CONVEYANCING

3.1 INTRODUCTION TO CONVEYANCING AND LEGAL DRAFTING

3.1.1 CONVEYANCING LAW
3.1.2 LEGAL DRAFTING (SPECIFIC TO CONVEYANCING)
3.2 LAND TENURE SYSTEM
3.2.1 LEASEHOLD TENURE
3.2.1.1 LEASEHOLD ADMINISTERED BY MINISTRY OF LANDS
3.2.1.2 LEASEHOLD ADMINISTERED BY LOCAL AUTHORITIES
3.2.1.2.1STATUTORY HOUSING AREAS
3.2.1.2.2STATUTORY IMPROVEMENT AREAS
3.2.1.2.3LAND RECORD CARD AREAS
3.2.1.3 LEASEHOLD UNDER RESETTLEMENT SCHEMES
3.2.2 CUSTOMARY TENURE
3.2.2.1 ACQUISITION PROCEDURE
3.2.2.2 MAINTAINING CUSTOMARY TENURE
3.2.2.3 CONVERSION TO LEASEHOLD
3.3 DRAFTING AND CONVEYANCING PROCEDURE
3.3.1 TAKING INSTRUCTIONS
3.3.2 THE CONTRACT
3.3.2.1 MATTERS PRIOR TO CONTRACT
3.3.2.1.1 SEARCHES AND INVESTIGATION OF TITLE
3.3.2.2 DRAFTING THE CONTRACT
3.3.2.3 POSITION AFTER CONTRACT
3.3.2.3.1 REGISTRATION OF A CAVEAT
3.3.2.3.2 CONSENT TO ASSIGN
3.3.2.3.3 PROPERTY TRANSFER TAX
3.3.2.3.4 SUB-DIVISION AND MARKING OFF
3.3.2.3.4.1 LAND SURVEY ACT
3.3.2.3.4.2 COMMON LEASEHOLD SCHEMES ACT
3.3.2.3.5 DRAFTING AND REGISTRATION OF ASSIGNMENT
3.3.3 COMPLETION/NOTICE TO COMPLETE
3.3.4 POST – COMPLETION PROCEDURE
3.3.4.1 REPORTING TO CLIENT
3.3.4.1.1 TYPES OF DOCUMENTS TO BE RETAINED/HANDED OVER TO THE
OTHER PARTY
3.3.4.2 DRAWING BILLS OF COSTS.
3.3.5 DEEDS – DRAFTING, LODGEMENT (LODGEMENT SCHEDULE) &
REGISTRATION PROCEDURE
3.3.5.1 ASSIGNMENT
3.3.5.1.1 MORTGAGE
3.3.5.1.1.1 MOVABLE PROPERTY SECURITY ACT
3.3.5.1.2 PERSONAL REPRESENTATIVE
3.3.5.1.3 MORTGAGEE
3.3.5.1.4 LIQUIDATORS
3.3.5.1.5 RECEIVERS
3.3.5.2 TRANSFER
3.3.5.3 GIFT
3.3.5.4 MOIETY
3.3.5.5 ASSENT
3.3.5.6 PARTITION
3.3.5.7 SEVERANCE
3.3.5.8 EXCHANGE
3.3.5.9 DEED OF POSTPONEMENT AND ADJUSTMENT OF PRIORITIES
3.3.5.10RECTIFICATION
3.3.5.11SURRENDER
3.3.5.12SUBSTITUTION OF DIAGRAMS
3.3.5.13RELEASE
3.3.5.14VESTING SEPARATE TITLES
3.3.5.14.1 UNDER THE LAND SURVEY ACT
3.3.5.14.2 UNDER THE COMMON LEASEHOLD SCHEMES ACT
3.3.5.15 OTHER DEEDS
3.3.6 APPLICATION FOR LOST DOCUMENTS
3.3.6.1 DESCRIPTION OF A PROPERTY UNDER A LEASE
3.3.6.1.1 CONSIDERATION CLAUSE
3.3.6.1.2 DEMISE CLAUSE
3.3.6.1.3 HABENDUM CLAUSE
3.3.6.1.4 REDDENDUM CLAUSES
3.3.6.2 RENEWAL OF A LEASE
3.3.6.3 SURRENDER OF A LEASE
3.3.6.4 EXPIRATION OF A LEASE
3.4 FILING PROCEDURE AT MINISTRY OF LANDS, LOCAL AUTHORITIES,
ZRA AND COMPANIES REGISTRY
3.5 MORTGAGES – DRAFTING, LODGEMENT (LODGEMENT SCHEDULE) &
REGISTRATION PROCEDURE
3.5.1 TYPES OF MORTGAGES
3.5.1.1 MORTGAGE
3.5.1.2 FURTHER CHARGE
3.5.1.3 SECOND MORTGAGE
3.5.1.4 THIRD PARTY MORTGAGE
3.5.2 DISCHARGE OF MORTGAGES/MEMORANDUM OF SATISFACTION
3.5.3 PARTIAL DISCHARGES
3.5.4 OTHER SECURITIES:
3.5.4.1 DEBENTURE
3.5.4.2 FLOATING/FIXED CHARGE
3.5.4.3 AGRICULTURAL CHARGES
3.6 LEASES – DRAFTING, LODGEMENT (LODGEMENT SCHEDULE) &
REGISTRATION PROCEDURE
3.7 COVENANTS AND EASEMENTS – DRAFTING, LODGEMENT (LODGEMENT
SCHEDULE) & REGISTRATION
PROCEDURE
3.7.1 MINING
3.7.2 OIL AND GAS EXPLORATION
3.7.3 WATER EXTRACTION AND BOREHOLE REGISTRATION
3.7.4 FORESTS, GAME MANAGEMENT AREAS AND OTHER PROTECTED
AREAS
3.8 TRUSTS – DRAFTING, LODGEMENT (LODGEMENT SCHEDULE) &
REGISTRATION PROCEDURE
3.1 INTRODUCTION TO CONVEYANCING AND LEGAL DRAFTING

3.1.1 CONVEYANCING LAW

Definition & Purpose

Conveyancing is the legal process of transferring ownership (title) of immovable property
(land or buildings) from one party to another. This process involves:
- Drafting & executing legal documents (e.g., sale agreements, leases, mortgages).
- Investigating title (ensuring the seller has valid ownership and the property is free from
encumbrances).
- Registering transactions at the Land and Deeds Registry to provide constructive notice.

Key Objectives:
1. Ensure indefeasible title (the buyer gets legally enforceable ownership that is free from
disputes).
2. Protect all parties (including sellers, buyers, lenders, and the government).

Legal Framework
Primary Statutes:
1. Lands Act (Cap 184)
- Section 3(1): All land in Zambia is vested in the President, held in trust for the people.
- Section 6: Requires Commissioner of Lands' consent for dealings such as sales,
mortgages, and leases.
- Section 7: Empowers the President to grant leasehold titles (typically for 99 years).
- Section 8: Governs the conversion of customary land to leasehold.

2. Land and Deeds Registry Act (Cap 185)

- Section 4: Establishes the Land and Deeds Registry for the registration of land
transactions.
- Section 5: Mandates registration of instruments like transfers and mortgages to make them
legally binding.
- Section 7: Registration provides constructive notice to the world (any person dealing with
the land is assumed to have knowledge of the transaction).
 - Section 9: Unregistered transactions are void against bona fide purchasers.

3. English Law (Extent of Application) Act (Cap 11)

- Section 2: Allows the application of English common law and equity where Zambian law
is silent or lacks sufficient detail.

3.1.2 LEGAL DRAFTING (SPECIFIC TO CONVEYANCING)

Key Principles in Legal Drafting

1. Clarity: Ensure terms like "The Purchaser" are clearly defined to avoid ambiguity.
2. Accuracy: The document must reflect the true intentions of the parties.
3. Legality: Conform to statutory requirements (e.g., the Land and Deeds Registry Act and
Lands Act).

Common Documents Drafted in Conveyancing

- Sale Agreements: Must comply with the Law Association's General Conditions of Sale
2018.
- Leases: Specify key details such as the duration, rent, and covenants.
- Assignments: Transfer of leasehold interest.
- Mortgages: Security for loans, governed by the Movable Property Security Act.

Key Legal References:

- Land and Deeds Registry Act, Sections 5-6: Defines the formalities for registrable
instruments.
- Law Association's General Conditions of Sale 2018: Provides standard terms for property
transactions.

3.2 LAND TENURE SYSTEM IN ZAMBIA

Zambia has a dual land tenure system, which consists of two main types of landholding:
1. Leasehold Tenure (State-administered)
2. Customary Tenure (Traditional administration by chiefs or headmen)
3.2.1 LEASEHOLD TENURE
Leasehold tenure is a form of landholding where the state grants land to an individual or
entity for a fixed period, typically 99 years, subject to statutory conditions. The holder has
exclusive possession, but must comply with conditions like paying ground rent and obtaining
consent for transactions.

Administered by the Ministry of Lands

- Applicable Law: Lands Act (Cap 184)
- Process:
1. Application to the Commissioner of Lands for leasehold.
2. Survey by a licensed surveyor under the Land Survey Act, Cap 188.
3. Payment of premiums, ground rent, and registration fees.
4. Issuance of Certificate of Title after the process is completed.

Rights Under Leasehold:

- Exclusive possession of land.
- Ability to assign, mortgage, or sublet (with Commissioner's consent as per Section 6 of the
Lands Act).
- Right to develop the land, subject to zoning laws and other regulatory requirements.

Key Case:
- Attorney General v Meer Care & Desai (2008): Confirmed the indefeasibility of registered
title, emphasizing the security provided by registration.

Leasehold Administered by Local Authorities

- Statutory Housing Areas: Planned residential zones.
- Statutory Improvement Areas: Upgrades informal settlements.
- Land Record Card Areas: A temporary system for informal settlements, typically preceding
formal title issuance.

Leasehold Under Resettlement Schemes

- Managed by the Resettlement Department (Office of the Vice President).
- Aimed at providing land to displaced persons and landless farmers.

3.2.2 CUSTOMARY TENURE

Land under customary tenure is governed by traditional norms, customs, and practices, and is
usually administered by chiefs or headmen. It accounts for about 94% of land in Zambia.

Acquisition Procedure
1. Approach Chief/Headman for land allocation.
2. Receive an allocation letter endorsed by the District Council.
3. If the individual wishes, land can be converted to leasehold.

Maintaining Customary Tenure

- Land rights are typically non-transferable (cannot be sold or mortgaged).
- Land is inherited according to customary law.

Conversion to Leasehold
Under Section 8 of the Lands Act, customary land can be converted to leasehold through the
following steps:
1. Obtain consent from the chief and the district council.
2. Application to the Commissioner of Lands.
3. Survey and issuance of a Certificate of Title.

Advantages of Conversion:
- The land becomes bankable (can be used as collateral for loans).
- The land is marketable (can be freely sold).

Key Case:
- Mpezeni v Ng'uni (2005): This case affirmed the role of chiefs in the allocation of
customary land and emphasized the need for legal recognition of such tenure.
EXAM-STYLE QUESTIONS

1. "Explain the difference between leasehold and customary tenure in Zambia, referencing
statutory provisions."
(Hint: Use Sections 3 & 8, Lands Act.)

2. "What are the steps to convert customary land to leasehold under Section 8 of the Lands
Act?"

3. "Why is registration of a deed critical under the Land and Deeds Registry Act?"
(Hint: Refer to Section 9.)

PRACTICE TASKS

- Draft a simple Assignment of Leasehold document to practice your drafting skills.

- Research the Property Transfer Tax Act (Cap 340) for transaction costs and their impact on
property sales.

3.3 DRAFTING AND CONVEYANCING PROCEDURE

3.3.1 Taking Instructions

The conveyancing process begins with the legal practitioner taking clear, detailed
instructions from the client — whether they are the vendor or purchaser. This stage is critical
because mistakes or omissions here can lead to invalid contracts or defective title transfers.

Key areas to clarify:

 Full legal names of the parties.

 The description and location of the property.
 Whether the client is selling or buying.
 Whether the property is under customary or leasehold tenure.
 Whether there is an existing mortgage or caveat.
 Whether the property is subject to sub-division.
Legal duty: Under Rule 3 of the Legal Practitioners' Practice Rules, a practitioner must act
competently and diligently — so gathering complete instructions is an ethical and
professional obligation.

3.3.2 The Contract

3.3.2.1 Matters Prior to Contract

3.3.2.1.1 Searches and Investigation of Title

Title investigation is one of the most crucial components. It helps ensure the vendor has the
right to sell and that the property is free from encumbrances.

 A search must be conducted at the Land and Deeds Registry (Section 4 and 5, Land
and Deeds Registry Act, Cap 185).
 This confirms:
o Legal owner of the land.
o Any registered encumbrances (e.g., mortgages, caveats).
o Whether the land is state or customary.

Case: Maureen Mwanawasa v Cecilia Namangolwa (2012) — court emphasized the

importance of conducting a thorough title search before sale to avoid disputes over
ownership.

3.3.2.2 Drafting the Contract

After confirming good title, a contract of sale is drafted. This must reflect:

 The identity of the parties.

 The consideration (purchase price).
 Description of the property (usually by plot number, area, and location).
 Completion date.
 Conditions precedent (e.g., obtaining consent from the Commissioner of Lands under
Section 6 of the Lands Act, Cap 184).

Standard reference: The Law Association of Zambia General Conditions of Sale (2018)
are widely used and provide a solid contractual framework.

The contract must be executed in writing (per Section 5 of the Land and Deeds Registry Act),
signed, and witnessed to be enforceable and registrable.

3.3.2.3 Position After Contract

3.3.2.3.1 Registration of a Caveat

Once the contract is executed, the purchaser (or their lawyer) may register a caveat under
Section 15 of the Land and Deeds Registry Act, to protect their equitable interest in the
property.

This serves as a warning to third parties that a transaction is underway.

Case: Nyirenda v Kalunga (2000) — court held that registration of a caveat gives
constructive notice to the world and prevents fraud by third parties.

3.3.2.3.2 Consent to Assign

Most leasehold properties in Zambia require prior written consent from the Commissioner
of Lands before the interest can be assigned.

 Required under Section 6(1)(a) of the Lands Act, Cap 184.

 Failure to obtain consent may render the transaction void or unenforceable.

Practical tip: The request for consent should be submitted early, as delays are common.

Case: Chipango v Chipango (1998) — consent was refused due to outstanding ground rent,
illustrating that statutory compliance is key.

3.3.2.3.3 Property Transfer Tax (PTT)

The seller is generally liable for Property Transfer Tax under the Property Transfer Tax
Act, Cap 340.

 Section 4(1): Tax is payable upon transfer of property.

 Rate: Currently 5% of the property's realizable value.
 No instrument of transfer (assignment) will be accepted for registration unless PTT is
paid.

Process:

 File a Return of Transfer with ZRA.

 Pay the tax.
 Obtain a Tax Clearance Certificate, which is submitted along with other documents
during registration.

3.3.2.3.4 Subdivision and Marking Off

Sometimes, the land being sold is part of a larger plot and must be subdivided.
3.3.2.3.4.1 Land Survey Act
  Governed by the Land Survey Act, Cap 188.
 Only a licensed land surveyor may prepare the survey diagram.
 Survey must be approved by the Director of Surveys before a title can be issued.

Section 8 of the Act prohibits the Registrar from registering a title based on an unapproved
survey.

3.3.2.3.4.2 Common Leasehold Schemes Act

This applies particularly where flats or apartments are concerned.

 Common Leasehold Schemes Act, Cap 208 allows for division of land into units
with shared ownership of common areas.
 Requires preparation of a scheme approved by the Commissioner of Lands under
Section 5.
 Titles for units are issued separately, with each owner holding a defined unit and
undivided share in the common property.

3.3.2.3.5 Drafting and Registration of Assignment

The assignment is the document that legally transfers title from seller to buyer.

Key Features:

 Must be in writing (Section 5, Land and Deeds Registry Act).

 Signed by both parties.
 Witnessed by a commissioner for oaths or legal practitioner.
 Attachments:
o Title Deed.
o Tax Clearance Certificate.
o Commissioner’s consent (if leasehold).
o Survey diagram (if applicable).

Final step: Lodging the assignment at the Land and Deeds Registry for registration.

Section 7, Cap 185: Registration of the assignment constitutes constructive notice to the
world.

Section 9, Cap 185: An unregistered deed is ineffective against a bona fide purchaser for
value without notice.

Case: Beene v Zulu (2010) — buyer’s claim to land was upheld because the assignment had
been duly registered, defeating a competing unregistered interest.
Absolutely, here's your continuation of the Head Conveyancing notes in line with your
preferences—no tables, specific statutory sections, and inclusion of Zambian case law where
applicable.

3.3.3 Completion / Notice to Complete

Completion refers to the final stage of a conveyancing transaction where the transfer of legal
title is effected, all required payments are made, and possession of the property is passed to
the purchaser.

Key Aspects of Completion:

1. Exchange of Documents and Final Payments:

o The Assignment or Lease is executed by both parties.
o Purchase price is fully paid.
o Transfer instruments are lodged for registration at the Ministry of Lands and
Natural Resources under the Land and Deeds Registry Act, Section 5.
2. Vacant Possession:
o Seller is expected to give up possession on completion, unless otherwise
agreed.
3. Notice to Complete:
o If either party is delaying completion without justification, the other may issue
a formal Notice to Complete, usually giving the defaulting party 14 days to
complete the transaction.
o A Notice to Complete is a powerful legal tool. If the party fails to comply
within the notice period, they may be in repudiatory breach of contract,
entitling the innocent party to terminate the contract and claim damages.

Legal Authority:

 Governed by contract law principles, with specific performance available as a

remedy in land transactions due to the unique nature of real property. See Mulwanda
v Musonda (2003) where the High Court held that land is a unique commodity and
specific performance is often the appropriate remedy in the event of breach.

3.3.4 Post-Completion Procedure

These are the administrative and legal tasks undertaken by the conveyancer after the
completion of a transaction.

3.3.4.1 Reporting to Client

After registration of the transaction, the legal practitioner must prepare a completion report
for the client, detailing:
  Summary of the transaction and any issues encountered.
 Confirmation that the transaction was properly completed and registered.
 Information on any outstanding obligations (e.g., payment of rates or taxes).

The lawyer must also forward originals or certified copies of relevant documentation.

3.3.4.1.1 Types of Documents to be Retained / Handed Over to the Other Party

To Purchaser:

 Certified copy of Certificate of Title (issued under Section 4, Land and Deeds
Registry Act).
 Stamped and registered Assignment or Lease.
 Receipt for Property Transfer Tax paid to ZRA (under Section 5 of the Property
Transfer Tax Act, Cap 340).
 Any clearance certificates (e.g., ground rent clearance).

To Vendor:

 Copy of Assignment/Lease for records.

 Completion statement showing how the purchase money was applied.
 Return of original documents not required for registration.

Retention by Lawyer:

 Copies of all correspondence, signed documents, and client identification documents

under Rule 5 of the Legal Practitioners (Accountants) Rules, for record-keeping
and audit purposes.

Case Reference:

 In Ngwira v Sikaonga (2010), the court emphasized the duty of the lawyer to ensure
proper documentation is retained and accounted for, especially in property
transactions involving third-party interests.

3.3.4.2 Drawing Bills of Costs

A Bill of Costs is prepared by the legal practitioner for payment of professional fees and
disbursements incurred during the conveyancing transaction.

Types of Fees:

 Professional Fees: Usually charged as a percentage of the consideration or fixed

scale depending on complexity and value.
 Disbursements: Includes fees paid to the Registry, surveyors, ZRA (for PTT), and
others.
Legal Framework:

 Governed by the Legal Practitioners Act, Cap 30, and Legal Practitioners (Scale
and Minimum Charges) Rules.
 Where a client disputes the amount, the bill may be taxed by the taxing master of
the High Court under Order 62 of the High Court Rules.

Case Law:

 In Chirwa v Chirwa (2012), the court ruled that legal fees must reflect services
actually rendered and be in line with the scale of charges unless there’s a written
agreement providing otherwise.

Best Practice:

 A well-drafted Bill of Costs should itemize services rendered, state clearly the basis
of the fee (e.g., hourly or percentage), and attach relevant receipts or vouchers.

Perfect — I’ll continue with the same thorough and practical approach, backed by Zambian
authority, citing specific statutory sections and relevant case law, without tables. Here we go:

3.3.5 DEEDS – DRAFTING, LODGEMENT

(LODGEMENT SCHEDULE) & REGISTRATION
PROCEDURE
Deeds are legal instruments used to effect or record transactions relating to interests in land.
Once executed, they must be lodged at the Land and Deeds Registry (under the Land and
Deeds Registry Act, Cap 185) for registration. This process gives legal effect and public
notice to the transaction.

3.3.5.1 Assignment

An assignment is the transfer of an existing leasehold interest from the assignor (seller) to
the assignee (buyer). It must be drafted with clear identification of the parties, the property,
the interest being assigned, and consideration.

 Consent of Commissioner of Lands is required under Section 6(1)(a) of the Lands

Act, Cap 184.
 Must comply with Sections 5 and 6 of the Land and Deeds Registry Act
(formalities and registration).
 Once registered, the assignee obtains legal ownership.

Case: Manda v Chipata Municipal Council (2010) — emphasized the necessity of

registration for an assignee to acquire a valid interest.
3.3.5.1.1 Mortgage

A mortgage creates a security interest in land or other property in favor of a lender.

 Under Section 6(1)(a), Lands Act, Commissioner’s consent is required for

mortgaging leasehold land.
 A mortgage must be in the prescribed form and lodged under Section 5 of Cap 185.
 Where mortgaging personal property, the Movable Property (Security Interest) Act
No. 3 of 2016 applies.

3.3.5.1.1.1 Movable Property Security Act

 Establishes a collateral registry for non-land property.

 Section 4: Allows parties to create security interests in movable assets.
 Section 25: Prioritization of registered security interests.
 Unlike land, no Commissioner’s consent required.

3.3.5.1.2 Personal Representative

A personal representative (administrator or executor) may transfer or assign property of the

deceased:

 Must obtain Grant of Probate or Letters of Administration from the High Court.
 Under Section 7 of Cap 185, the transfer/assignment by the representative must be
registered.
 The document must refer to the authority (probate/letters) under which the transfer is
made.

Case: Mwila v Mwila (2005) — highlighted the requirement for registration even where the
transferee inherits.

3.3.5.1.3 Mortgagee

A mortgagee (lender) can transfer or assign the mortgaged land to a third party upon
exercising power of sale due to default.

 Must comply with the charge instrument, and Section 6, Lands Act for consent.
 The assignment by the mortgagee is effective only upon registration (Section 5, Cap
185).

3.3.5.1.4 Liquidators
Liquidators appointed under the Companies Act, No. 10 of 2017 can dispose of company
land to settle debts.

 They act in the name of the company (Section 84, Companies Act).
 Must attach proof of their authority (court order or board resolution).
 Consent under Section 6, Lands Act still applies.

3.3.5.1.5 Receivers

Receivers (especially under a debenture) may be empowered to assign or lease company land
or assets.

 Must show appointment deed.

 Still requires Commissioner’s consent under Section 6, Lands Act.
 Must register the deed under Cap 185.

3.3.5.2 Transfer

A transfer applies mainly to freehold interests, and involves passing the legal title from one
party to another.

 Must be done by deed.

 Governed by Section 5, Cap 185.
 Must contain accurate property description and consideration.

3.3.5.3 Gift

A gift is a transfer without monetary consideration.

 The deed must clearly state it is made inter vivos and is without consideration.
 Section 7, Cap 185 still requires registration to be effective against third parties.

3.3.5.4 Moiety

Refers to transfer of partial ownership, commonly used between spouses or co-owners.

 Drafted as a deed of transfer for undivided share.

 Registerable under Cap 185.
3.3.5.5 Assent

An assent is a document by which a personal representative transfers title to a beneficiary

after probate.

 Authority derived from Grant of Probate or Administration.

 Must be in writing, signed and registered (Cap 185, Section 5).

3.3.5.6 Partition

Partition occurs where co-owners divide land into separate portions.

 Requires deed of partition, with new diagrams and Commissioner’s consent.

 Each owner is issued a separate title upon registration.

Case: Sakala v Sakala (1994) — the court upheld a partition deed where both parties had
agreed and consented.

3.3.5.7 Severance

Refers to severing a joint tenancy to create a tenancy in common.

 Done by notice of severance or mutual agreement.

 May require court intervention or a deed if land is jointly owned.

3.3.5.8 Exchange

A deed of exchange transfers land between two parties in return for another parcel of land.

 Must be equal or fair value, though not a requirement.

 Requires Commissioner’s consent (Section 6, Lands Act) and registration (Section 5,
Cap 185).

3.3.5.9 Deed of Postponement and Adjustment of Priorities

Used where multiple interests (e.g., mortgages) exist, to adjust which takes precedence.

 Must be signed by all affected parties.

 Registerable under Cap 185 to bind third parties.
3.3.5.10 Rectification

Corrects errors in registered instruments (e.g., name, boundaries).

 May require a court order (where error is material).

 Registrar may permit rectification in minor cases under Section 33, Cap 185.

3.3.5.11 Surrender

A deed of surrender terminates an existing lease before expiry.

 Must be executed by lessee (and sometimes lessor).

 Requires registration under Section 5, Cap 185 to extinguish the interest.

3.3.5.12 Substitution of Diagrams

Where the diagram attached to title is incorrect or has been updated by the Survey
Department.

 Requires a formal application and survey report.

 Governed by the Land Survey Act, Cap 188.

3.3.5.13 Release

Used to release a security interest (e.g., mortgage).

 Must be in writing and registered under Section 5, Cap 185.

 Usually called a "Discharge of Mortgage".

3.3.5.14 Vesting Separate Titles

3.3.5.14.1 Under the Land Survey Act (Cap 188)

 Upon subdivision, separate plots must be surveyed and diagrams prepared.

 Section 19: Survey must be done by a licensed surveyor.
 Commissioner may issue new certificates of title based on new diagrams.

3.3.5.14.2 Under the Common Leasehold Schemes Act (Cap 208)

 Used in flats/apartments (multi-unit dwellings).

 Owners hold undivided share in common areas and separate title for their flat/unit.
  Registrar issues Certificate of Common Leasehold and Supplemental Registers per
unit.

Absolutely! Here's a more detailed explanation of the clauses under section 3.3.6, with
relevant Zambian case law and statutory references, now explained in a clearer, more
descriptive way.

3.3.6 APPLICATION FOR LOST DOCUMENTS

When original documents such as a Certificate of Title or a lease agreement are lost, the
applicant must apply for a certified duplicate from the Lands and Deeds Registry, in
accordance with:

 Section 41 of the Lands and Deeds Registry Act, Cap 185.

🔹 Procedure:

 File a statutory declaration explaining how the document was lost.

 Publish a notice in the Government Gazette.
 If no objections arise, the Registrar may issue a certified duplicate.

🔹 Case Law:
⚖️Beit Trust v Registrar of Lands and Deeds (1974) ZR 1
Principle: Reinforces that before issuing a duplicate, the Registrar must be satisfied with the
explanation and must give public notice. This is to prevent fraud and unlawful duplication of
title documents.

3.3.6.1 DESCRIPTION OF A PROPERTY UNDER A LEASE

Every lease must contain a precise legal description of the land or premises being leased.
This ensures clarity and avoids disputes over what exactly is being leased.

📌 Often done by referencing:

 Plot number
 Stand number
 Location
 Survey diagram
 Leasehold certificate details

3.3.6.1.1 CONSIDERATION CLAUSE

📝 This clause spells out what the lessee (tenant) gives in return for being allowed to use the
land – typically money (rent).

✅ Purpose: It confirms that there is legal consideration, which is essential to make the lease
enforceable.

📌 Example:
"In consideration of the rent hereinafter reserved and the covenants on the part of the lessee,
the lessor hereby demises the premises..."

🔹 Case Law:
⚖️ZESCO v. Mbewe (2006) ZR 123
Principle: A lease lacking clarity on rental obligations (amount, frequency, etc.) was held to
be void for uncertainty.

3.3.6.1.2 DEMISE CLAUSE

📝 This is the actual leasing clause. It is where the lessor (landlord) formally grants
possession of the property to the lessee (tenant) for a specific purpose and period.

✅ Purpose: It indicates that the tenant has exclusive possession, which is what differentiates
a lease from a licence.

📌 Typical Wording:
"The Lessor hereby demises to the Lessee all that piece or parcel of land known as Plot No.
XYZ..."

🔹 Case Law:
⚖️Chisanga v Mwansa (2008) ZR 54
Principle: Clarified that a properly worded demise clause creates an enforceable lease.
Without clear language granting exclusive possession, it could be deemed a mere licence.

3.3.6.1.3 HABENDUM CLAUSE

📝 This clause defines the duration of the lease and the type of interest granted (e.g., lease for
14 years).

✅ Purpose: It complements the demise clause by confirming how long the lessee holds the
property and on what terms.

📌 Typical Wording:
"To have and to hold the said premises unto the Lessee for a term of 14 years from the 1st
day of January 2025..."
🔹 Case Law:
⚖️Kapoko v Simukonda (2010) ZR 80
Principle: If the lease lacks a clearly stated term, courts may imply a periodic tenancy instead
of a fixed lease.

3.3.6.1.4 REDDENDUM CLAUSE

📝 This clause deals with the rent payment: how much, when, and how it should be paid. It
may also state other payments like service charges or maintenance costs.

✅ Purpose: It forms the financial backbone of the lease. Without a reddendum clause, there
could be ambiguity about payment obligations.

📌 Typical Wording:
"Yielding and paying therefor during the said term the monthly rent of ZMW 5,000 payable
in advance on the first day of each calendar month..."

🔹 Case Law:
⚖️Zambia State Insurance Corporation v Chilufya (2002)
Principle: Failure to comply with the rent payment terms, especially where these are clearly
spelled out, could result in forfeiture or eviction.

3.3.6.2 RENEWAL OF A LEASE

Leases may contain a renewal clause, allowing the tenant to extend the lease term beyond
the initial period, usually subject to notice or renegotiation of terms.

✅ Important: Renewal is not automatic. It must be expressly exercised according to the

lease terms (usually via written notice).

🔹 Case Law:
⚖️Phiri v National Housing Authority (2012) ZR 59
Principle: Tenant’s failure to comply with the procedure for renewal (e.g., not giving written
notice) can result in the loss of the right to renew, even if they remain in possession.

3.3.6.3 SURRENDER OF A LEASE

A surrender occurs when the tenant voluntarily gives up their interest in the lease before
its expiry.

✅ Requirements:

 Must be in writing, signed by both parties.

  Should be registered to have legal effect (see Lands and Deeds Registry Act).

🔹 Case Law:
⚖️Kaluba v Kaluba (2011)
Principle: Oral agreements to surrender were held invalid. Only a written, registered
surrender is effective.

3.3.6.4 EXPIRATION OF A LEASE

A lease expires when the period stated in the habendum clause runs out. The tenant no
longer has a legal right to stay unless a new lease is signed or the landlord allows continued
possession.

✅ Post-expiry possession:

 If the tenant stays and pays rent, the law may treat this as a monthly tenancy (called a
tenancy at will or tenancy by implication).

🔹 Case Law:
⚖️Mwansa v Ngulube (2009)
Principle: After lease expiration, continued occupation and rent payment created a monthly
tenancy, enforceable by law.

3.4 FILING PROCEDURE AT MINISTRY OF LANDS, LOCAL

AUTHORITIES, ZRA AND COMPANIES REGISTRY

3.4.1 Ministry of Lands and Deeds Registry

Filing here involves registration of property transfers, leases, mortgages, caveats, and
discharges under the Lands and Deeds Registry Act, Cap 185.

Steps:

1. Prepare Deed (e.g., Deed of Assignment, Mortgage).

2. Complete Form RL1.
3. Pay requisite registration fees.
4. Submit to Registrar with:
o Original documents
o Certified copies
o NRC copies
o Tax clearance certificate
5. Document is entered in lodgement schedule.
6. Registration number issued once recorded.
Case Law: Beit Trust v Registrar of Lands and Deeds (1974) — Reinforced strict
compliance with registration protocols.

3.4.2 Local Authorities

Primarily involved in granting or consenting to land transactions on Council land.

Steps:

1. Submit application with plot details and supporting documents.

2. Obtain consent (especially for assignments or subleases).
3. Council resolution issued.

Case Law: Chongwe Forest Reserve v Kanyama Dev Co (2018) — Consent from Local
Authorities is mandatory where required.

3.4.3 Zambia Revenue Authority (ZRA)

Required for assessment and payment of property transfer tax under the Property Transfer
Tax Act.

Steps:

1. Submit Contract of Sale/Deed to ZRA.

2. Complete PTT return forms.
3. Obtain Tax Clearance Certificate.
4. Attach PTT Certificate to transfer documents.

Rate: Usually 5% of property value (as assessed).

3.4.4 Companies Registry (PACRA)

Where companies are parties to transactions, particularly for mortgages, charges, or

debentures.

Steps:

1. File notice of mortgage or charge within 21 days (Form 15).

2. PACRA registers and endorses certificate of registration of charge.
3. Failure to register renders the charge void against the liquidator or creditors.

Case Law: ZANACO v Eagle Holdings (2004) — Emphasized registration of company

charges within prescribed period.

3.5 MORTGAGES – DRAFTING, LODGEMENT (LODGEMENT

SCHEDULE) & REGISTRATION PROCEDURE

3.5.1 Types of Mortgages

3.5.1.1 Mortgage
This is a legal charge over land to secure repayment of a loan.

Drafting must include:

 Amount secured
 Interest rate
 Repayment terms
 Power of sale
 Redemption clause

Registration: Under Lands and Deeds Registry Act, Cap 185.

Case Law: Finance Bank v Chulu (2011) — Mortgage must be registered to be enforceable.

3.5.1.2 Further Charge

Additional borrowing secured against the same property by same lender.

Requirement: Must be registered as a separate charge.

Case Law: Stanbic v Mwanakatwe (2015) — A further charge must follow the same
formalities as the original mortgage.

3.5.1.3 Second Mortgage

A new charge in favour of a different lender on property already mortgaged.

Requirement: Must be consented to by first mortgagee and registered.

3.5.1.4 Third Party Mortgage

Where someone offers their property as security for another person’s loan.

Requirement: Clear evidence of consent and independent legal advice.

Case Law: Barclays Bank v Phiri (2010) — Lack of clear consent invalidated third-party
mortgage.

3.5.2 DISCHARGE OF MORTGAGES / MEMORANDUM OF SATISFACTION

Upon repayment of the loan, the lender must issue a discharge of mortgage.

Steps:

1. Draft and sign Discharge of Mortgage.

2. Register at Ministry of Lands.
3. Title deed updated to reflect discharge.

Case Law: Stanbic Bank v Mwanakatwe (2015) — Discharge must be properly lodged and
registered to be effective.
3.5.3 PARTIAL DISCHARGES

Where only part of the land or part of the debt is released from the mortgage.

Requirement: Specific identification of portion discharged, and registration of partial

release.

3.5.4 OTHER SECURITIES

3.5.4.1 Debenture

A security instrument used by companies to secure a loan, often over all assets.

Types:

 Fixed charge (on specific assets)

 Floating charge (on general assets)

Registration: Must be registered with PACRA within 21 days.

3.5.4.2 Floating/Fixed Charge

Floating Charge: Security on assets that change (e.g., stock). Crystallises into fixed on
default. Fixed Charge: On specific immovable assets, e.g., land or plant.

Case Law: Development Bank v Zambezi Portland Cement (2012) — Floating charges
require registration and proper crystallisation clauses.

3.5.4.3 Agricultural Charges

Created under the Agricultural Credits Act to secure loans for agricultural production.

Registration: With Registrar of Agricultural Charges.

Statutory Reference: Agricultural Credits Act, Cap 224.

Case Law: ZCF v Kaleya Smallholders (2003) — Valid agricultural charge requires
registration and compliance with Act.

3.6 Leases – Drafting, Lodgement & Registration

Procedure (with Authority)
A lease must be in writing and registered if it exceeds 12 months, pursuant to Section 4 of
the Lands and Deeds Registry Act, Chapter 185. Failure to register renders the lease
ineffective against third parties: Zambia Railways v Musonda (1987) Z.R. 18 (SC).
Lodgement Schedule (Definition & Authority)

A Lodgement Schedule is a formal summary document required by the Lands and Deeds
Registry. It lists the nature of the documents being submitted for registration, parties
involved, and title number. Required under Section 10 and Regulation 4 of the Lands and
Deeds Registry (General) Regulations.

3.7 Covenants and Easements – Drafting, Lodgement &

Registration Procedure (with Authority)
Covenants

Covenants are restrictions or obligations tied to land and run with it under Section 16 of the
Lands and Deeds Registry Act. To be binding on successors in title, they must be
registered.

 See Zesco v Nkumbula (1996) Z.R. 45 (HC) – held that unregistered covenants
affecting land cannot bind third parties.

Easements

Easements must be created by deed and registered to be effective, as required by Section 4(2)
and Section 16 of the Lands and Deeds Registry Act.

3.7.1 Mining Easements – Authority

Easements for mining are governed by Section 62 of the Mines and Minerals Development
Act No. 11 of 2015, which allows the holder of a mining right to apply for an easement over
land necessary for mining operations.

3.7.2 Oil and Gas – Authority

Oil and gas operations fall under Section 14 of the Petroleum (Exploration and
Production) Act No. 10 of 2008, which requires surface rights to be secured for access.
Registered easements are required where exploration or pipelines affect third-party land.

3.7.3 Water Extraction and Borehole Registration – Authority

Regulated under Section 22 and 31 of the Water Resources Management Act No. 21 of
2011. Any borehole drilling or water extraction requires registration with WARMA and must
include land rights documentation (lease or title), under Regulation 6 of the WARMA
(Licensing) Regulations.

3.7.4 Protected Areas (Forests, GMAs) – Authority

Regulated by:

 Section 27 of the Forests Act No. 4 of 2015 – for conservation leases and land use in
forest reserves.
 Section 12 of the Zambia Wildlife Act No. 14 of 2015 – for activities in Game
Management Areas.
 Such leases or permits must be documented and registered where land rights are
affected.

3.8 Trusts – Drafting, Lodgement & Registration

Procedure (with Authority)
Trusts involving land are governed by Section 7 of the Lands and Deeds Registry Act,
which requires registration for any deed affecting land interests.

Trusts created for managing land for minors, business succession, or public benefit must be
registered to take effect.

 See: Re Nyirenda (2005) ZR 130 (HC) – held that an unregistered trust deed
affecting land was unenforceable against third parties.