It is risky to buy kibanja without landlord’s consent
Jun 09, 2008
<b>By Hillary Nsambu </b><br><br>The Land Bill has provoked mixed reactions. Proponents of the proposed law argue that it is intended to protect squatters from unlawful evictions. On the other hand, opponents argue that it will not solve land conflicts because it does not cure the flaws in the Lan
By Hillary Nsambu
The Land Bill has provoked mixed reactions. Proponents of the proposed law argue that it is intended to protect squatters from unlawful evictions. On the other hand, opponents argue that it will not solve land conflicts because it does not cure the flaws in the Land Act. One of the flaws in the Land Act is that it creates conflicting interests over the same piece of land. If a piece of land has a title but is occupied by a squatter, it is the latter’s kibanja and the titleholder’s registered land. Both the squatter (kibanja holder) and the titleholder (landlord) have interests in the same piece of land and neither can remove the other at will. The problem arises when a squatter wants to sell his kibanja. The Land Act requires that the kibanja holder not only informs the landlord of the intention to sell but also gives him the first priority to buy.
However, many people have bought bibanja without the landlords’ knowledge. Sometimes they get way with it but other times they do not. John Wampamba, a buyer, did not get away with it. Wampamba paid sh28m to Musa Sebowa for a kibanja in Namungona, Kampala, and a sale agreement was duly signed before a lawyer. But when he tried to take possession of the land, he was stopped. The conflict ended in the High Court at Kampala where he sued those who stopped him from occupying the kibanja. The case was recorded as John Wampamba versus Christopher Ntege Magimbi (Civil Suit No. 615 of 2006 Land Division). Court noted that the sale agreement was actually invalid because the landlord was not aware of the transaction.
Therefore, if one wants to buy a kibanja of whatever size, he or she must involve the landlord before entering into any deal of that nature. In this particular case, those who stopped the buyer from occupying the kibanja even obtained a lease from the Buganda Land Board (landlord).
It is incumbent upon the buyer to ask the seller whether the landlord has ever been informed of the intention to sell the property. The purpose of informing the landlord is to seek his or her consent. The law gives the landlord the first priority to repossess that piece of land by compensating the kibanja holder.
The High Court threw out Wampamba’s case in which he had dragged the leaseholder to court seeking to be declared a bona fide occupant of the kibanja, claiming that the leaseholder had been fraudulently registered on it. Although his lawyer brandished a sale agreement, court said it was not a complete sale agreement without the consent of the landlord (Buganda Land Board).
“Without showing that the landlord gave consent to the sale of the tenancy by occupancy, the plaint has failed to disclose a lawful acquisition of the kibanja. This court is, therefore, empowered to reject such plaints which fail to disclose causes of action,†the court ruled. The court also asked the buyer’s lawyer to state the procedure of selling a kibanja by a tenant under the Land Act. The lawyer said it is with the consent of the landlord.
The court further asked the lawyer to state the significance of the landlord in this matter. The lawyer replied that it was for validating or invalidating the sale of the land.
The court noted that in this case, the buyer should have involved the Buganda Land Board, the custodian of the land in issue, before entering into any sale agreement with the purported seller.
The principle in this case is that a buyer and a seller of a kibanja are both required to involve the landlord before entering into a contract. But it is more incumbent upon the buyer than the seller to be more vigilant. This should be done to avoid buying “hot airâ€, as laxity may cause bigger financial loss to the buyer than to the seller.
The writer is a journalist
The Land Bill has provoked mixed reactions. Proponents of the proposed law argue that it is intended to protect squatters from unlawful evictions. On the other hand, opponents argue that it will not solve land conflicts because it does not cure the flaws in the Land Act. One of the flaws in the Land Act is that it creates conflicting interests over the same piece of land. If a piece of land has a title but is occupied by a squatter, it is the latter’s kibanja and the titleholder’s registered land. Both the squatter (kibanja holder) and the titleholder (landlord) have interests in the same piece of land and neither can remove the other at will. The problem arises when a squatter wants to sell his kibanja. The Land Act requires that the kibanja holder not only informs the landlord of the intention to sell but also gives him the first priority to buy.
However, many people have bought bibanja without the landlords’ knowledge. Sometimes they get way with it but other times they do not. John Wampamba, a buyer, did not get away with it. Wampamba paid sh28m to Musa Sebowa for a kibanja in Namungona, Kampala, and a sale agreement was duly signed before a lawyer. But when he tried to take possession of the land, he was stopped. The conflict ended in the High Court at Kampala where he sued those who stopped him from occupying the kibanja. The case was recorded as John Wampamba versus Christopher Ntege Magimbi (Civil Suit No. 615 of 2006 Land Division). Court noted that the sale agreement was actually invalid because the landlord was not aware of the transaction.
Therefore, if one wants to buy a kibanja of whatever size, he or she must involve the landlord before entering into any deal of that nature. In this particular case, those who stopped the buyer from occupying the kibanja even obtained a lease from the Buganda Land Board (landlord).
It is incumbent upon the buyer to ask the seller whether the landlord has ever been informed of the intention to sell the property. The purpose of informing the landlord is to seek his or her consent. The law gives the landlord the first priority to repossess that piece of land by compensating the kibanja holder.
The High Court threw out Wampamba’s case in which he had dragged the leaseholder to court seeking to be declared a bona fide occupant of the kibanja, claiming that the leaseholder had been fraudulently registered on it. Although his lawyer brandished a sale agreement, court said it was not a complete sale agreement without the consent of the landlord (Buganda Land Board).
“Without showing that the landlord gave consent to the sale of the tenancy by occupancy, the plaint has failed to disclose a lawful acquisition of the kibanja. This court is, therefore, empowered to reject such plaints which fail to disclose causes of action,†the court ruled. The court also asked the buyer’s lawyer to state the procedure of selling a kibanja by a tenant under the Land Act. The lawyer said it is with the consent of the landlord.
The court further asked the lawyer to state the significance of the landlord in this matter. The lawyer replied that it was for validating or invalidating the sale of the land.
The court noted that in this case, the buyer should have involved the Buganda Land Board, the custodian of the land in issue, before entering into any sale agreement with the purported seller.
The principle in this case is that a buyer and a seller of a kibanja are both required to involve the landlord before entering into a contract. But it is more incumbent upon the buyer than the seller to be more vigilant. This should be done to avoid buying “hot airâ€, as laxity may cause bigger financial loss to the buyer than to the seller.
The writer is a journalist