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Conveyancing Consolidated Lecture Notes

Land Law (University of Lusaka)

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CONVEYANCING and legal drafting 2019 to 2020

by MR BARNABY MULENGA
LECTURE 1
Laz General Conditions of Sale 1997 = NB: TO KNOW IT INSIDE
OUT

Practical Approach to Conveyancing by Mark Richard

Legal Drafting by Pierce David

Lecture notes

The Law Society Conveyancing Protocol of Wales and Scotland

All the books by Mr Solly Patel on Conveyancing (Practice file and

Handbook) (available at LAZ)

INTRODUCTION TO CONVEYANCING

What is Conveyancing?

A term including both science and an act of transferring titles to the real
estate from one man to another. Conveyancing is the part of the lawyer’s
business which relates to you:

 The alienation and transmission of property and other rights from

one person to another,

 And the framing of legal documents intended to create, define,

transfer, or extinguish.

Drafting basics

To draft effective documents, you must:

 Understand the client’s goals

 Identify the issues triggered by the project

 Research the law concerning the issues

 Apply the research to fashion your terms

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 Communicate the terms to your audience

Two approaches:

 Drafting from scratch vs using a Form/Precedent

 Owing to the Deeds Registration System in Zambia it’s easier to

approach conveyancing from a forms point of view. Due care and
professionalism is still expected of the Advocate to read every
clause.

[Allowed to get between 4% and 10% of the value of the property you are
dealing with.]

Matters prior to the contract:

 Clearly disclose to the purchaser/vendor that there are

professional obligations that apply to the sale and/or
purchase. Obtain agreement and instructions enable you to
act in accordance with the terms and spirit of LAZ Conditions
of Sale 1997.

 Where acting for a mortgagee (bank) as well as for a

purchaser/vendor, the duties owed to the Mortgagee are no
less important than they are for any Purchaser/ Vendor,
subject to the nature of the instructions.

 There is potential for conflict of interest to arise when acting

for more than one party

Rule 5 of the Legal Practitioners Practice Rules, 2002 –

outlines circumstances of potential conflict where a case may
not be taken. NB: be careful with instructions

 Endeavour to maintain vigilance to protect and guard against

fraudulent or other illegal behaviour encountered in the
conveyancing process.

 Maintain high standards of courtesy and deal with others in a

fair and honest manner

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 Co-operate with others and treat them with respect

 Share info with others to assist in thee=========

General formalities in Conveyancing

 Writing – this was made necessary through the statute of frauds

1677

 Registration – through the Lands and Deeds Registry Act

Purpose of formalities

 Forensic function

 To avert and avoid fraudulent transactions in property

Transactions

 It would be difficult to do in the absence of writing

 Formalities help to provide the simple and conclusive evidence

that there was an agreement between parties

 Evidentiary function

 Protective function

 To protect persons who were joint owners who weren’t able to make
well informed decisions especially between husband and wife

 Formalities create specific obligations thereby helping the parties to

re-think their decisions over land transactions

How to circumvent these requirements

Restitution in equity

Promissory estoppel

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CONTRACTS

Definition

A Contract is an agreement between two or more parties which creates

legal rights and obligations that bind those parties.

INGREDIENTS OF A CONTRACT

 Offer

 Acceptance

 Consideration (takes various forms)

 And an intention to create legal relations

These apply even to conveyancing transactions, there are various

contracts entered in conveyancing including Licenses, Leases, Easements,
Mortgages etc.

 If anyone of the ingredients, is missing then no contracts exist

(though with the exception of implied consideration in some cases)

 Clarity on what exactly is offered? Failure to have clarity can render

a conveyancing contract invalid. E.g. a land subdivided into four?
which portion are you mortgaging?

 Who is offering? What is the status of an Agent? Need for a power of

attorney with clear instructions for the agent. You cannot pass title if
you don’t have the authority to do so

Effect of the Statute of Frauds 1677 on Conveyancing

 The sale of land is governed by the laws and practices of the

jurisdiction in which the land is located

 Sec 4 provides that an unwritten contract is valid but not

enforceable

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 Validity required: signed by the Party likely to dispute, written on a

paper, valuable consideration. If you have John selling land to Mary,
if signed by John the seller, it is valid for purposes of the Statute of
Frauds despite the buyer, Mary not signing. The party likely to
dispute is the seller, saying when did I sign? Which is why as per the
Statute there is need for evidentiary evidence of his signing…

Investigation of Title

The object of investigations of title is to ascertain the ownership and title

of a property.

The attributes of ownership are:

 Right to have and get possession

 Right to prevent interference by others

 Power of alienation – right to transfer what’s yours

 Liberty of using the object according to the owner’s will

 Liberty of enjoying the fruits and to avail of the object owned

 Liberty of changing its form and even destroying it

The origin of ownership is in possession. Actual possession implies a

right to retain it until the contrary is proved and to that extent possessor
is presumed to be the owner, the concept of ownership gave birth to
‘’title’’

Possession is still an issue in Zambia: Supreme Court - Possession, Civil

servant and Zambian Citizen

[See sec 11 of the Lands and Deeds Registry Act and compare with sec 59
which seem contradictory.]

Investigation of title

 Title can be created by act of parties or by operation of law (a

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title deed is conclusive evidence of ownership)

 Title is legal term; it means the ownership right to property, it is the

prime concern of everyone at the time of purchasing property. Every
property has a title. Title is the evidence of the right of ownership or
the ground of right of ownership. In Zambia Lands and Deeds
Registry Act recognizes title as conclusive evidence of ownership
(sec 33 of the LDRA).

 How can you acquire title? Either by transfer or by operation of law

Some clients will have title deeds from the council and others from the
Min of Lands.

Question: process of investigating title – answer is on slide taken with

phone

Precedent Notes on Conveyancing by Solly Patel and LAZ General

Conditions of Sale – need for next lecture (drafting)

Use of a Standard Contract Template

 Dates clause

Key features:

AN AGREEMENT MADE ON THIS ------ DAY OF -------TWO THOUSAND AND

------

 You cannot put the date because you are drafting on behalf of your
client. Dating is done when your client comes to sign.

 The date must be in words and not in figures.

 Parties clause – made between so and so…who is transacting?

Contract of sale. Importance of parties clause: You will not use the
actual names of the parties in the contract, they fall off UNTIL THE
ATTESTATION CLAUSE. You refer to vendor and purchaser.

The seller is called a vendor

The buyer is called the purchaser

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 Involving individuals

BETWEEN JOHN PHIRI of Lusaka in the Republic of Zambia

(hereinafter called ‘’the vendor’’) of the one part and FREDRICK
CHILUBA also of Lusaka (hereinafter called ‘’the purchaser’’) of
the other part.

If you have John and Juliet Phiri you have to amend it mutatis
mutandis:

BETWEEN JOHN and JULIET PHIRI of Lusaka in the Republic of

Zambia (hereinafter called ‘’the vendors’’) of the one part and
FREDRICK CHILUBA also of Lusaka (hereinafter called ‘’the
purchaser’’) of the other part.

 Corporate bodies

 NGOs/ Clubs and Churches

BETWEEN LUSAKA GOLF CLUB a body incorporated under the

Perpetual Succession Act and having its registered office at
Lusaka (hereinafter called “the vendor’’) of the one party …

 Limited Companies (By Guarantee or by Shares)

BETWEEN ZAMBIA BREWERIES LIMITED a company

incorporated in Zambia and having its registered office at
Lusaka (hereinafter called “the vendor”) of the one party…

 Statutory Bodies e.g. NAPSA – bodies with an Act governing

their creation

BETWEEN PUBLIC SERVICE PENSIONS FUND a body

incorporated under CHAPTER 267 of the Laws of Zambia
(hereinafter called ‘’the vendor’’) of the one party…

 Cooperatives

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BETWEEN ZAMBEZI COOPERATIVE LIMITED a body

incorporated under the Cooperatives Act Chapter 100 of the
Laws of Zambia (hereinafter called “the vendor”) of the one
part…

 Partnerships

BETWEEN JOHN BANDA of Kitwe in the Republic of Zambia

(hereinafter called “the vendor”) of the one part and JOHN
SANGWA and ROBERT SIMEZA both of Lusaka in the Republic
of Zambia (hereinafter called “the purchasers”) trading as
SIMEZA SANGWA AND ASSOCIATES of the other part.

 Liquidators

 Administrators/Executors

 Mortgages in possession

Testimonial clause

AS WITNESS the hands of the parties hereto or their duly authorised

agents the day and year first written

Attestation clause

 In the case of an Individual Vendor or Purchaser

SIGNED by JAMES BANDA )

In the presence of: )

WITNESS

NAME:

ADDRESS:

OCCUPATION:

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 In the case of a Limited company

Signed by CHIMWEMWE CHAWALA MWANZA )

For and on behalf of ZAMBIA )

ZIALERS LIMITED in the presence )

Of: )

WITNESS

NAME:

ADDRESS:

OCCUPATION:

 Sister signing on behalf of her brother

Signed by MARY PHIRI

For and on behalf of JOHN )

PHIRI pursuant to a Power )

Of Attorney )

Dated the 6th of January 2017

In the presence Of:

WITNESS

NAME:

ADDRESS:

OCCUPATION:

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Description of the Property

In a contract of sale, the only part where you indicate what type of
interest (e.g. a 33 year or 100-year lease) is being sold, is in the
description clause.

Described in two ways:

 Surveyed

A property which is surveyed must be described on a diagram.

Has certain characteristics:

 Proper description of the size and shape of the property – it will

indicate the distance and if there is a river which forms a boundary,

 It will show the angles

 Signed by the Surveyor General or a Registered Land surveyor to

prove that the land has been authorised

How to describe it if it is a 99 years lease:

ALL THAT piece of land in extent two hectares more or less being stand
No. 20 situate in Kitwe in the Republic of Zambia which piece of land is
more particularly delineated and described on Diagram No. 2 of 1970
annexed to the Certificate of Title relating to this property EXCEPT and
RESERVED all minerals precious stones or whatsoever upon or under the
said land TOGETHER WITH the unexhausted improvements for the
unexpired residue of a term of 99 years from the first day of January One
Thousand Six Hundred and Seventy and made between the president of
the Republic of Zambia of the one part and John Phiri of the other part

 Unsurveyed

A property which is Unsurveyed must be described on a Sketch plan.

ALL THAT piece of land measuring approximately one acre which

for purposes of identification is shown on sketch plan annexed

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hereto and thereon bordered red.

When you have more than one property being sold, you describe as:

FIRSTLY all that piece of land…

SECONDLY all that piece of land…

THIRDLY all that piece of land…

(hereinafter collectively called “the Properties”)

Statutory Lease

A Statutory Lease is a 100-year-old lease with a clear commencement

date – 1st July 1975, converting from free-hold to lease-hold. It has been
running since that day, being 42 years today. Buying such a property
means that you are only buying the unexpired residue, that is 100-42 =
58 years of an interest. (Properties are valued based on the interest). This
was done by decree, a pronouncement by the President through The Land
Conversion of Titles Act. The conditions for the lease where introduced as
subsidiary Legislation. These were printed and tied to the Lease in a
Schedule (part I and II) and NOT in the Act.

How to describe a property with a statutory 100-year lease:

TOGETHER with the unexhausted improvements for the unexpired residue

of a term of hundred years from the first day of July One Thousand Nine
Hundred and seventy-five created by the Land (Conversion of Title) Act
1975 at a rate reserved subject to the conditions and covenants in part I
to the first Schedule of the Land Conversion of titles Regulations 1975.

[If you need to correct something in the exam, e.g. a word wrongly placed,
you need to indicate with an arrow where it should be. PUT MORE EFFORT
IN A CONTRACT AND LEASE, MOST FAILED TOPICS]

SPECIAL CONDITIONS

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THE LAZ General Conditions of Sale are a set of rules which help govern
transactions of sale. When individuals are dealing in land, they tend to
simplify matters, e.g. I want an acre for K100 000. These are the basic
facts. The complicated part is who is going to survey this land? Often this
does not cross the mind of many.

Under the LAZ General Conditions of Sale, in the absence of any

agreement, the vendor, the one selling, must be the one to pay the
surveyor.

Special conditions are a departure from the LGCS: if you decide to say the
one who will survey is the purchaser, that becomes a special condition.
You cannot as a lawyer reproduce what is already in the LGCS. If the Laz
conditions provide for that you will know that this is not a special
condition.

e.g. Consideration can be as low as 0.1% in contract. But with land

matters, the prescribed amount is 10%. if you decide that it will be 50%, it
will become a special condition. You should be familiar with the LAZ Gen
conditions of sale (read them four times, cover to cover).

There are 8 conditions to be known by heart are (last revised in 1997):

 The property is sold subject to the LAZ General Conditions of Sale

1997 so far as the same are not inconsistent with or varied by these
Special Conditions

 The vendor’s advocates are…

The Advocate for the Vendor are Simeza Sangwa and Associates,
Plot No. 20 Zambezi Road Lusaka

(Physical address)

The Advocates for the Purchaser are BAC Chambers, Stand No 20

Lusaka

 The period fixed for obtaining State consents and any other
necessary licenses to assign shall be within…..weeks from the date

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of the Contract

 Complete depending on the circumstances or instructions received

as follows:

 The date fixed for completion is within 28 days of the Vendor

obtaining State’s consent to assign and notifying the Purchaser
thereof in writing
 The date fixed for completion is on or before the 28th August 20…
 The date fixed for completion is within 7 days of receipt by the
Vendor of the Tax Clearance Certificate relating to this transaction and
the vendor notifying of the Purchaser thereof in writing and which
Certificate shall be applied for within 3 days of receipt of the State’s
consent to assign by the Vendor.

Ideal way of drafting No.4 is:

The date fixed for completion shall be 3 days after obtaining Zambia
Revenue Authority Property Transfer Tax receipt and Certificate which
shall be applied for 7 days after obtaining State consent to assign
which consent shall be applied for 10 days after the date of the
contract

 The vendor sells as Beneficial Owner or Personal Representative or

Mortgagee

 Title to the property shall commence with the Certificate of Title

issued in respect of this piece of land

 The said property is sold subject to the exceptions, reservations,

restrictions, restrictive covenants, and conditions mentioned
contained or referred….;

A 99-year lease will be described as:

The property is sold subject to the conditions and covenants

described in a lease dated the Eighth of February One Thousand

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Nine Hundred and Ninety Nine and made between the President of
the one part and the Vendor of the other part

(this is the description for a 100-year lease)

The property is sold subject to the covenants and conditions

contained in Part One of the First Schedule to the Land (Conversion
of Titles) Regulations, 1975 AND SUBJECT ALSO to exceptions,
reservations, restrictions, restrictive covenants and conditions
mentioned contained or referred to…..

 Description where there is more than one property being sold:

The consideration in respect of this transaction is Two Hundred

Thousand Kwacha (K200 000) broken down as follows:

 The furniture….

YOU SHALL BE EXAMINED ON A CONTRACT OF SALE – ACTUAL

DRAFTING. READ THE LAZ GENERAL CONDITIONS AT LEAST FOUR
TIMES.

YOU NEED TO GET THE S.I FOR ALL THE FEES IN CONVEYANCING –
WILL BE CIRCULATED BY CLASS REP

In the exam, you’ll be given a photocopy of a title deed (e.g. refer to the
document titled Certificate of Title – the 99-year title)

 with Certificate of Title Number – shows authentication of the

title;

 Registered Number e.g. 11280/M/C/4 – 4 shows that if you

print the register, this certificate of title will be the entry
number 4 (can be used to catch frauds)

 There 4 dates – date number 2 is showing that the lease is 99

years from the first day of Sept 1999, which becomes
mandatory to talk about the date of commencement; the date
of the doc at the bottom left corner is important; it is the date

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of the lease between the parties; date of registration is the

date it is first lodged at the Deed Registry, when it is stamped.

 Every genuine certificate of title must have memorials with a

part explaining what the transaction was and the parties who
were involved, in this case the President and Andrew Njanji
Chawala Mwanza meaning he was the initial owner of the
entire land and got a separate title. There is a lease
agreement between the President and Mwanza which subsists
until the expiry of the 99 years, notwithstanding any sale on
Mwanza’s part. A sale to Kabosha doesn’t mean that a lease
between Mwanza and the President is cancelled.

 The title holder is Francis Mulela Kabosha bought subdivision

titled ‘C’

 If for instance Kabosha is then selling to a Mr Banda, in a

contract of sale, when you get to the TOGETHER WITH clause,
you’ll not refer to Kabosha but to the one indicated in the
Memorials, i.e. Andrew Njanji Chawala Mwanza

 It’s critical that you get hold of a copy of a certificate of title

so that you are sure of what interest is tied to a particular
property

 Section 7(1) of the Lands and Deeds Registry Act says all
documents required to be registered as…shall have priority
according to the date of registration…the date of registration
shall be the date upon which the document is first registered
in the registry…[section 7(2)] -

 A title deed has three documents which are all bound together

 Certificate of title issued under the Lands and Deeds

Registry Act

 Lease agreement – issued under the Lands Act (Date of

Document)

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 Diagram – issued by the Survey General issued under

the Lands Survey Act

A 100 years lease

 Creation of Statute

 The second date is NB

 Fee simple/term means freehold- if you see this in the exam,

remember the Land Conversion of Titles Act [this deals with the
conversion of interest from freehold]

 No date of document because it was by act of parliament

 “TOGETHER WITH the unexhausted improvements for the unexpired

residue of a term of One Hundred years from the first day of July
One Thousand Nine Hundred and Seventy Five created by the Land
(Conversion of Titles) Act at a rate reserved SUBJECT TO the
conditions and covenants contained in Part III of the First Schedule
to the Land (Conversion of Titles) Regulations 1975 AND SUBJECT
ALSO TO the exceptions reservations restrictions restrictive
covenants and conditions contained in an Indenture of Grant of Final
Title dated the eleventh day of October One Thousand Nine Hundred
and Sixteen and made between The British South African Company
of the one part and Rhodesia Copper and General Exploration and
Finance Company Limited of the other part so far as the same are
still substituting and affect the said land.

Council Title - take note that the page that says COT - its a title issued
pursuant to the now repealed Housing Act which needs to be reflected in
the Memorials. The part that talks about the tenure above the title is an
important date to pick, the duration is 99 years from 1st Day of
January...Date of doc in the memorials is NB as the date of the lease.

14year Title - were issued by Min of Lands in circumstances where the

property was not yet surveyed. This was introduced because an average

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person may not afford to pay for surveying because its expensive. These
titles are however no longer issued. The property would have a sketch
plan. A diagram means the property has been surveyed by a registered
and qualified land Surveyor. A diagram will be signed on the top right
corner and somewhere in the middle by a government and private
surveyor, it also has some angles in relation to the property showing
actual distances. it will be signed by the surveyor general to indicate that
the area bordering red is the property. A sketch plan does not have all this,
save for a stamp pursuant to the Land Survey Act showing that its valid
for 14 years. it indicates 14 years from a certain date.

Land Record - it was innovation of the councils. Under the Housing

(statutory and Improvements) Areas Act, occupancy license of 30 years
and a COT for 99 years. They faced challenges with regard to the fact that
for a doc to be issued under this Act, because there was a requirement
that a boundary for the necessary portion needs to first be surveyed and
title issued before the specific area could be numbered and given an
occupancy license. An occupancy license is only given for an improvement
area, meaning you cannot get one for a piece of land which was never
part of a shanty compound. Council title would specifically be given for
statutory areas. The Council came up with this Land Record awaiting the
formalization by the Minister. It has no law supporting it but is acceptable
practice. These kinds of records don’t have much security as opposed to a
Certificate of Title though they have been recognized by the courts.

Customary Land Records - Disadvantages - there is currently no obligation

to have a paper, may make proving ownership difficult. [Land laws have
not been changed in principle from as far back as 1889].

[If a white man wanted to get a title, there was a procedure provided for
by getting some form of consent from the traditional authority after which
it would be handed over to the officers of the Min of Land who would issue
title as per the 1989 Ordinance. Black people were left without title as is
still the case today known as customary tenure.] Planning Law does not
apply to customary land and this creates several disputes.

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There is a relationship between poverty and land tenure, Countries who

have solved the land problem are able to develop faster.

What is critical for this is:

1. Look for the village register which recognises who is known to be

the owner of land [AS PART OF YOUR DUE DILIGENCE AS A LAWYER]
e.g. Western province has actual records of land ownership. it may
require sending someone on the ground to confirm where the land
is. Ownership can change to another without any paper.

2. Insist on a Conversion as per section 7 and 8 of the Lands Act, to

leasehold tenure. Process -

a. Conversion form;

b. Consent of the Chief by signing the form and the sketch plan as
prepared by some surveyor or someone with catographic knowledge
showing the approx size of the property to be signed by the Chief
(there is no obligation in the law to compel a Chief to give you
access to land),

c. Approval from the local council by the Council Secretary if its a

District Council or the Town Clerk if its a Municipality + letter of
recommendation to the Ministry; Attach full council minutes and
depending on the size of the land National Report Center conduct
remote sensing to see if there is a human being or some animal
(helps avoid a situation where a piece of land is given and later find
that there are some villages/communities in the area).

ISSUES TO CONSIDER WHEN DRAFTING CONTRACTS

 Searches before completion -

i. Council rates which relate to properties that are within the District
Boundary, which are strictly Residential (does not include
agricultural property though sometimes the Council records make

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mistakes)

ii. Zoning - whether it is zoned as agriculture, residential, commercial,

light use, etc. [You may actually say that Completion is subject to
the change in Zoning]

iii. Land Register - summary of the transactions on a property from the

time it was first issued to date.

iv. Occupancy Details and other circumstances surrounding property

(Possession) - Who is in possession of the property? A person who
has possession of the property and promised by the owner that they
will sell them the land but sells to a third party ignoring the
premised tenant, that contract can be annulled [first right of
refusal]. Edith Nawakwi and LCC v

Some tips on Post Completion Procedure

Requires that you pay attention to the following:-

i. Registration costs - these differ from transaction to transaction, and

are payable to the specific agency that issue title deeds for them to
effect the change of title (Min of Lands or LCC)

ii. Reporting to client - Always keep the client informed and prepare
them for subsequent costs if any

iii. Drawing bills of costs

iv. Investigation of titles (Two COTs are issued, one is put on the file in
the Registry and the other issued to the client - possible for
members of the public to pay for a search and they make a copy of
the one on the register)

v. Payment of PTT

COMPLETION DETAILS

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Completion Statement - is one written by the Advocates for the Vendor to

the Purchaser's Advocates indicating that the Vendor is ready to complete
the purchase and requesting them to come forward to complete. In short,
can you the purchaser come forward and pay the balance and all other
incidental costs. e.g. PTT if is agreed that the purchaser would bear this
cost, as a Special Cond

Considerations with rates, other outgoings, i.e. amounts incidental to the

transaction such as telephone, water bills etc.

Computations and How to treat the same:

i. interest

ii. rates

iii. rent - you indicate that the sale will be subject to the tenancy
agreement (meaning that you are not evicting the tenant, the new
owner will inherit the tenant)

Payment of PTT (read the PTT Act)

 5% of the Consideration

 Need for a Valuation report for properties > K500,000

 LAZ General Conditions [obligation to pay is on the Vendor]

 Payable on all Sales, Gifts not involving Family (i.e. nuclear family)

 Need to know the cases of exceptions

ASSIGNMENTS

This is a document (deed) used to transfer ownership from one person to

another where Consideration has been paid. A deed = Indenture which
by definition is a document executed under seal.

Issues to consider in an Assignment Deed

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 Dates Clause (day, month, and the year with dashes in

between...DO NOT FILL IN)

 Parties Clause - made between...take note of who the parties are

(you are expected to invent necessary facts where they are not
given in the exam, e.g. address and occupation of parties)

 Recitals - Whereas...

 Testatum - now this deed witnesseth as follows...

 Consideration Clause - in pursuance to the said agreement and in

consideration of the sum of...

 Receipt Clause - receipt whereof the vendor hereby acknowledges...

 Operative or Demise Clause - the vendor as beneficial owner

HEREBY ASSIGNS unto the purchaser...

 Parcels Clause - summary of what land is being bought

 Habendum Clause - TO HOLD THE SAME unto the Purchaser for the
unexpired residue...

 Restrictive covenants - Subject to the conditions and covenants in

the said lease

 Purchasers Covenants - the purchaser hereby covenants with the

Vendor...

 Indemnity Clause - and hereby commits to indemnify the vendor

from any claims, losses and other expenses that may arise after the
fact...

 Testimonium Clause - in witness thereof the vendor has set his hand
and seal...

 Schedule - the schedule herein referred to... (was referred to in the

parcels clause), here you describe the entire property. Can be given
a question where you are just given a heading, the schedule and
have to describe the entire property (No TOGETHER WITH clause,

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this is only in a contract)

 Attestation - SIGNED, SEALED AND DELIVERED by the so called...

RECITALS

 Summary of the nature of the Transaction

 Two ways of Drafting - you will be tested and marked based on this!
Either use numbering or paragraphs to say:

WHEREAS:

1.

2.

or

WHEREAS the vendor...

AND WHEREAS the...

AND WHEREAS...

 8 types of Recitals

I. 99 years by the first owner

II. 99 years by a subsequent owner

III. the bank selling as mortgagee in possession

IV. liquidator is selling

V. a Council lease is being sold - involving the Ministry of Lands

VI. An Administrator selling

VII. A sub-division is being sold

VIII. Hybrid

Recitals give you an explanation

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General Rules

 Systematic way of telling the story

 Start with Type of Interest being bought

 End with Consideration clause

RECITALS (9 Types)

1. Personal Representative

2. Liquidator

3. Subdivision

4. Mortgagee in possession

5. 99-year lease first Allocatee selling

6. 99-year lease Second Allocatee or Subsequent Owner

7. Lands and Deeds Registry Council Lease

8. Lease Under the Urban and Regional Planning

9. Statutory

Personal Representative (need to memorize the type of lease)

(page 25 of the Patel Book)

In the exam you’ll be given a copy of a COT and have to deduce which
lease you are dealing with.

1. Type of lease – 99-year lease, 100-year lease, Council Lease

a) 100-year Lease

WHEREAS the Vendor is a tenant or lessee of a term of One Hundred

years from the First day of July One Thousand Nine Hundred and
Seventy-Five created by the Land (Conversion of Titles) Act 1975 at a
rent reserved SUBJECT TO the conditions and covenants in Part One to
the First Schedule of the Land (Conversion of Titles) Regulations 1975.

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b) 99-year Lease

WHEREAS

i. By Lease (hereinafter called the “Lease”) dated the Twentieth

of September Two Thousand and Six and made between the
President of the one part and the Vendor of the other part all
that property described in the Schedule hereto was demised
to the Vendor for a term of Ninety Nine years from the First
Day of February Two Thousand at a rent reserved SUBJECT TO
the conditions and covenants contained in the said lease.

c) Council Lease

By a lease (hereinafter called “the Lease’’) dated the Twenty Ninth day
of July Two Thousand and Ten and made between the Lusaka City
Council of the one part and the Vendor of the other part pursuant to
the Housing (Statutory and Improvement Areas) Act all that property
described in the Schedule hereto was demised to the said Vendor for a
period of Ninety Nine Years from the First day of January One Thousand
Nine Hundred and Seventy Three SUBJECT TO the exceptions
reservations restrictions restrictive covenants and conditions
mentioned contained or referred to in the said lease AND SUBJECT
ALSO TO the conditions and covenants contained in the Housing
(Statutory and Improvement Areas) Regulations 1974.

2. Death of the Testator/Owner

WHEREAS the said ABC died on Tenth January Two Thousand

3. Grant of probate/Letters of Administration

WHEREAS the High Court of Zambia under the Probate Registry granted
Letters of Probate to John Moyo dated…

4. Consideration

Liquidator

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1. Type of Lease

2. Special Resolution at an EGM to Windup the company and appoint

ZEBRA ZULU

WHEREAS

I) By a Special Resolution at an Extraordinary General Meeting

to Windup the Company the Shareholders decided to Windup
the Company and appointed ZEBRA ZULU of Price Water
House Coopers to be a Liquidator.

3. Consideration

Subdivision

1. Type of Lease

2. The property has been subdivided into two namely Stand 23 and
stand 23/A

3. Consideration

Mortgagee in Possession

1. Type of lease

2. Mortgage obtained from the Bank

WHEREAS by Mortgage dated Tenth December Two Thousand the Bank

advanced a loan of One Million dollars to John Phiri

3. Court Order to foreclose and Sale

By a Court order granted by the High Court under Order…the Court

ordered

4. Consideration

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99 Years First Allocatee Selling

1. Type of Lease

WHEREAS

2. Consideration

Second or Subsequent Owner Selling a 99 years Lease

John to Mary to Peter

1. Type of Lease

By a lease by the President and John…

2. The property is Now Vested in the Current Owner

The premises comprised in and demised by the Lease are now vested
in Mary for the residue of the term of years created by the Lease
subject to the rent covenants and conditions contained in the Lease.

3. Consideration

Lands and Deeds Registry Council Lease

1. Type of Lease

2. The property is Now Vested in the Current Owner

3. By Virtue of Section 6(1) of the Lands Act, holder is deemed to be

holding the Land from the President

4. Consideration

Lease under the urban and Regional Planning Act (Previously the
Housing (Statutory and Improvement Areas) Act

Principles learnt above apply Mutatis Mutandis

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Combination

Dealing with a situation where you may be asked a question saying draft
recitals only where the bank is selling a subdivision.

 e.g. Banks selling a subdivision

draft on a separate paper a simple format of each

lease, mortgage, court order, subdivided into A and B, Consideration in

respect of B

 Administrator selling a subdivision

Lease, death of owner, grant of letters of Administration, subdivided

into A and B, Consideration in respect of B

EXAM TIPS

 Strictly up to an Assignment (All clauses)

 Contract of Sale

 LAZ Gen Conditions

 Completion Statement

Deed of Exchange – is used where two or more people are exchanging

land e.g. where stand A is wrongly given to Mr B instead of Mr A while
stand B is given to Mr A instead of Mr B.

DEED OF EXCHANGE

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THIS DEED OF EXCHANGE is made the day of

Two Thousand and…………………………...BETWEEN MABVUTO BANDA of
Lusaka in the Republic of Zambia (hereinafter called “the Exchangor”) of
the one part and DORCAS KAMANGA also of Lusaka in the Republic of
Zambia (hereinafter called “Exchangee”) of the other part.

WHEREAS

The Exchangor and the Exchangee are Tenants or Lessees for the residue
of a term of 100 years from the 1 st day of July, 1975, created by the Land
(Conversion of Titles) Act 1975 of ALL THOSE pieces of land described in
the First and Second Schedules hereto respectively at such rent and
SUBJECT TO the exceptions reservations restrictions restrictive covenants
and conditions in part one to the First schedule of the Land (Conversion of
Titles) Regulations….

AND WHEREAS the Exchangor and the Exchangee have agreed to

exchange the pieces of land held by them respectively and to enter into
the covenants hereinafter contained.

NOW THIS DEED WITNESSETH as follows:

1. (a) in consideration of the Assignment hereinafter made the

Exchangor as Beneficial Owner HEREBY ASSIGNS unto the
Exchangor ALL THAT….

TESTIMONIUM CLAUSE – the two parties will both have to sign

ALL DEEDS END WITH THE TESTIMONIUM CLAUSE, A SCHEDULE,

AND AN ATTESTATION CLAUSE.

MORTGAGES

Documents used to borrow money from the Bank using land is called a
Mortgage. You cannot have a mortgage without land.

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When you have obtained a facility from the bank and go to the same bank
and ask for more money, its called a further charge. Assuming you need
more money, you’ll be given a second further charge and go in increasing
in number.

There are other common arrangements such as where you use the title of
a third party to secure a loan, it’s called a third-party mortgage. Three
parties: Bank, Owner of Title and the Person borrowing. A second
mortgage is one which arises in circumstances where you obtain a facility
from a bank for a property valued at K5mil and borrow K1mil against that
property, and the Bank holds the title deed. You then go to another bank
who agree to give you K2mil against the same property. You don’t
discharge the property because the first loan is still running. The second
loan is called a second mortgage. Assuming you pay off the first loan, the
document you prepare is called discharge of mortgage.

Depending on the loan, sometimes the bank may request for collateral to
the tune of the amount you want to borrow, so in the instance that you
provide several title deeds of different properties to the sum of the
principal debt, you create a mortgage involving all the three properties for
example. Later, you decide that you need one of the title deeds to get a
facility elsewhere, you approach the bank and they agree, the document
to be prepared for the two encumbered properties is called a partial
discharge of mortgage. Partial because you are only discharging one of
the three properties.

May sometimes opt to subdivide a property and a portion sold, so that the
proceeds of the sale are used to pay the amount owing to the bank. This
however can only be done with permission from the bank which is
obtained through a partial discharge.

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DEBENTURES
A debenture is a charge created on the assets of a company which vary
from shares, machinery, land, goodwill. A debenture is exclusively for
companies!

Agricultural charges are those created using equipment and machinery

(irrigation equipment, genset, etc) from the farm, pursuant to the
Agricultural Credits Act. You can also use the crop itself, e.g. I am
expecting 50 tonnes of maize, and so a charge is created against the
produce.

STEPS

MORTGAGE

ACTING FOR THE BORROWER

1. Instructions
2. Searches (if it’s a corporate body NB to do searches at PACRA as
well for any charges on its assets)
3. Write to Bank’s Advocates and deduce title
4. Approve mortgage (and guarantee) and have same executed
5. Return to Advocates for Bank
6. Advocates of Bank will forward completion statement showing the
net advance you will receive on completion. Check and see if it is
correct.
7. Arrange completion
8. Draw Bill of costs

ACTING FOR BANK/LENDING INSTITUTION

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1. Instructions
2. Write to borrower’s Advocates asking them to deduce title
3. Check Title and draft Mortgage and have Mortgage approved by the
Advocates of borrower. After the borrower’s advocates have
approved the mortgage you engross the same. Have it executed by
borrower.
4. …prepare
Report on title and forward to the Bank
5. When advance is received, prepare Completion Statement and
forward it to borrower’s Advocates and arrange for completion.
6. Thereafter prepare Lodgement Schedule and register documents
7. Bill client and when registered documents are received from Deeds
Registry forward to the Bank.

REMEMBER THE BANK DOES NOT SIGN ON A MORTGAGE. SECTION 4 OF

THE STATUTE OF FRAUDS REQUIRES THE PARTY LIKELY TO DISPUTE TO
SIGN, I.E. PERSON BORROWING.

SECOND MORTGAGE

ACTING FOR THE MORTGAGOR

1. Instructions
2. Obtain consent of first Mortgagee and request deeds
3. Write to the other side and d3duce title
4. Approve draft
5. When engrossment is received, have it executed
6. Check completion statement
7. Arrange completion (Get undertaking for return of deeds)
8. After registration, when deeds are received do Notice of Second
Mortgage and forward the lot to the First Mortgagee.

Deed of Substitution of priorities – where for example ZANACO gave an

initial loan of K1mil but Stanbic on a second mortgage believe that they
are more exposed because they gave a loan of K2mil. Stanbic would apply

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to ZANACO to buy the rights for first priority of debt, agreeing to pay for
example K150, 000. A deed of Substitution of priorities will be executed.
Stanbic will then get the title deed from ZANACO and in the event of
default have first priority to have their debt discharged.

MORTGAGE

THIS MORTGAGE is made the day of Two

Thousand and BETWEEN HARRY MULELE of Lusaka ….

WHEREAS the Bank has agreed to make advances and give other
accommodation to the borrower upon having the same secured in the
manner hereinafter appearing.

NOW THIS DEED WITNESSETH as follows:

NB CHARGING CLAUSE OF A MORTAGE:

In consideration of the premises the Borrower as Beneficial Owner

HEREBY DEMISES unto the Bank ALL THAT the piece of land described
in the first schedule hereto (hereinafter called “the property”) TO HOLD
the same unto the Bank for the residue of the term of years created by a
Lease described in the Second Schedule hereto except the last three days
thereof SUBJECT to the provisions relating to redemption herein
contained.

TESTIMONIUM CLAUSE - pay attention to the gender: his/her hand and

seal…

SCHEDULE OF A MORTGAGE

 First schedule will deal with the first mortgage

 Second schedule summarises the terms of the mortgage

ATTESTATION CLAUSE

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THIRD PARTY MORTGAGE

THIS THIRD PARTY MORTGAGE is made …………………day of

………………….. Two thousand and……………………………..BETWEEN
BORROWELL LIMITED a Company incorporated …..

Memorise charging clause:

The Mortgagor as beneficial Owner HEREBY DEMISES unto the Bank ALL
THAT the property described in the First Schedule hereto TOGETHER WITH
all buildings now or hereafter erected thereon TO HOLD the same unto the
Bank for all the residue now unexpired of the said term of 99 years…

Both the customer and the Mortgagor sign a third-party mortgage

NB: A mortgage debenture means that where you are talking about a
company’s properties land is also included.

Memorandum of Deposit of Title Deeds is not the same as a mortgage.

A Deed of Moiety is like a deed of gift except you are adding someone
on a title deed that wasn’t there and become co-owners. Usually applied
in the circumstances of a marriage where you are adding a partner. It will
be up to you to specify whether you are holding jointly or as tenants in
common. It will not be possible to have joint tenancy because one person
has been holding title for a longer period, technically speaking.

Parties are donor and donee.

“The Donor is desirous to own the property together with the Donee who
is the spouse as Tenants in Common in Equal Shares”

Testatum Clause is like a love letter LOL! �

Read up on Lease! Definitely in the exam. Expected to know:

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- Consideration clause – In consideration of the rent and the tenants

covenants…”
- Demise clause “The Landlord as Beneficial Owner hereby demises
unto the Tenant…”
- Reddendum Clause – unique to a lease and tries to explain how
much exactly you are paying under this lease

You can be asked in an exam that draft the Tenants Covenants in relation
to payment of interest

- “To pay interest on all rent or other moneys payable hereunder by

the Tenant to the Landlord and remaining unpaid for thirsty days
after becoming due at the rate set out in the Second Schedule
hereto”

How does an insurance clause apply in a lease? There is one for the
tenant and one for the landlord

- Insurance must cover things like fittings. The integrity of the

building is the business of the landlord

Redecoration

Common parts – e.g. corridor; driveway

“not to make untidy litter or obstruct the parts of the Building and things
used in common with the Landlord and the Landlord’s…”

Use clause

“not to use the property for any other purpose other than the purpose
stated in the Second Schedule hereto”

Blocking Windows

Nuisance clause

“not to do or suffer to be done anything in or upon the demised premises

of any illegal or immoral nature or which may be or become annoyance or
damage to the Landlord or Tenants or the occupiers…”

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Yielding up Clause

A lease is signed by both the landlord and the tenant.

Description of Property – this is what makes the lease lethal! Read it in

Patel Book

LEASE

Three aspects to pay attention to:

- Hereinafter called the demised premises is mandatory and has to be

included

- Remember issue of sketch plan if its not the whole thing

- Show which things will be used in common with the Landlord

1. THE LANDLORD HEREBY DEMISES unto the Tenant ALL THOSE the
shop premises with the Building and the Lavatory (hereinafter called
the “the demised premises”) forming part of Subdivision A of Plot No
4 Kabwe in the Central Province of Zambia as the same are for the
purposes of identification more particularly delineated and
described on Sketch Plan annexed hereto and thereon bordered red
TOGETHER with the right in common with the Landlord its servants
and agents and any person authorised by the Landlord to have alike
right to use the lavatories at the rear of the demised premises TO
HOLD to the Tenant from the First Day of November One Thousand
Nine Hundred and Sity-Six for the term of three years PAYING
THEREOFRE THEREFORE during the said term the yearly rent of
One Thousand Three Hundred and Twenty Pounds ($1.320) by equal
monthly instalments in advance of One Thousand…
2. THE LANDLORD HEREBY DEMISES unto the Tenant ALL THAT portion
of stand No.6972 Lusaka as the same is for purpose of identification
more particularly delineated and described on Sketch…YIELDING
AND OAYING THEREFOR during the term hereby granted the yearly
rent…

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3. THE LANDLORD demises unto the Tenant ALL THAT suite of rooms
(hereinafter called “the Flat”) known as Flat No. 1 situate in the
building (hereinafter called “the building”) erected upon the
hereditaments more particularly described in the first schedule
hereto TOGETHER with the right in common with the landlord and
others having the right to use for the purposes only of ingress and
egress from the flat and roadways now constructed on the
hereditaments described in the first schedule hereto EXCEPT and
RESERVED…
4. Offices

RENEWAL OF LEASE

Lease has ended and you want to continue with it. You draft a deed called
renewal of lease.

Option to renew clause talks about the time within which the tenant must
make an indication whether he wants to remain in the house or to leave

DEED OF SURRENDER

- Giving up an interest before it expires

- State lease – may surrender where may be a person wants flat land
as opposed to hilly land
- Can also apply where you entered into a 6-year lease agreement
with the tenant but after 4 years the tenant wants to move out and
decides to surrender
- Can also arise in circumstances where you own two separate
properties because you buy off your neighbour and apply under the
Urban Regional Planning Act to have the two consolidated. Deed of
surrender enables you to have the two properties duly surrendered
for the purpose of consolidating. The state will then give you a fresh
lease, under one title covering both properties.


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SECOND DEED OF SURRENDER

- Applies where a govt agency like a Ministry; Zambia Police, is

buying a piece of land which it may for example want to convert
into offices
- A ministry cannot own land in Zambia because it has no corporate
legal personality
- An agency like RDA, Water Resources Management Authority is
different because it’s been given legal personality by an Act of
Parliament
- Is called the same name; Deed of Surrender
- Parties: Vendor and THE PRESIDENT OF THE REPUBLIC OF ZAMBIA
(hereinafter called the “Reversioner”)
- Consideration clause – “…surrendering the Statutory Lease unto the
Reversioner and in consideration of the sum of Sixty Thousand
Kwacha”
- Commissioner signs for and on behalf of the President –
appointment is personal so it’s the person acting and not the office,
hence putting Wilfred Kopa Muma

DEED OF POSTPONEMENT/AND ADJUSTMENT OF PRIORITIES

 You get a loan from ZANACO for K1mil, and then get a second
mortgage from Stanbic for K500,000 against your property valued at
K2mil
 ZANACO has first priority but can sell that right
 Registered on the specific property
 If an interest is not registered its not enforceable
 When dealing with Building Society remember that it has members
of a sealing committee

DEED OF RELEASE AND DISCHARGE

 Dealing with documents that have to go to PACRA, e.g. Debenture

and someone has paid off, therefore discharged it
 Discharge means part of the assets involved land

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 Deed of release relates exclusively to an asset such as a charge

without involving land property
 Where there is a requirement for a guarantee to be provided, the
person and the guarantor are both released after paying off

DEED OF VARIATION

 Used where the terms and conditions of a lease are being varied;
also used where you want to change a property from residential to
commercial
 [A lease for one year need not be registered]

DEED OF RECTIFICATION

 General Principle: Correcting an error in a deed, e.g. names or the

amount
 Cannot be used to correct a contract of sale, its not a deed
 Doesn’t have a specific format because it differs depending on the
type of document you are rectifying

LODGMENT SCHEDULE – is in the Exam (covers 50%)

THE LANDS AND DEEDS REGISTRY ACT

SECTION 43

APPLICATION FOR A SEPARATE CERTIFICATE OF TITLE

If for example asked: you have a person who owns a big piece of land of
about 2 hectares then subdivides it into three and would like to sell one
piece but also have the other property in the person’s names. What is the
procedure?

Learn how to draft a Notice to Complete!!! It is basically a document

where you are calling on the purchaser to pay off the balance and any
interest applicable. It is a notice written by the vendor to the purchaser’s
advocates saying can you come forward to make good the difference.

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Movable properties can be charged under:

1. The Agriculture Credits Act – familiarise yourself with Agricultural

charges.
2. Movable Properties Securities Interest Act – broader and has some
aspects relating to agricultural charges

Appreciate the procedure of the Agricultural Credits Act. Any charge

created on assets of a corporate body, there is an obligation in the law to
ensure that it is registered with PACRA.

Lodgement Schedules and Procedures

It is a summary of the documents that you submit to a particular Deeds

Registry and serves as evidence of actual lodgement of the documents.
There different types of documents lodged for different transactions.

Five S.I’s for Exam on this:

a. 2004 – consideration fees payable for an Assignment is 1% of the

value of the property
b. 2005 S.I – did not repeal the previous one only amended a small
part
c. 2011 Amendment
d. S.I No 41 of 2015 – created a restriction that if the 1% of the
consideration fee is more than K15 000 then you only pay K15 000
e. 2016
1. Consent Application Process
i. Copy of COT
ii. Consent Application forms (usually in duplicate)
iii. ID Documents for Vendor and Purchaser (section 3 of the
Lands Act – eligibility to own land)
 Certificate of Incorporation of a Corporate Body
 Certificate of Shareholding from PACRA
 If the company is trying to get land on the basis of an
Investment license as issued by ZDA, submit Investment

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Certificate – most common way under which foreigners

own land
 Section 3(3) of the Lands Act has 11 circumstances
under which a foreigner can own land
 e.g. hunting concessions issued by the
Department of Wildlife allows a foreigner to
acquire land;
 when a Bank like Access Bank which is
incorporated in Nigeria but registers under the
Banking and Financial Services Act in Zambia and
under PACRA would be allowed to own land in
Zambia.
 A foreigner who inherits land does not need to
apply for consent
iv. Fees
2. Assignments
i. Original Certificate of Title
ii. An Assignment and copy i.e. 2
iii. State Consent to Assign
iv. DR 53 Form
v. ZRA PTT receipt and Tax Clearance Certificate
vi. ZIMLIIS Form

Disbursements (how much will you pay for this transaction?)

i. COT fee
ii. 1% of Consideration fees (max of K15 000)

Questions

1. John owns stand 99330 Lusaka. He decides to subdivide the

property into 4 portions namely A, B, C and the Remaining Extent.
He has since obtained diagrams for the subdivision seeks your

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services as a lawyer. He sold subdivision A to Mary who is buying

the property using a mortgage from Stanbic Bank. He has also given
Subdivisions B and C to his daughters Jane and Alice respectively.
Advise what procedure you will employ to effect the instructions?
Prepare a lodgement schedule showing all disbursements.
a) Procedure:
- Apply for marking off – actual marking by Survey Department on
the original diagram to show that subdivisions A, B and C have been
marked off and that the area has reduced, leaving the remaining
extent.
- Application for separate COTs
- Effect/Process the Assignment and Mortgage for Subdivision A
which is in the name of John – assigning to Mary. There will be need
to register a mortgage in favour of Stanbic
- Effect the Deed of Gift – there will be one Deed of Gift indicating the
two properties were John gives to Jane and Alice
- Certificates of title will be issued in respect of different
beneficiaries; first one A in the name of Mary and handed to
Stanbic, B in the name of Jane and C in the name of Alice. The
remaining extent will remain in the name of John.
b) Lodgement Schedule
- Mandatory that you put a heading and prepare a table with clear
columns and rows.

Item No Date of Nature of Doc Parties

Document
1. COT
2. Diagrams for Subs A, B & C
3. Application for separate COT
4. Assignment and copy
5. DR 53 – Assignment of Sub A
6. State consent – Sub A
7. ZRA PTT Receipt and Tax Clearance Certificate

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8. Mortgage and copy

9. DR 53 – for mortgage (Parties: Stanbic and Mary)
10. Deed of Gift and copy
11. DR 53 – Sub B
12. DR 53 Sub C
13. State Consent – Sub B
14. State Consent – Sub C
15. ZRA Tax Exemption Certificate
c) Disbursements
1. Marking off – K250.20 x 3 = K750.60
2. Application for Separate COT – K83.40
3. COTs fee (application for separate COT) – K166.80 x 4 =
K667.20
4. Assignment registration fee – 1% of sale price (k1,000, 000) =
K10, 000
5. COT fee for the Assignment – K166.80
6. Mortgage reg fee – K4,000 (1% of K1,000, 000 exceeds K4000)
7. Deed of Gift registration fee – K83.40
8. COT fee for Deed of Gift K166.80 x 2 =

Question 2

Mike Njovu owns Farm 988879 Serenje. The property has a mortgage
registered in favour of ZANACO to secure K1m with interest. The Bank
forecloses and sells the property to Marvin who finances the transaction
by a loan from Citi Bank. Marvin on payment of the down payment placed
a caveat on the property to secure his interest. Your firm is engaged to
effect the instructions of the bank and change ownership to Marvin and
also register the Citi Bank Mortgage. Draft the lodgement schedule.

Mortgage deed

Lodgment Schedule

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1. Withdrawal of Caveat
2. Register the Court order to foreclose and sale
3. Certificate of Title [
4. Assignment x 3 [ Parties are Zanaco and Marvin]
5. Consent to assign [The President and Zanaco]
6. DR 53 [Zanaco and Marvin]
7. ZRA Property transfer tax receipt and tax clearance certificate
8. Mortgage [Marvin and Citi Bank]
9. DR 53 [Marvin and Citi Bank]

Disbursements

1. Withdrawal of caveat K83.40

2. Court Order K83.40
3. Cot K166.80
4. Assignment K10,000
5. Mortgage K4,000
Total: K14,333.60

Synopsis of the Lands and Deeds Registry Act

Definitions

 Court = the High Court; all disputes relating to this Act must be
taken to the High Court
 Mortgage = includes a deposit of title deeds or documents with the
object of creating an equitable mortgage on the property comprised
in such deeds or documents and any charge
 Probate of the will = includes letters of administration with or
without the will annexed
 Sub-mortgage = a mortgage by a mortgagee of rights held by him
under a mortgage, i.e. mortgagee able to assign their rights
 Testator = includes a person dying intestate
 Register = means the

Section 3

 Establishment and constitution of registry of deeds

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 Makes provision for there being a registry in every district

 There basically three deeds registries at the moment: Lusaka,
Choma and Ndola

Section 4 = Must Know! Provides for documents to be registered.

 Sec 4(1) “…must be registered within the times specified in the

Registry or in a District Registry if eligible for registration in such
District”

Section 5 – times within which registration must be effected

 Section 5(2)
 Section 5(3) probate of a will affecting land or any interest in land
shall be registered within 12 months of the grant thereof the sealing
thereof under the provisions of the Probates (Resealing) Act, as the
case may be

Section 6 – documents to be void for want of registration

 Sec 6(ii) – the effect of it being null and void is only to the extent of
land transactions

Section 7 – priority of documents and date of registration

 Section 7(1) all documents required to be registered as aforesaid

shall have priority according to the date of registration, notice of a
prior unregistered document required to be registered as aforesaid
shall be disregarded in the absence of actual fraud
 Section 7(2) the date of registration shall be the date upon which
the document shall first be lodged for registration in the Registry or,
where registration is permitted in a District Registry, in such District
Registry

Section 4(1) – mandatory to register leases over one year

Section 8 – optional registration of documents not required to be

registered e.g. lease of under one year

Section 9 – registers to be kept

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 Lands register
 Common leasehold register – has to do with transactions under the
Common leasehold Act flats, office blocks,
 Miscellaneous register – documents that are not related to land, e.g.
a debenture, trusts

Section 11 – correction of errors or omissions in Registers

 Cancellation of wrongly registered caveats

 11(1) and (2)

Section 13 – identity of person presenting document for registration

Section 16 – details of registration - what must appear in the register

 Names of the parties

 Date of the document
 Date of the registration
 Brief description of the nature of the document

Section 16(2) allows for electronic record

Section 17 – copies to be filed consecutively – this is tied to priority of

documents

Section 18 – memorandum of registration to be endorsed on original –

when preparing documents e.g. assignment you leave space at the top for
this endorsement that it has been duly registered

Section 21 – registration does not cure defects – e.g. the fact that a
certificate of title has been issued and transaction lodged does not cure a
defect such as fraud.

Section 22 – all three registries are open for search

Section 23(1) - official certificates of search requisition – needed for

purposes of court cases. Can be shown and adduced as evidence what
was revealed by a search

Section 25 – admissibility in evidence of certified copies

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Provisional Certificates of Title:

Section 29 – COT required before registration – this can be a title or a

provisional COT

Section 30 – who may obtain a Prov COT? only a holder of land in fee
simple or as absolute owner or to the original lessee or subsequent
transferee of a State lease

Section 32 – effect of issue of a prov COT – if someone else has better

title, then that prov COT can be cancelled

Section 33 – Effect of issue of COT: conclusive evidence of ownership. Title

is legal and not equitable interest

Section 34 – restriction on ejectment after issue of COT

Listen to recoding for what was said in between!

Section 51 – joint tenants and tenants in common

Section 52 – issue of COT may be withheld for fourteen days in certain

cases, esp where it comes to a duplicate COT

Section 56(1) – declaration (which is like an affidavit) may be made in

case of loss of original Certificate. The following four documents must be
lodged for a duplicate COT:

 Statutory declaration by the registered proprietor (title holder)

certifying that I have made a thorough search and I cannot find the
COT
 Government Gazette Notice
 Notice from a Newspaper with wide circulation
 Certified true copy of a diagram that was in the original title (CTC)

Section 56(2) –

Section 56(4) – this is what gives rise to the two adverts

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Section 58 – purchaser from registered proprietor shall not be affected by

notice.

Section 59 – no liability on bona fide purchaser or mortgagee. If the one

bought property in a fraudulent transaction acted bona fide, that title will
not be cancelled.

As freehold was abolished, this Act was not amended so some of the
implied conditions don’t arise and would have to be provided for expressly
in the lease. E.g. section 64 – change in assent – provided for under ZRA
laws which provide that change of ownership to an estate is tax exempt

Section 66(1) – refers to the power of sale – MUST KNOW THIS! It gives the
basis upon which a mortgagee can have power of sale:

1. Mortgage is made by deed;

2. Mortgage money payable has become due and someone has failed
to pay
3. Mortgage is not redeemed before the sale
4. You cannot exercise power of sale without an order of the High Court
– only court that has power to extinguish the equity of redemption
as interpreted by the SCZ

Section 67(1) – how discharge of mortgage is effected

Section 67(3) – when given a question that a mortgage is being

discharged, draft the lodgment schedule for discharge, you lodge:

1. COT
2. Discharge and copy
3. Original Registered Mortgage or Charge

Disbursements are only K83.40

Section 68 – persons claiming under transmission may apply to have the

same registered.

Section 70 – caveat may be entered on behalf of beneficiaries under any

will or settlement. this is one of the bases upon which a caveat may be

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entered – where you show that you are beneficially interested under a will
or divorce settlement.

Section 74 is NB because it deals with the fact that no entry of trusts to be

made on Register except those specifically authorised. Don’t try and put
entries that have no meaning.

Section 74(2) – trusts affecting land may be declared by any deed or

instrument, and such deed or instrument mat be registered in the
Miscellaneous Register.

Section 75 – vesting in new trustees

Section 76 – caveat against dealing with land. The caveat from Min of
Lands doesn’t have a duration, it doesn’t expire. Form does not require
title holder to consent anywhere.

Section 77(1) – particulars to be stated in caveat. The reason must be

stated clearly otherwise the Registrar may not register it

Section 81 – procedure for removal of caveat – registered proprietor E.g.

Administrator; who is ‘other interested person’? if you cannot find the
person who placed the caveat or is being unreasonable you can bring an
action before the court for the person to show cause as to why the caveat
should not be removed.

Section 82(1) – person entering caveat without cause liable for damages.
E.g. a caveat based on a debt that has nothing to do with land.

Section 84(c) - cancellation - can be used to ask the Registrar to correct

or cancel certain entries e.g. where a property being surrendered, instead
of preparing a Deed of Surrender, can invoke sec 84(f) which allows the
lawyer to apply to the Registrar who will out an interest that lease
surrendered and allow for a new title to be issued. Can be used where e.g.
a mortgage placed in 1904 and the bank no longer exists. If the Registrar
refuses, you reserve the right to go to court to compel the Registrar.

Section 85 – penalty for failure to produce instruments when required by

Registrar

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Section 87 – appeal to court from decision of Registrar

Section 88 – registrar may submit special case

Section 91 – mining rights cap 213 – one of the areas where we need to
revise our laws. Currently, mining rights take precedence over surface
rights. The surface right holder must still be compensated. If a person has
a concession license issued for a national park and another, a mining right
over the same area, and another a title, which one takes precedence? At
the moment, it’s the mining right which takes precedence – effect of this
is that settlors on the land being evicted. Should they be displaced
without due process? What is involved in that due process?

Practitioner’s certificate – providing this as one who has conduct of the

matter, e.g. may constitute evidence required by registrar

Form 2 – procedure for applying for Provisional COT – in practice they are
not being issued

Form 4 – application for full COT

Form 5 – how a COT should look like

Form 6 - Deed of Transfer – Does not cover everything. Learn this but
relate it to what he gave us.

Form 7 – An Assent based on sec 61(2)

Form 8 - a caveat template

Subsidiary legislation deals with; Regs of emphasis:

 Reg 9 – time for lodging 9am-12.30pm

 Reg 3 - allows Registrars to query documents
 Reg 4 – documents for deducing title – only those that have been
previously registered
 Reg 6 – form of documents; original and copy
 Reg 6(2)(d) – the upper half of the front page of any document shall
be left blank for purposes of registry endorsement
 Reg 13 – official search

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Take note of the Movable Property Security Interest Act fees and
procedure of lodgment both at PACRA and Lands and Deeds, e.g. where
you have a debenture and another charge

S.I 53 of 2014 which refers to the Companies Fees Amendment 2015.

When you apply to PACRA, there is a requirement for you to pay 1% of the
amount borrowed but not more than 13889 fee units (K4166.70). If the 1%
works out to be more than K4000 you only pay K4000.

Discharge of mortgage at PACRA is K843.40 as opposed to K83.40 at the

LDR. When preparing a lodgment schedule, you will show the case at the
Lands and Deeds registry, and if it is a situation that requires you to go to
PACRA as well, you show one for PACRA including the disbursements.

When a debenture is paid off, you use a Memorandum of Satisfaction

to show that you have discharged and paid it off.

LANDS ACT

Section 3 – all land to vest in the president

Section 3(3) – MUST KNOW! Eleven circumstances under which a non-

Zambian may be able to hold land:

1. Permanent resident
2. Investment license from ZDA
3. Obtain Consent of the President in writing
4. A Company registered under the Companies Act and have 75% or
more shares owned by the non-Zambian
5. where the non-Zambian is a statutory corporation created by an Act
of Parliament;
6. where the non-Zambian is a co-operative society registered under
the Co-operative Societies Act and less than twenty-five per centum
of the members are non-Zambians;
7. where the non-Zambian is a body registered under the Land
(Perpetual Succession) Act and is a non-profit making, charitable,
religious, educational or philanthropic organisation or institution

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which is registered and is approved by the Minister for the purposes

of this section;
8. where the interest or right in question arises out of a lease, sub-
lease, or under-lease, for a period not exceeding five years, or a
tenancy agreement;
9. where the interest or right in land is being inherited upon death or is
being transferred under a right of survivorship or by operation of
law;
10. where the non-Zambian is a Commercial Bank registered
under the Companies Act and the Banking and Financial Services
Act; or Cap. 388
11. where the non-Zambian is granted a concession or right
under the National Parks and Wildlife Act.

Under customary tenure, land cannot be alienated by the President

without consulting the chief or local authority in which it is located. If it
falls under National Parks, then National Parks authority needs to be
consulted and any other person who has an interest.

Section 4 – land cannot be alienated without paying consideration; except

where the land is for public purpose

Section 4(2) – describes public purpose

Section 5 – consent of the President because all land is vested in him .

Consent is applied for by the current title holder and the purpose is to
check eligibility to own the land. You cannot apply for Property Transfer
Tax minus obtaining Consent.

- ID for both title holder and purchaser

- Copy of the COT
- If it is a corporate body, you need certificate of incorporation and
shareholding certificate from PACRA

Requirements for PTT Clearance:

- State consent

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- ID docs of seller and buyer (if corporate body certificate of

registration and shareholding certificate)
- TPIN certificate
- Valuation report if property is in excess of K500,000 [tax currently
based on 5% of the value as determined by ZRA]
- Deed

Section 6(1) – surrender of land held by a council – if a person was holding

land under sub-lease from the council, they are deemed to be holding it
from the President. The person in the memorials of the title can make an
application requesting for a title to be issued in their name under section
6(1). Disbursements will be K83.40 for the application/registration and
K166.80 for the COT.

Section 7 - Customary holdings to be recognised and to continue

Section 8 – conversion from customary to leasehold tenure

- Fill in forms 1 (you the applicant shows your details), 2 (consent of

the chief) and 3 (consent of the council through CEO, i.e. Town Clerk
if Municipality or City; or Council Secretary if a District)
- Prepare a sketch plan depicting the land in question endorsed
(stamped and signed) by the chief and endorsed also by the Council
CEO
- Produce minutes from the Council meetings to prove that they
approved the application

Section 9 - Prohibition of unauthorised occupation of land

Section 9(2) – basis for eviction of squatters

Section 10 – leasehold tenure renewable upon expiry as long as no lease

conditions have been breached

Section 13 – re-entry and repossession: need to give 3 months’ notice

This Act creates a Lands Tribunal under section 15 – it however hasn’t

been given exclusive jurisdiction like the Industrial Relations Court. The
High Court has original jurisdiction to determine any matter, and where

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both parties agree matters can be heard by the Subordinate Court. The
Tribunal is a circuit court and goes around the country to hear matters.
Appeals lie in the High Court.

This Act does not have the position of Commissioner of Lands, such
powers are based on an S.I of 1964 another of 1989. They are blanket
powers with no specifications of what can and cannot be done.

Revision

1. The assignment and its cousins are a must know – deed of transfer,
deed of gift, contract of sale, lease
2. Mortgage and its cousins are a must know – further charge, second
mortgage
3. Completion statement
4. Must know the 8 things about special conditions and the order in which
they follow. It’s only a special condition if you’re varying the general
conditions
5. Lodgment schedule

Can call him between 17:00 and 20:00 up to the 15th. 0955824325

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