DO YOU OWN IT OR YOU ON IT? PROPERTY LAW RIGHTS SIMPLIFIED
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Many
a people do not appreciate the difference between owning property and being on
(possession of) property. Being on property has nothing to do with ownership of
the property as even a squatter can be on property but without owning the same.
It is only when you become legally recognized as such that you become the owner
lest you mislead the public.
Are
you the owner of the property which you consider to be yours or you are just on
it? If you happen to be on the property without owning it, then you are simply not
the legal owner of it. You cannot legally say that you own the property for the
reasons that follow;
Ownership
of immovable property is determined by whether you are registered as such with
the Deeds Registry. An inquiry as to who owns a certain piece of land is only
answered by visiting the Deeds Registry to see in whose name is the property
registered. The person in whose name the property is registered, remains the
owner even if deceased. Even more, if after divorce you did not effect
transfer, the property remains that of the person in whose name it is
registered.
To
own property is to have it registered in your name with the Deeds Registry by
way of a Deed of Transfer. It so happens that so many people “acquired”
property through inheritance, sale or even court orders. So long those
properties have not been transferred into your names, which property remains
that of the person in whose name it is registered.
You
may not see the sense of the law now but if you were the claimants in the case
of The Sheriff of High Court v Madziro
& Ors HH-670/15 you would understand better. In that case, the wife and
children (later the claimants) “acquired” certain immovable property through a
divorce order. They however did not take transfer for the reasons better known
to themselves. The property at law remained that of the husband in whose name
it was registered despite the court order. The husband then took and failed to
repay his loan to CBZ Bank.
The
Bank got a court order against the husband and instructed the Sheriff to attach
and sell the property in execution of judgment. The claimants raised an
objection to that arguing that they were the owners of the attached property by
virtue of the court order which awarded them the property in divorce
proceedings.
The
Court rightfully held that, “It is trite that in terms of the Deeds Registries,
the owner of an immovable property is the registered owner.”
It
went on to hold that, the property attached by the Applicant (Sheriff of the
High Court) in terms of the laws of this country is the judgment debtor’s
(husband) property which has been awarded to the to the wife upon divorce but
has not been transferred.
In
the famous case of Takafuma v Takafuma
1994 (2) ZLR 103 (S), the court held that, “The registration of rights in
immovable property in terms of the Deeds Registries Act is not a mere matter of
form. Nor is it simply a device to confound creditors or tax authorities. It is
matter of substance. It conveys real rights upon those in whose name the
property is registered…”
In
another case of Machiva v CBZ & Anor
[2000] JOL 6471, the court had this to say, a buyer does not become
owner until transfer has taken place. Until that time, he only has personal rights
against the seller.
Section 14 (a)
of the Deeds Registries Act provides
that, “the ownership of land may be conveyed from one person to another only by
means of a deed of transfer executed or attested by a registrar”.
Without
transfer by way of a Deed of Transfer, the buyer of a stand or immovable
property remains only with personal rights against the owner of the property. Of
course, one might say that I own the property but at law he/she remains not the
owner. If that property is transferred to another person, he/she will become
the legal owner. It is at this particular juncture that you should ask
yourselves whether or not you lawfully own the property or you are simply on
the property.
Disclaimer-This is for information purposes only and
should not by any stretch of imagination be construed as constituting legal
advice. Legal advice should be sought from legal practitioners.
+263 786256538, +263 718293826
Email: brytmaponga@gmail.com
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