Section 16 of the Namibian Constitution guarantees all persons the right to acquire, own and dispose of all forms of property in any part of Namibia. Certainly one must not lose sight of the fact that the guarantee of ownership is based on the application of the law by Government, courts and conveyancer, as well as the office of the Registrar of Deeds.
Although our system of registration may be described as a negative system – one in which the state does not guarantee the title and registry information is correct – disputes as to the validity of title are few and far between. The Namibian system of registration effectively provides the registered owner of land with security of title. In our system the true owner will always be recognised whereby such system gives more security to the legal and rightful owner and not to a faulty owner because of a wrongful registration. This means that, in the case of land being wrongfully transferred, a court will on application of the dispossessed owner order the current title deed to be cancelled and the true owner's title deed to be reinstated (section 6 of the Deeds Registries Act). This will restore the record of his ownership.
Indeed, Namibia has a reliable and secure property registration system. It offers a high degree of certainty with regard to the ownership of property from one person to another. This makes it unnecessary for a complicated system of Title insurance like many other develop countries.
If the property is fully paid for, the owner of immoveable property will normally have the Title Deed (in the form of a Deed of Transfer) of his/her property in his/her possession. The Title may also be in possession of the bank which holds a bond over the property.
It can be regarded that the Deed of Transfer serves a twofold purpose; an instrument by means of which the right of ownership of land is transferred from one person to another and proof of the owner’s right of ownership over the land.
The reliance placed on the title afforded an owner by an owner by due registration is aptly summarised by Hoexter JA, in the case of Frye's v Ries in the Appellate Division where he said the following: "As far as the effect of registration is concerned, there is no doubt that the ownership of a real right is adequately protected by its registration in the Deeds Office. Indeed the system of land registration was evolved for the very purpose of ensuring that there should not be any doubt as to the ownership of the persons in whose names real rights are registered. Generally speaking, no person can successfully attack the right of ownership duly and properly registered in the Deeds Office. If the registered owner asserts his right of ownership against a particular person, he is entitled to do so, not because that person is deemed to know that he is the owner, but because he is in fact the owner by virtue of the registration of his right of ownership."
All relevant information relating to a specific piece of land and its owner can also be determined from a Title Deed:
- Who the previous owner was and who the current registered owner is.
- Is the property bonded?
- When was the date of transfer?
- A detail description of the property (including size).
- Reference to diagram or general plan of the property.
- Conditions of Title and applicable servitudes.
- The right of use, the date of sale and the purchase price.
The above detail not only restricts an owner, but they also have an effect on the value of the property. In certain instances they protect the owner, for example the neighbours cannot encroach over your property or the property in front of you may not block your view.
When it comes to the actual processing of transfer (shift of ownership), the registration in the Deeds Registry is performed by a conveyancer. A conveyancer is a practicing legal practitioner (admitted by the High Court of Namibia), who has passed a specialised conveyancing examination to practice as conveyancer in Namibia. To lodge a deed for execution before the Registrar, the conveyancer must be in possession of the required certificate issued by the Board for Legal Education. The Deeds Registries Act stipulates that the Registrar of Deeds shall not attest, execute or register any deed or document unless it has been prepared by a conveyancer or a notary public
These and other stringent requirements of our law ensure that the new owner receive the property free of any encumbrances pertaining to a previous owner. This includes, amongst other things, that the previous bonds are cancelled and all necessary local authority for rates and taxes have been paid prior to transfer of the property in the name of the new owner.
The content of ownership is usually described as the capacity to possess, use, enjoy, dispose and destroy the land. Because ownership is regarded as such a strong right it is sometimes called an “absolute” right, meaning other people are not permitted to interfere with that right.
To protect the public interest our law places limitations on the absolute nature of ownership of immovable property.
Limitations on ownership
A prospective purchaser should always enquire about the usage or potential usage of a property he/she is interested in or which is perhaps neighbouring to the property he/she wants to purchase. Because our population expands, more and more land is developed. Land Use Control is the way that Authorities control the use of land and new developments in different areas. Town planning regulations and laws as well as environmental laws exist to ensure the orderly change and responsible development of land.
To control the use of land the authorities make use of five basic guidelines:
- Title Deed Restrictions
- Guide Plans
- Structure / Development Plan
- Town Planning Schemes
- Policy Areas
Title Deed Restrictive conditions of title are by far the most important conditions on an existing piece of land. These are conditions that are registered against the title deeds of a specific piece of land which restrict the use in a particular manner. Such restrictive conditions could include:
- Conditions relating to the use to which the stands may be put.
- Prohibiting the subdivision of property or the erection of a building unless it complies with certain requirements (e.g. that it must have a specific type of roof).
- The sale of property may also be restricted in terms of the provision of a will, for example when a parent bequeaths a property to his/her child on the basis that the property may not be sold before the child has reached a certain age. It could also be because of a pre-emptive right granted to the previous owner. Therefore it is always good to consult the Title Deed for those possible restrictive conditions.
- Conditions in favour of the local authority to gain access to provide services or restrictions against growing certain trees on the property. It may also include conditions regarding the design of all structures and buildings to be erected as well as a time frame for doing so.
Should special consents in terms of the title deed first be obtained before transfer can be affected, it may delay the transfer process.
Rights over property can include Personal Rights and/or Servitudes
The value of properties can be affected (increased or decreased) by servitudes. These servitudes must be respected by the registered owner at all times.
A servitude is a registered right that a person has over the immoveable property of another. A right belonging to “A” in the property of “B”, entitling “A” to:
- exercise some right or benefit in the property of “B” (a burden upon the property of “B”); or
- to prohibit “B” from exercising any of his/her normal rights of ownership.
An example is the right of way (which the holder of the right) may have to travel over the land belonging to someone else in order to reach his own property.
The Two Types of Servitudes:
- Praedial servitudes:
A registered servitude (right) which one property has over another. It is thus not a servitude in favour of another “person” but in favour of another piece of land. Praedial Servitudes can be divided into rural and urban servitudes (there is no legal significance in this distinction).
- Rural servitudes are: “right of way”, “water pipeline”, to “conduct electricity”, and “way of necessity”.
- Urban servitudes are: “right to encroach”, “light or view”, “support or projection” and “urban servitude of water flow”.
- Personal servitudes:
Personal servitudes are established in favour of particular persons over specific land and may confer a variety of benefits on their holders. They may be constituted for a fixed term of years or be granted until the happening of a future event or for the lifetime of the beneficiary, but not beyond his/her death.
Usufruct, Usus and Habitatio are all ways in which a personal right can be established for a beneficiary in terms of which he/she acquires certain rights over the land without becoming the owner thereof. This following will give a brief overview of what each of these three rights entails.
- Usufruct (Vruggebruik):
A usufruct may be defined as a right in terms of which the owner of a thing confers on the “usufructuary” the right to use and enjoy the land (of someone else) to which the usufruct relates. Usufruct is commonly used where a testator wishes to provide an income after his death to one person, but desires the property itself to devolve upon another person.
A usufruct over a farm will normally extend not only to all buildings but presumably also to the livestock, farming equipment and the furniture in the homestead, provided of course a contrary intention does not appear from the will or agreement, as the case may be.
As the usufructuary is entitled to the use and enjoyment of the property he/she is of course entitled to its possession, administration, and the natural and civil fruits coming from the property. The usufructuary has no entitlement to consume and destroy the thing and is obliged to preserve its substance. But he/she has the right to take, consume or alienate its fruits, whether they are natural, industrial or civil. The obligation to preserve the substance of the property means that the usufructuary is bound to maintain it and to defray the costs of all current repairs necessary to keep it in good order and condition, fair wear and tear only excepted, and all rates and taxes.
As the usufructuary is not the owner of the property that is the subject matter of his/her right, he/she cannot alienate or encumber it. Nor may he/she alienate the real right of usufruct as a personal servitude is inseparably linked to its holder. Because of the personal nature of this right, it cannot extend beyond the lifetime of the usufructuary. Because of this personal nature of the right, a usufructuary may not alienate his right of usufruct as such. He may, however, alienate, pledge, rent, lease or lend his usufructuary interest in the property to a third party.
The servitude of use resembles a usufruct, but the holder’s rights are far more restricted making it in essence a “lesser right” than usufruct. He/she may possess and use the thing to which the right relates if it is a immovable and occupy it together with his/her family and visitors if it relates to land. The holder may take the fruits of the thing for his/her daily needs as well as for the daily needs of his/her household, but nothing in excess of that. The holder cannot sell any fruits. Nor may he/she grant a lease in respect of a building, though this rule is subject to a number of exceptions. His/her use must be without detriment to the substance of the property and he/she may be required to give security for the due fulfilment of his/her obligations.
The servitude of habitatio confers on its holder the right to dwell (live) in the house of another together with his/her family without detriment to the substance of the property and without ever becoming the owner of the building (unless of course he/she legally buys it from the owner). Unlike a servitude of use, it carries with it the right to grant a lease or sublease to others.
The holder may occupy and enjoy the building and sublet these rights to a third party. In the case of usufruct, the holder is entitled to only cede his/her interests and not his/her rights, while the holder of a right to habitatio may cede his/her rights.
Usufruct, usus and habitatio are in many ways similar, but there are certain important differences relating to the rights, duties and implications flowing from them. Usufruct allows the holder to use and enjoy the thing and to gather and use the fruits, while usus only allows use and enjoyment, but not ownership of the fruits. Habitatio only allows occupation of a building, but the holder is in a position to cede his rights, unlike a holder of a usufruct or usus.
- Creation of servitudes
Until a right is registered it remains only a contractual right where one party to the contract may claim performance by the other. Before registration it would therefore not be maintainable against bona fide third parties. Only once the right is registered will it be maintainable against the world at large.
Registration either takes place by means of a reservation in a deed of transfer, in the circumstances envisaged in section 67 of the Deeds Registries Act 47 of 1937, or by the registration of a notarial deed accompanied by an appropriate endorsement against the title deed of the property, in respect of which the servitude is granted.
- Cancellation of servitudes
Both praedial and personal servitudes can be cancelled by notarial agreement between the owner of land encumbered by the servitude and the holder of the servitude by Bilateral Notarial Deed of Cancellation or Unilateral Notarial Deed of Cancellation, if no obligation is imposed. A personal servitude also lapses where it is granted for a specific period only or on the death of the holder of the servitude or in the case where the holder of the servitude also becomes the owner of the property.