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A Hybrid System of Land Titles and Deeds Registration As a New Model for Zambia: a Case Study of the Lands and Deeds Registry Lusaka

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A Hybrid System of Land Titles and Deeds Registration As a New Model for Zambia: a Case Study of the Lands and Deeds Registry Lusaka A hybrid system of Land Titles and Deeds registration as a new model for Zambia: A case study of the Lands and Deeds Registry Lusaka. By Fatima Mandhu Study Leader: Prof. Dr. J. Malan Thesis submitted on 31st October 2014 in fulfillment of the requirements for the degree of Doctor of Philosophy in the Faculty of Law of University of Africa Dedication This thesis is dedicated to my mother, Zulekha Kassam Mandhu, who at the age of ninety- five still remains an inspiration for me. ii Acknowledgement Firstly, I would like to extend special thanks to my study leader, Dr. Kobus Malan without whose constant guidance, cooperation and valuable contribution, this research work would have not been completed. You are not only a great study leader but also a great friend. Secondly, my special thank goes to my family especially my Mum who at the age of ninety- five has an answer for every question and has inspired me to find answers for the research questions posed in this study. Thirdly, I would like to thank the partners and staff of the Law Firm, Solly Patel Hamir and Lawrence who assisted me with the documents, files and information needed to complete the primary research presented in chapter four of the study. Fourthly, no amount of thanking would be sufficient to express my gratitude to the staff at the Lands and Deeds Registry whose cooperation in the collection of data made it possible for me to develop the proposed land recordation and registration model for Zambia. Lastly and most importantly, I shall always be indebted to Mr Kwei Aatta Sakyi whose careful editing and checking of the study has produced a perfect piece of work. iii Declaration I, FATIMA MANDHU, HEREBY DECLARES THAT THE CONTENTS OF THIS THESIS IS MY ORIGINAL WORK AND NONE OF THE CONTENT HAS BEEN COPIED WITHOUT PROVIDING THE RECOGNITION DUE IN TERMS OF INTERAL ACADEMIC STANDARDS NAME; FATIMA MANDHU SIGNATURE iv Table of Contents Dedication ........................................................................................................................................... ii Acknowledgement ............................................................................................................................. iii Declaration ......................................................................................................................................... iv List of Figures: .................................................................................................................................... x Table of Cases ................................................................................................................................... xii Table of Statutes ...............................................................................................................................xiv Ordinances ........................................................................................................................................xiv Abbreviations and Acronyms: ..........................................................................................................xvi Abstract ............................................................................................................................................ xvii CHAPTER ONE ......................................................................................................................................... 1 LITERATURE REVIEW AND METHODOLOGY ............................................................................................ 1 1 Introduction ......................................................................................................................................... 1 1.1 The Law of Real Property and Land Registration ........................................................................ 1 1.2 Conveyancing and its link to land registration ............................................................................ 5 1.3 The three dominant models of understanding property in land ................................................ 9 1.4 The concept of Property in land and land rights ...................................................................... 11 1.5 Ownership of land .................................................................................................................... 13 1.6 The Torrens system of Land registration .................................................................................. 15 1.6.1 Development of the Torrens system .................................................................................... 15 1.6.2 The principles of the Torrens system .................................................................................... 17 1.6.2.1 A reliable register: the mirror principle ............................................................................... 20 1.6.2.2 A simple register: the curtain principle ................................................................................ 21 1.6.2.3 A guaranteed register: the insurance principle ................................................................... 22 1.6.3 The Torrens system as compared with other systems of land registration ......................... 22 1.7 The sale and purchase of real property (Land) in Zambia ........................................................ 24 1.8 Statement of the problem ........................................................................................................ 25 1.9 Primary Objective...................................................................................................................... 27 1.10 Secondary Objectives ................................................................................................................ 27 1.11 Summary of Research design and methodology ...................................................................... 28 1.12 Conclusion (Chapter outline) .................................................................................................... 33 v CHAPTER TWO ...................................................................................................................................... 35 2 THE TECHNICAL TERMINOLOGIES OF LAND TRANSFER AS THEY RELATE TO LAND REGISTRATION SYSTEMS ................................................................................................................................................ 35 2.0 Introduction .............................................................................................................................. 35 2.1 The origins of conveyancing in England .................................................................................... 42 2.1.1 The Church and its role in land transactions in England ....................................................... 43 2.1.2 Evolution of Land Law of the Anglo-Saxon era and its relation to land registration ............ 45 2.1.3 The link between possession, ownership and conveyancing under English Law ................. 46 2.2 Definitions of key terms and Latin words used in land law and conveyancing ........................ 51 2.2.1 Estate .................................................................................................................................... 51 2.2.2 Land and Property ................................................................................................................. 52 2.2.3 Tenure (to hold) .................................................................................................................... 55 2.2.4 Title, Record Tile and Title-deeds.......................................................................................... 55 2.3 The place of Land registration in conveyancing system ........................................................... 57 2.4 Registration of land titles and Deeds: two distinct concepts .................................................. 60 2.5 The distinction of deeds registry and the titles registry as part of the registration system..... 73 2.6 Conclusion ................................................................................................................................. 74 3.0 Introduction .............................................................................................................................. 76 3.1 Value of comparing legislative frameworks .............................................................................. 77 3.2 The aim, purpose and object of land registration systems and its legislative support ............ 79 3.2.1 Aim of land registration ....................................................................................................... 80 3.2.2 Purpose of land registration systems and land Registration legislation .............................. 81 3.2.3 Object of registration of Title ................................................................................................ 81 3.3 Evolution of legislative structure of titles registration in England ............................................ 83 3.3.1 The title registration and its origin ....................................................................................... 83 3.3.2 Title Registration and its development in the nineteenth century ...................................... 85 3.3.3 The seventy-five year journey of the Land Registration Act 1925. ....................................... 86 3.4 Land Registration Act 2002 as it relates to the mirror, curtain and insurance principles of Torrens system .....................................................................................................................................
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