Leasing and Licensing of Customary Land Amendment 2019 / No.27 of 2019

An Act to amend the Alienation of Customary Land Act 1965 (“Principal Act”)

The name of the Principal Act is substituted to Leasing and Licensing of Customary Land Act 1965 wherever occurring.
The Act amends the following provisions which include granting rights in relation to lease or licence under such conditions; (a) the right to approve or disallow the use of the leasehold interest as security; (b) the right to approve or disallow the assignment of the lease or licence whether as a result of a default by mortgagor or not; (c) the right to receive payments in accordance with the terms of the lease or licence; (d) the right to approve or disallow a sub-lease; (e) the right to initiate and enforce a review of rents as provided for by the terms of the lease;(f) the right to enforce beneficial covenants under the terms of the lease or licence, including obligations of the lessee or licensee to - (i) provide employment, to assist in business development; or (ii) to provide community services or infrastructure; and (iii) the right to enforce environmental protection obligations applying to the lessee or licensee under the terms of the lease or licence; and (g) the right to seek legal representation to undertake legal proceedings on matters arising from the lease or license granted.” (s.4); Terms in accessing licence include: (a) the term does not exceed one (1) year; (b) the customary ownership of the land has been determined by the Land and Titles Court; and (c) the beneficial owners have signed the license, the beneficial land owners of that license, have the authority to grant reasonable access to and use of their customary land (s.5);”
Registering customary land lease or license or interest therein: 2) The registration by the Registrar of customary land leases or customary land licenses and interest therein onto the Register established in subsection (1), does not: (a) permit the alienation of customary land in a manner prohibited by Article 102 of the Constitution; or (b) permit or deem ownership on any customary land to be vested in any person(s.5A); Right to recover rents and other sums
is exercisable by the Minister, acting on behalf of the beneficial customary landowners (2) The beneficial customary landowners also have power to commence and
undertake legal proceedings for the recovery of rents and other monies due under a lease or licence granted under
this Act, even if the lease or licence has been made on their behalf by the Minister. (3) When taking action under subsection (2), the beneficial customary landowners (or
their legal representative) have the right to commence and undertake the proceedings, and any proceedings to
execute any order or judgment made in their favour, without the consent or involvement of the Minister (s.16);
Insertion of new Part 3 where mortgages of leases of customary lands: (1) If a lease of customary land is to be
mortgaged, the mortgage:(a) must not be created, except with the prior written consent of the beneficial owners of the customary land; and (b) must not be created, unless the
lessee has made improvements to the customary land leased and such improvements must be made in accordance with the approved purpose under the lease; and (c) must be registered under this Act and such registration does not confer a right of ownership over the customary land. (2) A second or subsequent mortgage on a lease of customary land: (a) is prohibited; (b) must not be registered; and (c) if created or registered, is void.
(3) A mortgagee of a lease on customary
land: (a) must not take an action over the mortgaged lease unless the action is permitted under this Act or
Regulations made pursuant to this Act; (b) must first pay any outstanding lease rental payments from any money recovered when exercising the default right under
the mortgage (s.19); Assignment of leases of customary land subject to mortgage: The lessee of customary land that is subject to a mortgage, must not assign the lease except with the prior written consent of the beneficial owners of the customary land; Discharge of Mortgage:
(1) When a mortgage under this Act is to be discharged, the mortgagee shall execute a discharge in the approved form.
(2) Upon registration of a discharge of mortgage the mortgaged interest shall, to the extent specified in the discharge, cease to be charged with any money secured by the mortgage (s.20A); Any existing signed lease, license, sub-lease, sub-license or assignment made under the Principal Act continue and is considered validly made (s.23A).