Acquisition can stall where the person holding the land has no legal power to dispose of it. Division 6 of Part III of the Land Act 1996 removes that obstacle by conferring the power directly.
Section 17(1) — who is empowered
A person seised or possessed of, or entitled to, land, or having the management of land on behalf of a person under a legal disability — and the section names, in particular:
- (a) a customary landowner;
- (b) a corporation that has no power, or limited power only, to dispose of land;
- (c) a tenant for life;
- (d) a guardian;
- (e) a committee of a person of unsound mind;
- (f) a trustee;
- (g) an executor or administrator;
- (h) a person for the time being entitled to the receipt of rents and profits of land in possession;
- (i) a lessee other than a lessee under a State lease.
What they are empowered to do
Such a person is empowered — and shall be deemed always to have been empowered, by force of this Act and notwithstanding anything to the contrary in any law, custom, deed of settlement or other deed, will, memorandum or articles of association or instrument —
(j) to lease, sell, transfer or convey to the State the land or an interest in it; and
(k) if the land is acquired by compulsory process — to make or join in a claim for compensation, to accept or not accept an offer of compensation from the Minister, and to take any action authorised by the Act to determine a disputed claim; and
(l) to enter into an agreement incidental to the exercise of those powers.
How wide the override is
The power operates despite any law, custom, deed of settlement or other deed, will, memorandum or articles of association, or instrument to the contrary. A trust instrument that forbids sale, a company constitution that limits dealings in land, a will that ties up an estate — none of them prevents a dealing with the State under this section.
Note the limit, though: the power is to deal with the State. Section 17 does not confer a general power to sell to anyone.
The words “and shall be deemed always to have been empowered” are retrospective. Past dealings with the State that would otherwise have been beyond the person’s power are validated.
Section 17(2) — customary landowners bind the future
The powers may be exercised — and are deemed always to have been capable of exercise — by the customary landowners not only on behalf of themselves but also on behalf of all other persons who would otherwise have subsequently become entitled to the land by virtue of custom.
That is a substantial provision. The present generation of landowners can bind those on whom the land would later have devolved under custom. It is the counterpart of the protective test in section 10(3), which requires the Minister to be satisfied — after reasonable inquiry — that the land is not required or likely to be required by the customary landowners or by persons on whom the land will or may devolve by custom.
Read together: the future generations’ protection lies in the Minister’s inquiry under section 10(3), not in a veto over what the present generation may sign.
And the appointed agent
Separately, under section 9(2), the Land Titles Commission or a Local Land Court may appoint an agent to execute instruments in his own name and to receive and distribute money on behalf of customary landowners. Instruments executed by that agent are as valid as if executed by all the landowners, and the State is not bound to see to the application of the money.
Section 17 gives you the power to deal with the State, but it does not relieve you of your fiduciary duties to the beneficiaries. Getting the price right, and recording why the dealing was in the beneficiaries’ interests, remains your responsibility. Take advice before exercising the power.
Sources
- Land Act 1996 — ss 9, 10, 17
- Wills, Probate and Administration Act (Chapter 291)
- Constitution — ss 53, 54
Before relying on anything here, read the current text of the Land Act 1996 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.