Tongan Land Law
As noted elsewhere, one major way in which Tongan law differs from English common law is with regard to land. In Australia, New Zealand, Canada and in many states of the US, a person buying a house or other building is legally buying the land to which that structure is permanently attached. In legal terms, title to building or buildings “flows with the land”. In Tonga the default position is exactly the opposite: title and ownership of a building is frequently not the property of the person who owns the land itself. In other words Tongan A may be the legitimate landowner, but Tongan B (or even some other non-Tongan person) may own the house built on it. This can be a terribly expensive trap for the unwary.
Secondly, and just as importantly, no foreigner can own or buy land in Tonga; in fact as the law currently stands, only male Tongans can have title to land. The only secure way a non-Tongan can hold land is by way of a government lease – and even some of those can be defective, following the corrupt issuing of some government leases more than 20 years ago.
Sadly, there are a number of plausible land sharks in the Kingdom - some of them former lawyers in Tonga - who claim to offer to sell “special category” or “development category” land to foreigners, or even to Tongans not familiar with the law. There is no such land in Tonga; all land is either the property of the government, or of an individual male Tongan.
Any “lease” which a Tongan land owner purports to grant which is not a government lease is potentially subject to challenge by that person’s heirs. Garrett & Associates has developed “leases” to which both the current land owner and his heirs are party, and such “leases” are the next best thing to a government lease – but they cannot be said to be as secure as a government issued lease. Any person, no matter what his profession or status in Tongan society, who purports to offer tenure equivalent in security to a government lease is either ill informed, or a fraud.
“Leases” of buildings in the sense that term is used in other common law countries are in Tonga Commercial tenancies. Such documents are again subject to the underlying title – either the property of the male Tongan landowner, or the government. In short, great care needs to be taken when conducting any dealings involving land in Tonga.
The position is made all the more complicated by case law which is conflicting. In other words, cases can be found in which what lawyers call the material facts are identical, but the results of which are completely different. Again, professional advice should be sought, and the best advice may be “we cannot advise you with any certainty due to conflicting case law”. Whether to proceed with a transaction in that event is of course a decision for individual clients.
The final take-out: No foreigner may buy land in Tonga! If someone offers to sell you land in Tonga, walk away.
Please e-mail all enquiries to Mr David Garrett SC at: d.garrett@xtra.co.nz
As noted elsewhere, one major way in which Tongan law differs from English common law is with regard to land. In Australia, New Zealand, Canada and in many states of the US, a person buying a house or other building is legally buying the land to which that structure is permanently attached. In legal terms, title to building or buildings “flows with the land”. In Tonga the default position is exactly the opposite: title and ownership of a building is frequently not the property of the person who owns the land itself. In other words Tongan A may be the legitimate landowner, but Tongan B (or even some other non-Tongan person) may own the house built on it. This can be a terribly expensive trap for the unwary.
Secondly, and just as importantly, no foreigner can own or buy land in Tonga; in fact as the law currently stands, only male Tongans can have title to land. The only secure way a non-Tongan can hold land is by way of a government lease – and even some of those can be defective, following the corrupt issuing of some government leases more than 20 years ago.
Sadly, there are a number of plausible land sharks in the Kingdom - some of them former lawyers in Tonga - who claim to offer to sell “special category” or “development category” land to foreigners, or even to Tongans not familiar with the law. There is no such land in Tonga; all land is either the property of the government, or of an individual male Tongan.
Any “lease” which a Tongan land owner purports to grant which is not a government lease is potentially subject to challenge by that person’s heirs. Garrett & Associates has developed “leases” to which both the current land owner and his heirs are party, and such “leases” are the next best thing to a government lease – but they cannot be said to be as secure as a government issued lease. Any person, no matter what his profession or status in Tongan society, who purports to offer tenure equivalent in security to a government lease is either ill informed, or a fraud.
“Leases” of buildings in the sense that term is used in other common law countries are in Tonga Commercial tenancies. Such documents are again subject to the underlying title – either the property of the male Tongan landowner, or the government. In short, great care needs to be taken when conducting any dealings involving land in Tonga.
The position is made all the more complicated by case law which is conflicting. In other words, cases can be found in which what lawyers call the material facts are identical, but the results of which are completely different. Again, professional advice should be sought, and the best advice may be “we cannot advise you with any certainty due to conflicting case law”. Whether to proceed with a transaction in that event is of course a decision for individual clients.
The final take-out: No foreigner may buy land in Tonga! If someone offers to sell you land in Tonga, walk away.
Please e-mail all enquiries to Mr David Garrett SC at: d.garrett@xtra.co.nz