LAND OWNERSHIP WITHOUT TITLE

ANTENUPTIAL CONTRACTS: AN EARLY FORM OF ESTATE PLANNING
August 2, 2019
POST-NUPTIAL AGREEMENTS
August 2, 2019

LAND OWNERSHIP WITHOUT TITLE

The vast majority of land owners in South-Africa, has valid Title to their property. This means that after the “owner” obtained a legal right thereto, the transaction was formally recorded in the Deeds Office (after concluding a Deed of Sale).

There are however certain exceptions to this practise. The absence of title may be the result of any one of the below mentioned reasons:

  • Oversight by Previous Owners
  • Ignorance of Previous Owners
  • Political Factors
  • Financial Reasons

To rectify the position is more complicated than what would appear at first glance due to certain restrictions / requirements contained in the Deed Registries Act 47 of 1937, which reads as follows:-

  • Section 14: Deeds to Follow The Sequence of Their Relative Causes

 

1 (a) Transfers of land shall follow the sequence of the successive transactions in pursuance of which they are made, and if made in pursuance of a testamentary disposition or intestate succession they shall follow the sequence in which the right to ownership or other real right in the land accrued to the persons successively becoming vested with such right”

 

1 (b) It shall not be lawful to depart from any such sequence in recording (in any Deeds Registry) any change in the ownership in such land.”

 

Example: A inherits a farm from his father’s deceased estate. Before the farm can be registered in the Deeds Office, A sells the farm to B. The property must therefore first be registered into the name of A and then (or simultaneously) transported to B.

 

  • Section 33(1) of Act 47 of 1937 in addition reads as follows:

 

Any person who has acquired in any manner, other than by expropriation, the right to the ownership of immovable property, registered in the name of any other person, and is unable to procure registration thereof in his name in the usual manner and according to the sequence of the successive transactions or successions in pursuance of which the right to the ownership of such property has devolved upon him, may apply to the court for an order authorizing the registration in his name of such property.”

 

It follows that any person who obtains immovable property, of which registration cannot take place through the usual process, must approach the High Court for a relevant order, authorising such registration.

 

There must however be an underlying reason (“causa”) for approaching the Court, such as a valid Sale Agreement, Will, Intestate Succession or Acquisitive Prescription.

 

In the event that Acquisitive Prescription applies, the following have to be reflected, when applying to Court:

 

  • That the previous “owner” (and his/her succession), as well as the current “owner”, all:

 

  1. Had physical control of the whole property (By building thereon or using it for agricultural purposes)
  2. Had the intent to possess the property (By paying the Municipal rates and taxes thereon)
  3. Took possession of and kept the property “nec vi” (without force)
  4. Possessed the property “nec clam” (not in secret)
  5. Possessed the (whole) property combinedly for more than 30 years, without interruption.

From the aforesaid it is clear that the legislature became aware of the difficulties that can be experienced by land owners, without title, and provide a clear solution through intervention by the Court system.

 

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