land from the first Defendant, later discovered that the land Had been transferred to the second Defendant after his sale agreement with the
1st Defendant. 2nd Issue : Whether the transfer to the
fraudulent
Defendant was
2nd Held : Defendant guilt of fraud, transfer to his names void. Fraud involves dishonest dealings in land e.g. depriving a purchaser for value in occupation of the land of his unregistered interest.
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Caveats Lodged against one s title to show interest and to prevent further dealings without the caveator s consent.
must be lodged with the registrar of titles.
One must have a caveatable interest. Caveat must clearly identify the interest to be protected
Does not prove title only maintains the status quoMeant to be temporaryCompensation to be paid to the caveatee incase of wrongful lodging
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Caveats Byes V Gathure (1969)
Facts: The Respondent lodged a caveat against the Appellant s title but didn t sufficiently define the interest claimed.
Issue: Whether the caveat was correctly
lodged. Held: The nature of the registrable interest claimed was not disclosed by the caveat and it should have been rejected by the Registrar.
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Unregistered Interests Includes rights existing under any adverse possession, arising out of a long, un interrupted usage of land.Public rights of way over registered land. No need for a registered interest on long uninterrupted user.EasementsGovernment rights over registered land in respect of unpaid rates.Tenants interests on the land. Environmental
considerations under the National Environment Mana ement Authorit
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Questions Discuss the relevance and applicability of the
Torren system of land registration in Uganda today.
How are un registered interests in land protected under the RTA?
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LEGAL AND EQUITABLE INTERESTS IN LAND
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Legal and equitable interests in land Premised on the doctrine of privity of a
contract Every person who acquires land will be bound
by the legal right regardless of whether or not he has notice of the right Creates rights in rem which will be enforced against the whole world
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Equitable rights Not automatically binding on a successor in
title to the affected land They confer rights in personam Bind all persons except a bona fide purchaser
for value without notice and those claiming under such a purchaser
Referred to as equity s darling
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e quitable interest Katarikawe V Katwiremu (1977) Facts: The Plaintiff bought land from the first Defendant and later discovered that the land
had been transferred to the second Defendant.Held : The Plaintiff acquired rights in equity which were good against all persons except a bona fide purchaser of a registered estate for value.Registered interests are known rights in rem and bind the whole world.
Rights in personam arise from contracts for sale before transfer.
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statutory and common law The position under statute Ss.51, 61, 148-153A RTA Art. 278(8),(9)- Constitution Land Act, S.2, 30-39, 40.
(1996)
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common law Common law doctrine of bona fide purchaser Also known as equity s darling A person who proves he is a bonafide
purchaser of value without notice of the equitable interest can take the legal estate free of the equitable interest.
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e quitable interest - Pilcher v Rawlins Pilcher V Rawlins (1872)
Facts: A legal owner of land was subjected to an equitable mortgage, he created a legal
mortgage suppressed the relevant documents which showed that the land had encumbrance. Second Mortgagee was unaware and had no means of discovering the first equitable
mortgage.Issue : Whether the second mortgagee who had a legal estate took subject to the first equitable mortgagee.
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Pilcher v Rawlins Held : It was void against him, his plea of
purchaser for consideration without notice was an absolute plea to the court s jurisdiction.
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Features of the
doctrine Good faith Bonafide Separate test which has to be passed even
after proof of absence of notice. Purchaser must show that his absence of
notice is genuine and honest.
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good faith Midland Bank Trust V Green Facts: The Father granted his tenant son a 10 year option to buy a farm, option unregistered, father conveyed option to the mother, son sought to register the option.Issue : Whether the son s claim would succeed.
Held : Option was void against the mother who was a purchaser for money. The words in goodfaith related to the notice, absence of notice had to be genuine and honest
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Purchaser The case of Midland defines a purchaser as a person who for
valuable consideration takes any interest in land.
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Notice
Refers to knowledge of an existing fact Rationale is to prevent a buyer of a superior
title from setting it against earlier owners of inferior interests which affect the property.
Buyer of the legal estate with notice of prior equitable interests affecting the estate takes subject to prior equitable interests
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notice Actual Notice. Buyer has actual/express notice at the time of
the purchase Ss.4 RTA - buyer to hold land subject to the
encumbrances notified to the Registrar
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notice Zimbe V Kamanza (1954) Facts: Appellant and respondent both
purchased the
same
piece
of
land,
the
latter
never registered his title while the former did. Registrar didn t show the Appellant that land belonged to the Respondent who sued.
Held : Appellant was entitled to rely on the registrar s revelation and was not entitled to make any further inquiry.
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Constructive notice
Where the purchaser is aware of a fact which should put him on inquiry as to the existence of a right
/title
in
conflict
with
that
he
is
about
to purchase.
Hes presumed to have either made the inquiry and ascertained the extent of the prior right or
have been guilty of a degree of negligence equally fatal to his claimPrior interest in land should always be considered
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Imputed notice May be imputed to the buyer through actual
notice to his agent Agency law - Notice to the agent is notice to
the principal
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imputed notice Sejjaka V Rebecca Musoke (1985)
Facts: Respondent s husband died leaving behind property which a third party acquired through fraud and sold to the Appellant. Appellant argued that he was a bona fide purchaser of value without notice. Issue : Whether the Respondent had notice. Held : Musoke and Co. Advocates who were acting as her agents were aware of the allegedfraud concerning the disputed property.
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bona fide purchaser Modification of common law doctrine By statute Ss.44, 46,51,56,57,61,76,146,189,184
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bona fide purchaser Lwanga V Registrar of Titles (1980)
Facts: Galiwango bought land but died before registering it. Katemba forged a transfer into his names and sold the land to Ssalongo. Galiwango s heir sought the land. Ssalongo claimed to be a bonafide purchaser for value.
Issue: Whether he was a bonafide purchaser for value.Held: He was a bonafide purchaser for value,his title couldn t be impeached, although it was got through fraud unless he was a privy to the fraud.
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EASEMENTS AND PROFITS
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Easements Is the right to use or restrict
person s land in some way.Examples include: 1. Right of way 2. Right of light 3. Right of water
the use of another
Essentials of an easement 1. Existence of a dominant and servient tenement 2. The easement must accommodate the dominant
tenement3. Ownership of the dominant and servient
tenement by different people
4. Easement
must
be
able
to
form
the
subject
matter of a grant
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easements Re Ellenborough Park (1958) Facts: A developer subdivided land and sold it to different
persons leaving an inner portion known as Ellenborough park to be enjoyed by all as a pleasure ground. The government requisitioned the park and paid yearly compensation, which
the plot owners sought, claiming an easement over the park.
Issue : Whether the right accommodated and served the property in question.
Held : There was a sufficient connection as a garden improves residential property, however the finding was only limited to houses close to the park.
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Dominant and servient tenement Servient tenement serves the dominant
tenement which benefits from the easement. Change in ownership of servient tenement
does not extinguish the easement.Hawkins V Rutter (1892) Facts: The Plaintiff had been in possession of the
system layings worth 100litres in York riven for14 years, the Defendant s barge grounded and destroyed
them.Issue : Whether an easement existed. Held : No dominant or servient tenement
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Easement must accommodate the dominant tenement Must confer a benefit on the dominant
tenement Test is whether the easement makes the
dominant tenement a better and convenient place
Proximity of the property is importantHill V Tupper (1863) Facts: Canal owner leased land on the bank of the
canal to Hill, gave him the sole and exclusive right to place pleasure boats on the canal. Tupper then put rival pleasure boats without
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Ownership by different people Cant have an easement over your own land, it s
a hereditament and not an easement. Rationale is that a man can t have rights
against himself.
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Capable of forming the subject matter of
a grant Grantor and the grantee must exist Right being granted must be definite
Must sale
within
one
of
the
definite
Easements like right to water, light, support.
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Creation of easements By statute Express grant or reservation
Implied grant
or
reservation
Prescription
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Express grant/ Reservations Given in writing, no particular words to be
used. Easements aren t future rights S.61,62,98,99 Reservation is a negative action land owner,
reserves certain rights to access his land. Express reservation must also be in writing
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implied grants Barclays Bank V Patel Facts: Land was subdivided, sold to different
owners. Respondent had no access to any public road, no access road existed on the Appellant s land, respondents use of the Appellant s land was interfered with and he
sued.Issue: Whether an easement of necessity would be implied.Held: A way of necessity arose by operation of law on the
subdivision of the property.
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Prescriptions Acquisition of a right because of long
uninterrupted use or enjoyment of that right. Creates an easement; but can be a defence as
well. Limitation Act Ss. 29,32 Ss 6, 7, 8
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Public rights of way Long uninterrupted use by the public is vital. Ngambo Estate and Saw Mills Ltd V Singh saw Mills (1957) Facts: The Appellant used the road across the respondent s estate, the latter then put a barrier on the road. There was cogent evidence by long uninterrupted use by the public.Issue : Whether a public right of way existed. Held : Public right of way existed due to the long uninterrupted use by the public.
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Profits APrendre Means right of taking . Allow the grantee to take away from the neighbour s land other than using itPerson taking profits has a license to come the landCan exist without ownership of the land
Can be legal and equitable
on
Capable of being enjoyed by several persons at
the same timeExamples: Right to graze, right to mine , right to fish, right to hunt wild animals.
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profits a prendre Duke of Sutherland V Heathcote (1892) Facts: The Plaintiff brought an action to restrain
the Defendantfrom working minerals which had been reserved
to him by an earlier agreement.Held : Aright to work mines was not a license but
rather a profitaprendre
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Extinguishment of easement Release by the owner of the dominant
tenement Abandonment of the easementSwan V Sinclair (1924) Facts: The Plaintiff abandoned the use of
right of way for 38the
years, challenged the Defendant s action of erecting a wall across the road way.Held: Easement had been extinguished by the
year abandonment38
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Questions
1. Differentiate between easement and Profits 2. How are easements created3. Discuss the relevance of easements
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LEASES AND TENANCIES
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Leases and
tenancies Leasehold tenure is one where a party grants to another exclusive possession of land in return for rent.
Freeholder gives another the right to use and occupy his land.
Lessor grants the lease while the lessee enjoys the lease.
Full unencumbered title returns to the lessor upon expiry of the lease.
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Nature of leases
Street v Mountford (1985) Facts : Landlord gave tenant license to occupy a furnished room at a fixed rate with exclusive possession, tenant applied for a fair rent, landlord averred that it was a license and not a tenancy.Issue : Whether the arrangement was a license or a tenancy.Held : Tenancy due to the presence of essential
elements of: exclusive possession, for a fixed period of time subject to payment of rent.
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nature of
leases Harvey v Pratt (1965) Facts : Plaintiff and defendant entered an
agreement for the lease of garage premises for21 years, however, no commencement date was stated, defendant never went into occupation
Issue : Whether the lease agreement was valid. Held : Invalid due to the absence of a
commencement date.
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Essential elements
Exclusive possession For a certain period
Payment of
rent.
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Exclusive
possession S.3(5) of the Land Act. Tenant with exclusive
possession able to exercise land owners rights. Licensee without exclusive possession can t call
the land his own.
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exclusive
possession City Council of Kampala v Mukibi (1967) Facts: Plaintiff leased premises to the defendant on condition that they wouldn t be subleased. Defendant allowed hairdressers to use the premises, plaintiff sought to terminate the lease.Issue : Whether the lease agreement had been breached.Held : No breach, defendant had exclusive possession, had retained the key and would
open and
close
the
premises.
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Certain period
S.3(5) of the Land Act - Refers to commencement and ending dates.Lease is invalid due to uncertainty in duration.Lace v Chantler (1994) Facts : Plaintiffs sublet a house to the defendants for the duration of the second
world war.Issue : Whether the lease was valid. Held : Lease was void for uncertainty of duration as it was impossible to tell when thewar would end.
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Payment of rent
S.3(5)(d) of the Land Act provides for the payment of rent.
Leases enable the land owner to benefit from land he won t use himself.
Rent is the consideration paid in exchange for the tenancy.
Doesn t include the money the tenant will have to spend to repair the property.
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Creation of leases
S. 3(5) of the Land Act, created either by contract or by operation of law.Terms and conditions may be regulated by law to the exclusion of any other contractual agreement.S.54 of the R.T.A, instrument not effectual to
create a lease
until
its
registered.Land becomes subject to the covenants of the
lease upon registration.Ss. 108, 113(1), 114 R.T.A
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creation of a
lease Souza v Moorings Hotel (1969). Facts : Respondent sublet premises to the appellant under a sub sub lease, but the instrument wasn't registered. Respondent sued for rent arrears, appellant denied liability on grounds of non registration.
Issue : Whether
the
instrument
was
valid
Held : Wasn't void though unregistered, could operate as a contract interpartes and give riseto a claim for damages.
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creation of
leases A lease can be legal or equitable Walsh v Lonsdale (1882) Facts : Defendant granted the plaintiff a 7 year lease, the rent to be payable in advance, however the plaintiff paid in arrears forcing the defendant to distress for rent by seizing the
plaintiff s goods. Plaintiff specific performance. Issue : Whether the lease equitable.
Held : It
was
an
equitable
sued for trespass and
was legal or
lease, rent
payable
in
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Duration of leases
S.101 of the R.T.A, provides for a minimum period of 3 years.
Also states the form in which the lease should (8 th be Schedule).
Lease can be for any duration. Must have an ascertainable beginning and
ending before it takes effect.
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Termination of leases Surrender Merger
Effluxion of
Notice Forfeiture
Re-entry
time
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Surrender
S. 108 R.T.A provides for surrender of leases. Occurs when the lessee gives up possession of
the land to the lessor before the lease expires. Upon the lessor s acceptance, the lease merges with the reversion and is terminated.Can be done through the parties express
agreement, a statutory
provision
or
by
operation of law.No time limit within which to register the surrender of the lease.
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Merger It s the opposite of surrender. Lease is terminated when the lessee acquires
the reversion, which then merges with the lease.
This is because the tenant can t be his own landlord.
Merger
has
to
be
entered
into
the
registry
book.
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E fluxion of time
Lease for a fixed term automatically lapses on the expiry of that period.
No need to serve notice unless its expressly stated in the agreement.
Neither side has a right to prematurely end the lease unless the lease confers that right.
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Notice
Parties agree to an original period in a periodic tenancy.
Period ceases when parties serve a notice to quit.
Notice need not take any form subject to the parties agreement.
Must
be
made
to
expire
at
the
end
of
a
complete period of the tenancy. Must be clear and reasonable, no ambiguity.
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.notice Rajan Nanji v Dewjii Facts: Landlord s notice stated that the
tenant s rent would be increased if he didn t vacate the premises by a certain date.
Issue : Whether the notice was effective.
Held : Notice was ineffective to terminate the lease, tenant didn t agree to the terms albeit he was still in possession.
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notice
Rodseth v Shaw (1967). Facts . Plaintiff served a notice to quit on the
defendant who objected on grounds that the notice was signed by the plaintiff s husband and that it didn t expire at the end of the tenancy. Issue: Whether the notice was valid.
Held : Notice was valid though it was signed by the husband, besides it expired at the end of each month.
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Forfeiture Lease contains lessee.Lease contains
covenants which bind the a forfeiture clause which
empowers the landlord to terminate the lease incase of the tenant s breach of covenant. S.102 of the RTA provides for implied covenants of payment of rent, good maintenance ofleased property. S.113 of the RTA provides for covenants to be implied in a sublease.
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forfeiture
Scala House and District Company Ltd v Forbes (1973).
Facts : Tenant broke a covenant against subletting and the landlord gave notice forfeiting the lease. The tenant applied for relief from the forfeiture.
Issue : Whether the breach could be remedied. Held : Breach by unlawful sub-letting is
incapable of being remedied.
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Re-Entry
S.103(b) of the RTA provides for the lessor s right to re-enter and take possession of leased property incase of non payment of rent and breach of covenants.
S.114 of the RTA determination of a lease or sub-lease by re-entry has to be entered in the
register book.
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re-entry Lugogo Coffee Co. v Singo Combined Coffee Growers (1976).
Facts : Lessor leased land to the defendant for 49
years
but
he
defaulted
in
payment
for
20 years, she re-entered the land but the registrar
refused to make an entry. Sold the land to the plaintiff who sued the defendant for trespass.Issue : Whether the lease was terminated.
Held : The lessors lawful re- entry had determined the lease, albeit the law hadn t yet recognized it.
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Remedy
Kiwanuka Musisi v Seggane (1973) Facts: Applicant in breach of certain covenants, respondent re-entered theproperty, registered the re-entry and leased the land to a third party all to the applicant s knowledge. He applied for a cancellation of the
re-entry 6
months
later.
Issue : Whether the cancellation order would be granted. Held : Order would be refused due to the injustice which would be caused to the third party.
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Waiver of forfeiture
Landlord loses his right to forfeit the lease when he waives the breach of covenant complained of.
Waiver may be express or implied. Implied when the landlord is aware of the
breach but nevertheless acknowledges the
continuance of the lease. For example, a demand or acceptance of rent
even after notice of the breach.
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waiver Blackstone Ltd v Burnetts (1973)
Facts . Plaintiff granted the defendant a lease with a qualified condition against subletting.
Defendant got the plaintiff s permission to sub- let to 2 people but instead sublet to a different person. Plaintiff's clerk sent a demand note for
rent despite
the
breach.Issue : Whether the breach of covenant had
been waived.Held: Rent demand had waived the breach of
covenant against subletting.
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Terms in leases Implied covenants at common law A covenant is a term of a lease agreement. Covenants implied against the landlord. Quiet enjoyment Means that the landlord mustn t interfere with
the tenant s possession. Landlord not liable where the breach of quiet
enjoyment is due to a third party s fault.
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quiet enjoyment Opinya v Mukasa (1964) Facts: Landlord forcefully evicted the tenant by
uprooting the roof from his premises. Issue : Whether the covenant of quiet
enjoyment had been breached. Held : Landlord was liable for
awarded punitive damages.the breach, court
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Non-derogation from the grant Means that the landlord shouldn t frustrate the use of land for the purposes for which it waslet. Telex (Pty) Ltd v Thomas Cook and Sons (1970) Facts :
Plaintiffs
leased
their
premises
to
the
defendants who used highly sensitive equipment. They installed a cooling system which interfered with the defendant s
equipment forcing them to vacate and terminate the lease.Issue : Whether the landlord had derogated from the grant.
Held: The interference was substantial, and
defendants were entitled to terminate the
the
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Premises fit for human
habitation Means that the premises must be habitable. Or fit for the purpose. If residential, then the
facilities must favour residential use. Where the premises are for commercial
purpose, they should be fit for carrying out business.
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LICENSES
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bare license Wood V Leadbitter Facts: The Plaintiff bought a ticket to watch
races but was forcefully rejected by the
Defendant without his guinea being returned to him.
Held: Although he was a bare licensee, the license could still be revoked.
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license coupled with interest James Jones and Sons Limited V Earl of
Tankerville (1909) Facts: Land owner contracted to sell the
timber growing on his land to the third party. Issue : Whether the license had been granted. Held: The land owner had conferred a license on the purchaser to enter his land and take timber.
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License for value Hurst V Picture Threatre Ltd (1915) Facts: The Plaintiff paid for a seat in the cinema
but was forcefully ejected by the Defendant on
grounds of non payments, sued for assault and false imprisonment. Held : Plaintiff had the license to enter the
defendant s premises to watch the spectacle was wrongfully ejected.
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License by estoppel
Estoppels arises when one person A acts in expectation that he has rights over another s land (B)
If he relies on that expectation to hisdetriment, A is estopped from denying him the right.
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e stoppel Inwards V Baker (1965) Facts: The Defendant s father let him build a
house on his land, this became the Defendant s permanent home, however it was left to the Plaintiff upon the father s death. Plaintiff brought proceedings to recover the bungalow.
Issue: Whether
he
could
recover.
Held: Plaintiff was estopped as the Defendant had a license in his favour.
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Contractual tenancies Errington
V
Errington
(1952)
Facts: Father got a loan
his son and daughter in installments so as to be sought possession from father s death.
and bought a house for law who had to pay the in possession, widow the daughter upon the
Issue : Whether her action could succeed. Held : Widow not entitled to an order as the husband and daughter in law were licensees with a contractual right to remain in possession subject to payment of the installments
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Deserted wife s matrimonial home Deserted wife s right to stay in the matrimonial
home arises from an irrevocable personal license the husband is presumed to have
conferred on her. Same as a contractual licensee, has a valid
interest. Can only be revoked by a court order
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Questions Distinguish between a lease and a license What are the different types of licenses Distinguish between equitable and legal rights vitalDetermine the extent to which a right/interest is enforceable
1. 2.
3.
4.
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PRIVITY OF ESTATE AND
CONTRACT
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Privity of estate and contract Landowners are free to enter contractual
relationships in regard to their properties. A covenant is a promise under seal and is
enforceable under the ordinary laws of contract.
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Privity of contract Exists when the parties are in direct contractual
relations. Contractual liability is enforceable by or against
the estate of the dead party. The benefit but not the burden of the contract
is assignable. Can be enforced at law by an action for
damages or
equity
by
specific
performance
an injunction.
or
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Privity of estate
Exists when there is tenure between the parties, i.e., a landlord tenant relationship.
Mainly confined to leases and tenancies. Covenants which don't touch or concern land are unenforceable. No covenants are enforceable if there is neither
privity of estate or contract. 2 exceptions exist. 1. Equity allows for the transmission of both the
benefit and burden of restrictive covenants. 2. Common law allowed the assignment of a
covenant for
the
benefit
for
which
it
was
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privity of estate and contract The burden 1. Contract law rule that only a party to a
contract can be sued upon it.2. Privity of estate is an exception and the
assignees of either the lease or the reversion can be sued.
The benefit 1. common law allows for the transmission of
contractual benefits, e.g. the assignment of debts.
2. Benefit of a covenant relating to land can
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Requirements for the burden to
pass The covenant must touch or concern the land. Successor in title must have a legal estate in
the land.Land to be benefited must be reasonably identifiable from the covenant land.Parties must intend that the covenant benefit runs with the land.Covenantee must own the land to be benefited by the covenant but its immaterial for the
covenantor to own the land.
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restrictive covenants - Negative in nature Only a negative covenant will be enforced by
equity. Must be negative regardless of whether the
document is positive or negatively worded. Examples include covenants against building on
land, carrying on a particular trade or business.
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restrictive covenant Tulk v Moxhay (1848) Facts : Land was sold to Elms in a conveyance in which he covenanted to maintain it uncovered
by buildings and in a neat and ornamental order. Elms sold to the defendant whointended to build, was aware of the covenant albeit it was absent in the conveyance.Issue: Whether the defendant could use the land in a manner contrary to the covenant. Held : An injunction was granted against the
defendant to
restrain
a breach
of
the
covenant.
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Restrictive covenants burden on the servient
land A covenant is intended to burden the servient land
For a covenant made by the covenantor for himself, his heirs and assigns, the burden will run with the land.
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restrictive covenants protection of the dominant
land Vital that 2 plots of land exist as with easements.
Proximity of the plots is crucial. Covenantee loses the right t enforce the covenant when it becomes reasonably impossible to regard the covenant as benefiting the land.
Exceptions to
the
requirement
of
the
covenantee
holding adjacent land include lease and mortgages, statutory exceptions and remedies in tort and contract.
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Building schemes Also known as schemes of development. Have peculiar characteristics due to the
principle that benefits of covenants in equity run according to the intention and interest the original parties.
Restrictions placed on purchasers of plots
of
when land is bought according to plan. For example, covenants restricting trade or erection of cheap buildings.
the
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building schemes conditions for validity The plaintiffs and defendants must derive their
title from a common vendor. The vendor laid out his estate for sale in lots
subject to restrictions to be imposed. The vendor intended the restrictions to benefit
all the lots to be sold. Plaintiffs and defendants purchased their plots
from a common vendor.
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building schemes Elliston v Reacher (1908) Facts : Building scheme created in 1861, plots sold from an office in Ipswich, scheme covered
10 acres at Felixstowe. Office had a large wall plan with dominant restrictive covenants which were intended to preserve the area s exclusive nature.Issue: Whether the plaintiffs could enforce the covenants.
Held: Natural inference from the advertising that the scheme creator intended them to be mutually enforceable.
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Questions Distinguish between privity of estate and
privity of contract? Discuss the law relating to restrictive
covenants? What are the essentials of building schemes?
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EXPROPRIATED PROPERTIES
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Expropriated properties -
Introduction Asians came to Uganda as casual laborers during the construction of the Uganda railway. Stayed behind after completion of construction
and dominated the economy while Africans were involved in peasant farming, laborers in mines and plantations.Africans complained, colonial government
made reforms like the formation of the Lint Marketing Board , Uganda Development Corporation. President Idi Amin ordered for the expulsion of
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expropriated properties - Constitution The right to property is guaranteed under
Article 26, 1995 Constitution. Article 13, 1967 constitution provided for
right to property as well.
the Exceptions to the right are compulsory
acquisition by the state subject to adequate compensation.
Acquisition must be made in public interest, health, safety and morality.
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Expropriation -
meaning Refers to the state s action in enforcing compulsory surrender of private property without compensation.
Different from compulsory acquisition which entails compensation.
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How the expropriation was
done Cancellation of entry permits Declaration of assets Appointment of agents Vesting of properties Management of expropriated Compensation
property
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expropriated properties cancellation of entry
permits The Immigration (Cancellation of Entry Permits and Certificates of Residence) Decree No. 17 of 1972 provided that all persons of Asian origin who
were
citizens
of
India,
U.K,
Pakistan, Bangladesh had their permits withdrawn and
were given 90 days to leave. The Immigration (Cancellation Of Entry Permits
and Certificates Of Residence) (Amendment ) Decree no. 30 of 1972, amended the above decree and extended the cancellation of permits to all persons of Asian origin regardless
of their citizenship.
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expropriated properties declaration of
assets They had to declare their assets and liabilities and any other particulars about their businesses.
Declaration forms to be submitted to the minister with title deeds, debentures, contracts and loan agreements.
Minister
would
then
list
these
in
the
register
of
declared properties and businesses.
Expropriated properties Appointment of
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Expropriated properties - Appointment of agents Agents were appointed for the sale of property
to Ugandan citizens. Had to ensure the safety and protection of
property until it was sold to a Ugandan. The approval of the Abandoned Property
Custodian Board which was formed under decree no 29 of 1972 was necessary.
Decree provided for all unsold property to in the Ugandan government and then be transferred to the departed Asians panel.
the
vest
expropriated properties Vesting of
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expropriated properties - Vesting of properties These were vested in the government and the
board. Included properties which the Asians never
declared. Those whose management wasn t arranged
by the Asians.
Those appropriated by the Properties and
for
Business (Acquisition) Decree. No. 32 of 1972
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expropriated property
Consolidated in the Assets Of Departed Asians Decree 1973. All assets and liabilities vested in the
government were transferred to the Departed Asians Property Custodian Board, established under S.5 of the decree.Board was a body corporate, had to manage all
properties, pay all debts and discharge all mortgages.Had to collect all debts and monies due to the departed Asians.
expropriated properties
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expropriated properties - Compensation
Uganda was under immense international pressure from countries like Britain. Made compensation a condition for the grant
of donor funds.Led to the enactment of Decree No. 12 of 1975 which amended Decree No. 27 of 1973.It provided procedures for the assessment, determination and payment of compensation to all departed land owners.
Also allowed for the belated declaration for Asians who hadn t declared their properties.
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Expropriated properties reversing the expropriation
The Obote government was forced to return the properties due to continued pressure from Britain.
Africans were unhappy due to the loss of lucrative business opportunities.
Led to the enactment of the ExpropriatedProperties Act (E.P.A)
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EPA Purpose of the Act The EPA was a remedial statute which had to
be given a broad interpretation so as to address the mischief of expropriation.
Its long title stated that it was to provide for the transfer of businesses and properties expropriated during the military regime to the Ministry of finance and for their return to the former owners.
Properties to which the act
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Properties to which the act applied
Properties to remain vested in the government and to be managed by the Minister of Finance.Properties vested in the government and
transferred to the Departed Asians Property Custodian Board (DAPCB) under the Assets of Departed Asians Decree , 1973.Property acquired by government under the properties and business (Acquisition Decree.) Property in any other way taken over by themilitary regime other than those to which the repealed National Trust Decree applied.
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expropriated properties ministers
powers Was empowered to return the properties to the former owners (re-possession).The application had to be made within 90 days
of the commencement of the Act.The minister would then issue a certificate of re-possession if satisfied with the application. This was sufficient authority for the transfer bythe registrar of titles.
However, the deadline was later extended to 13 th May 1993.
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expropriated properties joint
ventures Joint ventures were entered into when the government was interested in property which former owner sought to re-possess.
If the parties came to an agreement, the minister would then issue a certificate transferring the property.
They
were
entered
into
in
respect
of
facilities
like schools, hospitals.
a
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expropriated properties - sale This was only possible where:1. The former owner failed to apply for re-
possession within the prescribed time.
2. The minister was dissatisfied with the merits of the application.3. Failure of the joint venture effort.4. The owner s failure to return and settle in
Uganda within 120 days after issuance of the certificate of re-possession.
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expropriated properties -
Appeals Appeals from the minister s decisions An aggrieved party had the right t apply to the high court within 30 days from the date on
which the decision was communicated to him.Tenants were entitled to occupy the premises until the minister dealt with them.Mortgages, liens and other third party claims created by former owners before expropriation were to be dealt with in the normal way.Leases which expired in the interim period
were to be revived.
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Questions
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Questions
The Expropriated Properties Act is a total contradiction of the legal principles relating land under the laws of Uganda. Discuss.
Discuss the law relating to expropriated properties in Uganda?
to
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MORTGAGES
I d i
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Introduction Are governed by the Mortgage Act. A mortgage is one of the forms of security one can use to secure his indebtedness.
Other forms include liens, pledges, guarantees. Could be in form of land or chattels, land is the best form of security as its immovable, doesn tperish although its character may change. The debtor is called the mortgagor while the creditor is the mortgagee.In case the debtor defaults in payment, the
creditor can
sell
the
land
to
discharge
the
debt.
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m ortgages -
definitions S.2 Mortgage Act In Santley Vs White, Lindley MR, defined a
mortgage as a conveyence of a legal or equitable interest in property with a provision for redemption
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m ortgages -
definitions Mutambulire Vs Yozefu Kimera (1975) Facts: Appellant lent money to the Respondent who offered his house and kibanja as security.
Respondent failed to pay, Appellant took possession, Respondent brought proceedingsto recover his property. Issue : Whether the arrangement was a mortgage or a contract of sale.Held : Transaction was a mortgage governed by the law relating to mortgages. Respondent
would redeem
his
land
on
the
due
date
offer
C id ti f th M t
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Consideration for the Mortgage Mortgagor/ Mortgagees relationship is
contractual, usual essentials of a valid contract must exist.
Consideration is a debt, whether present, future or contingent.S.115 RTA provides for mortgages
Ss.5,6,7,10 Mortgage Act
id ti
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considerations Pregji Vs Lubega Nasanil (1964) Facts: The Plaintiff lent money to the
Defendant. The Defendant defaulted in
payment, property was put up for sale by public auction but there was no buyer, The Plaintiff claimed the balance.
Held: Parole evidence was admissible to show that the money was advanced.
C ti f
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Creation of
Mortgages Searches and Inquiries - S.210 RTA provides for searches i.einspection of the Register book Ss. 145,184 (c)
,189; Land
Act
S.32(1),
5-6,34,
35(1) Legal Mortgages
Created by executing a mortgage deed in the prescribed form.S.3 M.A- A person holding land under any tenure may mortgage his/her instrument Mortgage to be effective after registration
However, its
still
enforcement
interpartes
even
Creation of
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Creation of
Mortgages De Souka V Kassamal, Nanji (1963) Facts: The Appellant mortgaged his land to the Respondent , Mortgage deed signed by the
Appellant but not the Respondent, Appellant sued for declaration that the deed was void.Issue : Whether absence of the mortgagee s
signature is
a matter
of
substance.
Held : Law doesn't require the mortgagee s signature so as to make the instrument effective and neither does it require both
Creation of Mortgages
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Creation of Mortgages Equitable Mortgages Created with depositing a mortgage deed Mortgagor deposits a certificate of title with
the mortgagee with the intention to create a security Equitable mortgage notified to the public
through the lodging of a caveat on the land RTA S. 138
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The equity of
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The equity of redemption
17 th Equity intervened since the Century to stop the exploitation of the mortgagor by the mortgagee.Allows redemption although the legal date of redemption has passed.Redemption is the process by which the property is freed from the mortgage following
the discharge of the loan or obligation secured against the property.Unregistered land, receipt is annexed to the mortgage deed while an application is made to the land registry in the case of registered land.
the equity of redemption
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the equity of redemption Kreglinger V New Petagonia Meat and Cold Storage (1914)
Facts: The Appellant agreed to lend the
Respondents the
money,
security
was
a floating
charger on their property. The Respondent agreed not to sell goods to any other person except the Appellant.Issue : Whether there was a clog on the equity of redemption.Held: Agreement with the reference to goods was a collateral agreement which was
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The Right to redeem must not be
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excluded Lewis V Franklove (Supra) The right to redeem was excluded by the
option to purchase in the Defendant s favour
thus there was a clog on the equity of redemption.
The right to redeem may be
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The right to redeem may bepostponed
Esso Petroleum Co. V Harper s Garage (1966) Facts: A mortgage petroleum filling station
included a term postponing redemption for 21
years and
another
term
requiring
the
mortgagor to buy the mortgagee s petrol.
Issue : Whether the postponement was valid. Held : It was valid.
Collateral advantage
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Collateral advantage Mortgage will seek more than loan security Folus agreements in the case of breweries,
garages which tie the mortgager to buying his
product Such a clause will be struck out if its unfair or
unreasonable, or is a clog on the equity of redemption
The test is one of unconscionability.
collateral advantage
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collateral advantage Biggs V Hoddinott (1898) Facts: A covenant contained in a mortgage of a
hotel to a brewer provided that during the
continuation of the mortgage, which was irredeemable for 5 years, the mortgagors would only sell the mortgagee s beer.
Issue : Whether it was unconscionable bargain. Held : No rule that a mortgage cant stipulate for
collateral was enforceable by the Mortgagee.
Enforcement of the equity of redemption
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Enforcement of the equity of redemption Enforcement of the equity of redemption is
provided for under:1. Ss. 134, 135,148 RTA
2. Ss.11(1), 11(3), 11(4)(a),12 M.A
Rights of a
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Rights of amortgagee
Suit Appointment of a receiver Taking possession of mortgaged property
Suit by the M
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Mortgagee S.3(9) M.A may bring a summary suit, seeking
for the sum due, interest, costs, an order to sell the land.
The mortgage deed usually has a provision allowing enforcement without resort to court. Govindj Popatla Vs Visandji (1962)
Appointment of a i
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receiver Receiver appointed to take charge of the mortgaged propertyTo cause it to settle the mortgagee s claims
against the mortgagor. S.22 M.A - Mortgagee s power to appoint receiver implied in every mortgage15 working days notice to mortgagor, must be in writingS.22(9) provides for priority of receivership
Taking possession of the mortgaged
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property S.24 M.A
Mortgagor to be given 5 working days notice Could be directed physical possession or
indirect by asserting the right of management over land
termination of
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termination of interest
Kehar Singh V Bhatt (1962) Facts: Appellants took out originating summons for an order of possession of
property mortgaged to them by the Respondent. Sold the property by auction without court s authority before the summons were issued.Issue : Whether the sale terminated the mortgagee s interest in the property.Held : Sale had terminated their interests in the
property, had
no
right
to
possession.
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Foreclosure and l
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sale Foreclosure is the judicial process through which the equity of redemption is finally extinguished. Remedy of last resort - S.26 M.ANotice of 21 working days, sale by public auctionAdvertisement, coloured picture of mortgaged
propertyMortgagee can t sell property to himself except with court s permission. RTA S.184
Sale otherwise than by
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foreclosure RTA Ss.115,116,210 A Uganda Credit and Savings Bank V Senkuba (1966) Facts: The Respondent mortgaged land to the
bank to
secure
a loan,
defaulted
on
payment, Bank sent him the statutory notice which
never reached him, Land was sold at a public auction. Respondent sued for the unlawful
sale.Issue : Whether the sale was unlawful. Held ; Sale unlawful, no notice was served on the Respondent
Priority of mortgages
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y g g
The first in time takes priority for equitable mortgages
Two mortgages, first to be registered created takes priority
but not
Legal mortgages take precedence over equitable mortgagesRTA Ss.114, 115,61
Questions 172
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1. Discuss the law relating to mortgages 2. What is the relevance of mortgages to
Uganda s land law 3. Discuss the rights of the mortgagee
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END