After Mozambique’s independence from Portugal and its civil war, the government focused on creating legal frameworks that would protect the land rights of communities, and still encourage investment.
The land law does not allow private ownership of land – it belongs to the state and cannot be sold. The law does, however, provide for a lesser right, known as Direito do Uso e Aproveitamento da Terra (“right of use and tenure”, abbreviated as duat). Duats allow their holders to use the land for authorised purposes set out in the law.
Duats for urban and rural areas differ slightly. In rural areas, rights are created in one of three ways. First, if the land has been occupied by local communities following customs that comply with the Mozambican Constitution. Second, a duat is created if a citizen has lived on the land for at least 10 years. The third is the only one open to foreigners: authorisation by the relevant administration.
To get a duat, foreigners should have lived in Mozambique for at least five years. Investors who want this right can expect a complex and lengthy authorisation process.
But all duats are not equal. Mining rights can supersede those of other rights holders.
Land rights can be inherited or by selling the buildings, making improvements or erecting infrastructure.
In an urban tenement sale, the transfer of the right of ownership implies the automatic transfer of the duat. But in the case of rural tenement, the transfer of the right to the new owner is not automatic; it has to be approved by the same entity that had originally approved the right.
Duats cannot be used as collateral for any borrowing, but the law allows for the automatic transfer of an urban tenement with its rights. So the tenement can be mortgaged, an interpretation that financial institutions have adopted.
Zaida Kathrada is a senior associate at global legal practice Norton Rose Fulbright.