How absentee real property owners may protect their property rights

Jul 08, 2021

Broadly speaking, property is anything capable of being owned while land is an area of ground with boundaries including minerals or resources below the surface and anything growing on or attached to the surface.

Nancy Birungi

Admin .
@New Vision

By Nancy Birungi

Understanding the terminologies

In real estate, several terminologies are used interchangeably for example land, property, real estate, and real property. These must be demystified from the onset.

Broadly speaking, property is anything capable of being owned while land is an area of ground with boundaries including minerals or resources below the surface and anything growing on or attached to the surface. On the other hand, real estate is a term that refers to the physical land, structures, and resources attached to it while real property is a concept that includes real estate and the bundle of legal rights related to the real estate for instance the right to possess, control, exclusion, enjoyment and disposition of the real estate.

 Land ownership as recognized by the Land Act

 Land Owner – S.2 of the Land Act defines a landowner as any Ugandan Citizen who owns or holds land under any of the four (4) recognized systems of landholding i.e. Mailo, Freehold, Leasehold and Customary tenure, however, it is imperative to note that under the leasehold tenure system, foreigners are entitled to own land in Uganda under S.40(2) of the Land Act for a period not exceeding 99 years therefore for all intents and purposes, the guidance below may be utilized by both nationals and foreigners.

Protection of Proprietary Rights

Owners of real property have several ways in which they may practically and legally protect their proprietary rights, these include ascertaining prior proprietorship, boundaries, neighbours, and equitable interests affecting the land before purchase, ensuring that transaction documents are duly executed and that they are dutifully registered on the owner's certificate of title while doing so it is imperative to ensure that the details on the title are mirrored on the registry copy at the land office. Another mistake that owners make is failing to make the acquaintance of local council chairpersons. For an absentee property owner, introducing yourself to the local area chairperson might be the saving grace you may need to stop trespassers taking over your property and enforcing your rights before the prescription period of 12-years elapses.  Further, owners of land may erect expressly noticeable physical structures or boundaries like buildings or at the very least erect fencing as a boundary, commission caretakers to look after the property and, the route which is less travelled is the one of placing caveats due to the misconception that it is a tedious, expensive and lengthy process.

A caveat is a document in which a person who claims an interest in registered land registers at the Registry of Lands to stop any transactions from being carried out in respect to the land.

The registered proprietor of land may lodge a caveat against land registered in his or her name under the authority of S.139 of the Registration of Titles Act. Such caveats are usually lodged in the following circumstances which list is not in any way exhaustive:

  • The caveator/registered proprietor has revoked a power of attorney relating to the subject property but has been unable to advise of the revocation;
  • The caveator has lost possession of a signed instrument e.g. transfer of land, and has not been paid;
  • The caveator/registered proprietor has lost possession of the duplicate certificate of title either by fraud, theft, or misplacement;
  • The caveator/registered proprietor has reasonable suspicions that some unscrupulous individuals are making attempts to deal in their land;
  • The caveator/registered proprietor is an absentee landowner who may not be in possession or have the privilege of undertaking a personal physical inspection of the property due to staying overseas or being a frequent traveller;
  • And last but not least where the caveator/registered proprietor does not have any development on the land and has a reasonable fear that trespassers of fraudsters may take advantage of this and try to dispossess the proprietor of their property.

Required caveat form, format, procedure, and documents

The evidence to support such a caveat would be embossed caveat documents duly witnessed by an Advocate and signed by the caveator and dated Statutory/ Declaration signed by the Deponent and a Commissioner for Oaths or notary public as the case may be setting out the facts and repeating the claim of the caveator lodged with the requisite land office by the registered proprietor themselves or a lawyer acting on their behalf.

WaiverThe information provided above is intended as a general guideline and does not exclusively amount to legal advice. Please seek professional assistance from your lawyer to determine the most appropriate action to protect your proprietary rights.

The writer is a commercial, property, real estate lawyer and governance professional currently serving as the Head Legal Counsel & Company Secretary at Knight Frank Uganda.

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