Q&A – 10 July 2023

Land ownership in name of minor

I recently lost an uncle and have seen how his wife, children and other close relatives have been fighting for his properties to the extent that there is now a Court case. I do not want my children to face the same agony when I am gone and would prefer the landed properties registered in my name to be changed to the names of my children including those under the age of eighteen years. I would like to know the procedure for change of names in the certificate of titles from the name of a parent to children, especially those under the age eighteen years. How much does it cost to make the change in the land register and certificate of titles? After effecting the change will I still have the right to sell the land if I wish? If the child misbehaves or if he dies before me, will it be possible to have the land reregistered in my name? Do you think the approach I am thinking about is the best way of helping me avoid probate disputes after my death? Please guide.
LM, Dar es Salaam

If you want to change the names in the title deeds from yours to the names of your children, you need to make an application to the Commissioner for Lands. However, it is not a simple process of just getting the names changed. Changes of names in the land register and title deeds amounts to passing ownership of the landed properties from you to your children hence is considered a form of disposition of a right of occupancy. That being the case, you will have to comply with all the statutory procedures for transfer of the right of occupancy as stipulated under the Land Act [Cap.113 R.E 2019] and the Land Registration Act [Cap.334 R.E 2019]. The Land Act requires any transfer of a right of occupancy to comply with section 37, 38 and 39 which includes notification of the transfer and application for approval of the transfer of right of occupancy by the commissioner for lands. Although you are selling the plots to your children, the transfer of right of occupancy to your children may also attract payment of taxes and fees such as stamp duty, registration fee and capital gains tax.

Upon completion of the process of changing the names, the title to the properties shall pass from you to your children. Regarding your children who are under the age of 18 years, the change of names will make them owners of the properties but your name will still be reflected in the land register and certificate of titles as a trustee/guardian of the minors until the minors attain the age of majority. Once the minors attain the age of majority they will gain full authority to deal with the properties you transferred to them in whatever manner they wish, be it selling, mortgaging or leasing the property. They will not need your sanction before deciding to dispose of the property you transferred to them even if you are still alive.

A property that has been transferred to a child becomes a child’s property and the parent remains a mere trustee with no power to deal with that property in a manner that is prejudicial to the interest of the child. Any disposition of a property belonging to a child should be in the best interests of the child for it to be lawful, otherwise the disposition may be denied by the land authorities. However, if a child dies before attaining the age majority, his guardian/trustee can apply for re registration of the land in his name.

Having said the above, you might still need to have a Will in place which explicitly prescribes how your properties shall be distributed after your death. A Will is the simplest way of avoiding inheritance disputes, although recently we have seen a number of awkward challenges to Wills being tested in Court.

Suing for death of infant

I lost a child in the course of delivery due to negligence of a doctor. I want to sue the hospital and the doctor but am getting advice that it is impossible for an adult to sue for death of an infant because only an executor or administrator of the deceased estate can file suit for death and since the infant left no property it cannot have an executor or administrator of the estate competent to file a suit. Guide me if this position is right.
JT, Lindi

The guidance is wrong. Section 3 of the Law Reform (Fatal Accidents and Miscellaneous Provisions) Act [Cap.310 R.E 2019] gives the right to file a suit for death of any person including death of an infant caused by a wrongful act or omission of a hospital. Section 4 of the Act gives guidance that a suit for claim of damages for death caused by a wrongful act or omission of another can be filed in the name of an executor or administrator of the deceased estate or a dependent of the deceased. Section 2 defines the term ‘dependent’ broadly to include a mother such as you suing for the death of an infant, grandmother, grandfather, stepfather, stepmother, son, daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-sister and half-brother.

You thus have the right to file a suit against the hospital and the doctor because you are covered under the definition of the term dependent. The term ‘dependent’ in section 2 of the Act does not have the ordinary meaning of being dependent on the deceased. It only connotes the relationship between the deceased and the plaintiff. Due to your relationship with the deceased you fit to be a dependent capable of suing the hospital and the doctor for the death of your infant caused by negligence of the doctor.