Part III of the Land (Tenure Conversion) Act 1963 addresses the problem that converting communal land into individual titles can create: land subdividing into parcels too small to farm, held by too many people to manage.
Section 23 — where the Part applies
Part III does not apply to land registered, or to be registered, in the Register of Communally Owned Land. Where the land remains in communal ownership, the fragmentation rules are unnecessary.
Section 24(1) — the minimum parcel rule
The Commission shall not direct the registration of, and the Registrar of Titles shall not register, interests in a piece of land which is less in either area or frontage than the standard prescribed in relation to the purpose for which the land is likely to be used — or, if no standard is prescribed, less than the Minister considers to be the minimum area or frontage adequate for that purpose.
Three features:
- the test is area or frontage — failing either is enough;
- the standard is purpose-specific — what is adequate for a garden block is not what is adequate for a plantation or a shop; and
- the prohibition binds both the Commission and the Registrar, so it cannot be circumvented at either end.
Section 24(2) — no more than six owners
The Commission shall not direct the registration of, and the Registrar shall not register, more persons than six as joint tenants or tenants in common of any interest in land.
This is a practical response to a real difficulty. A clan may have dozens or hundreds of members; a title in all their names would be unmanageable, and every dealing would require every signature.
Section 25(2) exempts land owned by a business group or a land group from the six-person limit on later dealings. An Incorporated Land Group is a single legal person, so the numerical limit does not bite — and the group’s internal membership is governed by its constitution rather than by the Register.
Note too that section 9(5) of this Act dispenses with the requirement of adequate provision for compensation where the applicant is a business group or land group and all the owning members belong to it, or where the application is by not more than six natural persons from the owning group and a substantial number have expressly waived it.
Section 25 — the limits apply to later dealings too
The rules would be worth little if a title could be created within the limits and then subdivided out of them. Section 25 closes that.
The Minister shall not approve a dealing in land registered under this Act where the dealing would result —
(a) in a piece of land less in area or frontage than the prescribed standard for the purpose for which the land is likely to be used (or, absent a standard, less than the minimum he considers adequate); or
(b) subject to subsection (2), in an interest being owned by more than six persons as joint tenants or tenants in common.
Section 25(1) refers to the Minister’s approval power under the earlier Land Act; the equivalent provisions are now Part XVII of the Land Act 1996 on approval of dealings, together with Part XVIII on subdivision. Read the current text.
Section 26 — dealings, and the 25-year limits
Section 26(a) establishes the general position: the registered proprietor is competent to transfer or otherwise deal with the land in the same way, and to the same extent, as any other registered proprietor — subject to what follows.
The Registrar of Titles shall register against the proprietorship a limitation that:
(i) the land may be transferred or leased for a longer period than 25 years only with the consent of the Land Board; and
(ii) the land may be mortgaged or charged, but — notwithstanding any law to the contrary — the mortgagee or chargee is not entitled to remain in possession for more than 25 years.
Two points for anyone dealing with converted land:
- A long lease or transfer needs Land Board consent. Twenty-five years is the threshold, and it is a different consent from the Ministerial approval of a controlled dealing.
- A lender’s possession is capped. Notwithstanding the Part VII remedies under the Land Registration Act — including entry into possession under section 74(1)(a) — a mortgagee of converted land cannot remain in possession beyond 25 years. The words “notwithstanding any law in force to the contrary” are deliberate.
Section 11(2) — the restrictions appear on the title
Under section 11(2), on a title registered under a conversion order the Registrar shall endorse a statement that the title is subject to the conditions and restrictions imposed by this Act.
So the limitations are discoverable on a title search. They are also an encumbrance notified on the folio, and therefore bind a purchaser under section 33(1)(b) of the Land Registration Act.
If you are dealing with converted land
- Search the title and read the section 11(2) endorsement and the section 26(b) limitations.
- Check the parcel against the minimum area and frontage for the intended purpose before contemplating any subdivision.
- Count the proposed owners — more than six is not registrable unless the owner is a business group or land group.
- For a transfer or lease over 25 years, obtain Land Board consent.
- Lenders: price in the 25-year cap on possession, and remember the borrower remains registered proprietor since a mortgage charges without transferring.
- Consider whether an ILG is the better holder — it removes the six-person problem entirely.
- Take advice — the Public Solicitor, or a firm from the law firms directory.
Sources
- Land (Tenure Conversion) Act 1963 — ss 9, 11, 23–26; Part III
- Land Registration Act (Chapter 191) — ss 33, 74; Part VII
- Land Act 1996 — Parts VII, XVII and XVIII
- Land Groups Incorporation Act — PacLII 1986 Revised Edition
Section 25 refers to Part VIII of the earlier Land Act (Chapter 185); the equivalent approval provisions are now in the Land Act 1996. Read the current text.
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.