Title deeds will spare you a lot of grief.
Financial Gazette
31/7/2019
VERY few people seem to appreciate the need to obtain title deeds for their properties once agreements of sale have been concluded. Acquisition of registered title to land or immovable property is a corollary of every agreement, but ignorance, and a critical lack of awareness campaigns by government and other stakeholders cause people to live and die without initiating the process of acquiring title.
Yet the acquisition of title deeds for any immovable property, be it a farm, business premises or residential dwelling is of extreme importance because of the legal rights conferred by that process. Thus, the domain of the law of ownership is essential to the public so that in daily dealings, when individuals acquire or dispose of property, problems commonly associated with this process may be averted or minimised.
While a good number if people have easily been able to acquire title deeds as demonstrated by the extent of registrations occurring, daily at the deeds office, there is one category of people who have for various reasons not been able to actively seek registration of their properties. Admittedly, one reason central to the failure by people occupying council developed land lo get title, is the cost involved because by law, all applications for land registrations must be done by a qualified person called a conveyancer. Therefore, whereas one does not need a lawyer or conveyancer to register say a firearm, or birth of a person, a marriage, or a motor vehicle, the same cannot apply with land registration. The seemingly prohibitive fees charged by legal practitioners taxes levied by the state and other costs demanded by local authorities all make the task of acquiring title deeds an expensive and onerous one.
Nearly half of the nation’s urban population occupy houses that were developed by local councils, and it is such occupants who, according to my observations, have not timeously sought to assert their rights of ownership. It is for this group of people that this article is particularly dedicated to.
In order to put readers into the proper perspective of the subject under discussion, 1 shall briefly explain the urban tenure system as I understand it.
The general pattern is that or, let me say, used to be that (since many housing developments by municipalities have been undertaken lately) beneficiaries would be leased council land through a “rent to buy” scheme. After a number of years when occupants would have paid all the sums due to council, and where certain conditions would have been met, transfer may then be passed from the local council to the occupant.
One of the conditions precedent is that a dwelling house meeting the specifications of the local council must be erected on the leased land, and only where a certificate of occupation has been issued will one be entitled to apply for title deeds. Unfortunately, some occupants who have long paid for their properties have spent decades struggling to erect or complete their houses, resultantly being unable to qualify to apply for title deeds. While in practice, these individuals will be deemed to be the “owners”, in the eyes of the law and for as long as the properties are not registered in their names, such properties will belong to the relevant local councils.
With such a scenario, occupiers may not be able to enjoy full benefits of ownership, and such benefits or rights include the ability to alienate the property independent of the local council. In situations where title deeds are still held by the municipality, and where one intends to sell, such a sale cannot go ahead unless sanctioned by council, which in effect will be entitled to give such consent by virtue of being the legal owner.
Occupiers also suffer another constraint in that they cannot access loan finance requiring mortgage security because they will not be holders of title deeds. Understanding the broad subject of law and ownership is not an easy task for this is a “hard hat” area that even some legal practitioners shudder to venture into. Despite the apparent complexity of the subject, I shall attempt to water it down so that it does not appear like a matter of confusion to my readers.
Registration of title to land creates a right to that land by the owner and once absolute ownership is created, one can use and enjoy his property without hindrances. One can also destroy it, alienate it or do such other things as are consistent with law in the exercise of his rights over that property.
A right over land created through registration is enforceable against anyone, thus where disposed, an absolute owner can claim re-possession, or ejectment of illegal occupiers, or even further, remove obstructions like trees and rock. Without claiming to be a fundi in sociological matters and arguing from a non-legal; position, it is indeed true that the exercise of ownership brings pride and joy. It is a source of success, and in the main creates a social status that as humankind, we always quest for.
To those who procrastinate, or show little desire to getting title deeds, there are many dangers that stand across their paths. Such danger usually affects those who enter into sale agreements for privately owned land. In an earlier article, it was highlighted that in situations of double sales by malevolent sellers, the purchaser who acquires title is by law deemed to be the absolute owner. It may not matter that the one whom title is subsequently passed was a second purchaser.
With regard to council owned properties, where generations come and go without title deeds being organised, a problem is created for the second or third generation progeny who may not be able to properly trace and assert their rights of inheritance. The cacophony of beneficiaries and claimants to such a deceased estate always make the task of the estate administrator unduly burdensome.
- Muza, a Harare-based legal practitioner, writes in his personal capacity.