November 01, 2024
Property

Factors affecting ownership of immovable property: Post registration

By Justina Hamupembe June 30, 2023
Factors affecting ownership of immovable property: Post registration

Typically, the owner of immovable property is the individual whose name appears on the property's registration according to the Deeds Registries Act 47 of 1937.

 This information can generally be determined by examining of the Title deed in the deeds office. However, it's important to note that registration in one's name does not always serve as conclusive proof of ownership. There are cases where a person may fully or partially own property, even if it is not registered under their name.

 Here are some examples:

 Prescription: Ownership of a property can be acquired through prescription if an individual has openly and continuously possessed the property as if they were the owner for a period of 30 years. For instance, if a boundary fence is incorrectly placed, the land within the fenced area can be acquired through prescription.

 It is uncommon, though, for someone to become the owner of a house through prescription. In such cases, ownership is acquired without the need for property registration in the new owner's name. However, the Registrar of Deeds will only cancel the former owner's registration and register the new owner upon obtaining a court order authorizing the transfer.

 If an estate agent is tasked with selling a property acquired through prescription, it is advisable to include a clause in the sales contract stating that the sale is subject to obtaining such an order.

 Expropriation: Under expropriation legislation, the government or authorized institutions can expropriate property and thereby gain ownership, even if the property is registered under the previous owner's name. The Expropriation Act 63 of 1975 stipulates that ownership transfers to the expropriating body on the date of expropriation.

 A notice of expropriation is recorded on the property's title deed, allowing an estate agent to determine whether a property is subject to expropriation proceedings. An estate agent should not accept a mandate to sell a property if they are aware or have reason to believe that it has been expropriated unless they obtain consent from the expropriating body. If a property is expropriated after a sale agreement but before the transfer is completed, the sale becomes void.

 Marriage in community of property: Spouses married in a community of property are co-owners of any immovable property that forms part of their joint estate, even if the property is registered solely under one spouse's name.

 Insolvency of the registered owner: According to the Insolvency Act 24 of 1936, when an individual becomes insolvent, including their immovable property, it becomes vested in the Master of the Supreme Court until a trustee is appointed. Thus, the registered owner of immovable property loses their ownership rights upon insolvency, even if the property is registered in their name.

 A note of the insolvency is made on the property's title deed to prevent its transfer without the trustee's consent. An unrehabilitated insolvent is prohibited from selling or leasing any property within their insolvent estate or entering into any contracts that adversely affect their estate, without written consent from the trustee. A contract that violates these provisions can be nullified by the trustee.

 However, if an insolvent sell property acquired after their insolvency, the sale is considered valid, even without the trustee's consent, as long as the purchaser was unaware of the insolvency. If an estate agent is uncertain about whether a particular property can be transferred from a seller to a buyer due to insolvency, it is recommended to consult the deeds office. It is also advisable to obtain written consent from an insolvent's trustee before entering into any contracts with the insolvent.

 In conclusion, the owner of immovable property is typically determined by the person registered as such according to the Deeds Registries Act. However, there are situations where ownership can be acquired through prescription, affected by expropriation proceedings, influenced by marriage in community of property, or impacted by the insolvency of the registered owner.

 These circumstances may alter the ownership status, regardless of the property's registration. It is crucial for estate agents and individuals involved in property transactions to be aware of these factors and consult the necessary authorities or obtain consent when dealing with properties under such conditions.

 For enquiries Text, Call or email #yourhomegirl Justina Hamupembe

Cell: +264812726001

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Last modified on Friday, 30 June 2023 21:56
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