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SV420 LAND LAW LK04

Basic Concepts of law

What is law?The famous 19th century English Legal Scholar; John Austin, once defined law as; "the general commands of the sovereign supported by the threat of sanction".Modern scholars have tended to emphasize the importance of the judiciary in determining what is law. Accordingly it is possible to extend Austin's definition so that it now reads" Laws are general commands of sovereign supported by the threats of sanctions, as interpreted and determined by courts". Definitions of this sort fall within the school of jurisprudence known as positivism, which holds that law is simply anything inacted by an established legislature.Jurisprudence means "legal philosophy".This position contrasts with that of the natural law, which argues that law in order to qualify, as law in the full sense of the word must contain within itself, a minimum moral content.Example: The positivist believes that any bill duly passed by parliament is law. There is no need for any further enquiry. The naturalist however will want to know first what the content of the legislation is. If he finds that it violets what he might refer to as the moral law of the universe he will not regard such an enactment as being law in the true sense of the word. On this basis legislation that perhaps discriminates against certain specified groups in ways deemed to be unacceptable would clearly fall within the ambit of enactments lacking the necessary minimum content to qualify as law.The essential purpose of the law is to regulate human behavior. It involves before hand what the rules of conduct are. It is important to grasp in most cases that the law is only concerned with the external behaviour of members of society.Thoughts alone are not subject to punishment, however it must be stressed that in many instances a person's legal liability will depend on whether his act was accompanied by the requisite intention.The word sanctions, which has been referred to; simply means punishments or penalties. A person convicted of a criminal offence will be punished by being sentenced to a term of imprisonment, fined or even executed depending on the nature of the offence.Sanctions can also be applied in civil matters. Briefly civil litigation embraces all those court cases that are not criminal, e.g. a breach of contract action would be an instance of civil litigation.Litigation means court action.A part who fails to perform his obligation in terms of a validly constituted contract would find himself subject to a court order for either specific performance or damages.A deed of sale of a piece of land must be in writing and signed by both parties in the sale or their authorised agents. If the deed of sale is not formally correct it is said to be null and void- there is no sale and no contract. This is the sanction of nullity.

Another term that frequently crops up is EQUITY; this is the collection of principles based on the conceptions of ideal justice but not supposed to be instinctively known. In this respect it is similar to the idea of natural justice referred to earlier.

ROMAN-DUTCH LAWIn Zimbabwe and South Africa the common law is referred to as Roman-Dutch law.This system of law originated in Holland and was transplanted into South Africa by the colonial process. In 1891 the then colony of Rhodesia adopted the South African common law as it existed on the 10th of June 1891.Since then our system of law has also been strongly influenced by English law, so that while our system is still referred to as Roman-Dutch law, it is infact kind of hybrid of English and Roman-Dutch Law.

Sources of law Most continental systems of law are codified, that is , the law of the country is is reduced to writing and is contained in one complete piece of legislation, but in Zimbabwe and South Africa we draw our knowledge of the law from various sources.It is usual to consider the sources of law in the order in which they normally appear in social development, but as statute law prevails over all it will be dealt with first.

LK04 Land Law Lecture Notes1

1.StatutesIt is necessary to have some means whereby new laws and amendments to existing laws can be introduced speedly. In a democracy this authority is described by the general term Legislature. The legislature makes laws which are called statutes or Acts and it has the power to amend or repeal statutes already in existence.Legislation is by far the most important source of law in any advanced legal system, and practically all modern law is created, amended and abolished by legislative process.In Zimbabwe the legislative power is vested in the legislature, which consist of the president and the parliament. The kind of laws made in this way are collectively referred to as statute law.Each separate law is referred to as an Act. In most cases an Act will set out broad principles only, and will authorize some other person or body to issue other enactments to provide for the detailed administration of the Act and the implementation of the principles involved. Enactments made under such delegated power are generally known by the collective term statutory instruments. Subsidiary law making authorities can only pass legislation to the extent that they are empowered to do so by the enabling act of parliament."Subsidiary law must be intra-vires to the enabling act" In Zimbabwe all legislation must be framed in terms, which do not conflict with the wording of the constitution. The Supreme Court in the event of any litigation concerning the act will strike down Acts passed by parliament, which are contrary to the provisions of the constitution.

2. CustomNatural law is defined as the behavior patterns man developed to accord with his instincts, and the rules of conduct he adopted to meet environmental challenges. The members of the community automatically practiced and maintained the customs they regarded as necessary or desirable and these became entrenched as part and parcel of their way of life. Where an act has for some considerable time been performed in a particular way, a custom exists that the act shall be so performed. Where the state requires obedience to the custom, it is law..

3. Legal WritingsThis has been and remains an important source. Where parliament has not legislated concerning a particular matter and where no appropriate case law precedent exists the courts will look to the writings of the old jurists for guidance. Indeed as we should see, much of our case law derives its authority from the writings of ancient jurists. In Roman-Dutch tradition the most important writers were Grotious, Van Leeuwen and Voet, all seventeenth century jurists. Sometimes the ancient jurists of Roman law are also referred to.

4. Case LawThis is also known as Adjudication.Judicial decisions interpret and determine the meaning of statutes and also use common law principles where appropriate in dealing with criminal and civil matters. By judiciary decisions, are meant court judgements.Once the court has ruled on a matter before it, the judgement serves as a binding precedent in future cases. In other words judgements establish points of law.

Does this mean that courts create new law?The answer is both yes and no.YES in the sense that where there are gaps in the common law, the courts will use a process of inferential reasoning to develop and expand law.NO in the sense that strictly speaking all the courts do is apply the law as enunciated by parliament, the jurists or case precedents.The principle by which courts are bound by precedence is known as stare decisis. All important judgements are published in the law reports, which are then used for reference purposes.

The division of law

The most fundamental division of the law is into public law and private law.The value of this division is recognised by most jurists, and it is the classical division.


Public law may be defined as part of the legal system in which legal rights and duties are exercised by or enforced against the state; in other words, it is concerned with that section of the law in which the state is, directly or indirectly, one of the parties, or that part of the law concerning public affairs.Private law, on the other hand, deals with that part of the law relating to actions between private individuals.

Public Law

Public law is generally limited to: Criminal law, Constitutional law and Administrative law.

Criminal LawIt is difficult to define criminal law. However it must suffice here to emphasize that if a wrongful act is one for which the wrongdoer can be prosecuted and punished usually by means of a fine or imprisonment, then it is a crime. It is a fundamental principle in criminal law that the burden is on the prosecution to prove the accused's guilt. The onus of proving beyond reasonable doubt that the accused not only committed the act, but also did so with the guilty mind requisite to constitute the crime charged, rests upon the prosecution throughout a criminal charge and never shifts to the defence.

Constitutional LawIs that body of rules which determines the constitution of the sovereign government, its structure,

powers, and functions.

Administrative LawIs concerned with the exercise of the sovereign powers, by the officers who are entrusted with the

administration of departments and to whom portions of the sovereign power are delegated.In short it is concerned with the organisation, powers and duties of administrative authorities, which

have powers delegated to them by a legislative and a judiciary nature.For example the Council of Land Surveyors, the governing body of the land surveyors profession is

given powers by the Land Surveyors Act, Chapter 27:06, to make regulations as regards the conduct of Land Surveyors and their assistants.The chief form of delegated legislation, however is that exercised by Government departments.

Regulations appear under various names, such as, rules, orders, and by-laws. The largest and most important part of subordinate legislation is comprised in what are known as "Statutory Instruments."

Private LawThis is also known as Civil law. The commonest division of civil law is that which distinguishes

between the law relating to obligations, property and status.

1. Law of ObligationsThis basically covers the law of contracts, which determines the circumstances in which a promise

shall be legally binding on the person making it.Concerned with rights in personam, i.e. personal rights.

2. Property LawIs concerned with rights in rem, i.e. rights, which avail against persons generally.Security of property is a right and a duty, which one claims from and owes to the world at large. This

right can be infringed by anybody, and it therefore avails against everybody.

3. The law of statusThis relates to persons, and their capacity or disability at law. Whilst it is true that "the law is no

respector of persons" or, in other words, that law assumes that all persons are equal at law, it will be readily appreciated that the law must treat certain classes of individuals as suffering from certain "disabilities." A person under the age of 18 is legally an infant, and as such he is in some respects, particularly in the law of property and contract, under a legal disability.The term "person" has a wider meaning at law than in everyday usage, for it includes what are termed

"legal persons" or some times "artificial persons."


International LawThere is no general agreement amongst jurists as to either the nature or the correct definition of

International Law. One definition is- "the rules which determine the conduct of the general body of civilized states in their mutual dealings.

Structure of the CourtsThe highest court in the country is the Supreme Court.This is followed by the High Court and below the High Court are Magistrate Courts, which are

divided into regional and provincial courts.The judgements given by magistrate courts are not recorded in law reports.Both the magistrate and high courts are trial courts; i.e. they are courts of first instance. The Supreme

Court is usually confined to hearing appeals and is not thus generally a court of first instance except with regard to certain constitutional questions.

Legal PractitionersEver since 1981 when the bar was fused all legal practitioners had been entitled to appear in all courts.

Previously only Advocates were allowed to appear in the higher courts.In practice however a de facto bar still exist and those legal practitioners before fusion practiced as

Advocates still specialise in court work because of their experience in that field. Advocates are also referred to as Barristers.Attorneys are legal practitioners specialized in non-court work such as drawing up wills, contracts and

giving general advice.Conveyancers are attorneys who are qualified to prepare deeds for registration in a Deeds Registry

Office.Notary Public is an attorney authorised to execute certain types of deeds, relating to the acquisition or

disposal of real rights in immovable property. Such documents are usually referred to as notarial deeds.

Land LawDeals with the kinds of rights one can enjoy in land.What is land law about?It is about four things:

i. Ownership- Ownership has various sides to it. Important among these is:(a) Title- a term regarded as indicating the legal right to land(b) Another aspect of ownership is concerned with the question- "what physically

does the land consist of?(c) Another aspect of ownership is concerned with the periods of time for which

land may be granted, by one person to another.ii. The interests in land held by persons other than the Owner

iii. Restrictions andiv. The machinery of land law

CONVEYANCING

Deals with the transfer of these rights in land to others.The rights in land with which land law is concerned are of two types:1. rights which enable one to enjoy the land itself, e.g. absolute ownership2. rights which place restrictions on someone else's land in your favour, eg. Servitudes.

What is land?Land includes land of any tenure and mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way).Land therefore consists of the following: Incorporeal hereditaments- e.g. servitudes, which are not things at all, but rights (not tangible)


Corporeal hereditaments-, which is the earth itself to an infinite depth and also the air, space to an infinite height. It includes the entire natural and permanent features, which are, part of or affixed to land (i.e. the physical matter over which ownership is exercised).The general maxim of the law: "What is annexed to the land becomes part of the land."

Aside: Hereditament is an archaic word for "land", in short the soil and its accoutrements are land.

Legal RightsA legal right is an interest conferred by and protected by law, entitling one person to claim that another person or persons either give him something or do an act for him or refrain from doing an act.From this definition follows the concept of "rights in things", i.e. jura in re.These are negative rights. By way of explanation if you have a right to the use and enjoyment of an object, this is the same as having a right to insist that all persons; that is every one in the world other than yourself, refrain from using and enjoying that object and refrain also from preventing and impairing your use and enjoyment of it.In other words you can, but all others cannot and hence this is regarded as a negative right.This class of rights is known as real rights and must be distinguished from personal rights.A real right establishes a direct legal connection between a person and the thing; the holder of the right being entitled to control that thing within the limits of his right, without any necessary relationship with another person. In terms of personal rights on the other hand, a person becomes bound to the person who holds the right to render a particular performance i.e. to do or not do something, the performance itself being the object of the right. It never establishes a direct legal connection between its holder and the thing in any respect of which performance can be rendered.Silber. & Shoem. note that " the power of direct control which is conferred on the holder of a real right is as a general rule protected against interference by any other legal subject while emphasizing that a real right to a thing, conferring power of direct control over such thing. We should accordingly bear in mind that it also constitutes legal relationships between legal subjects; mutually, the holder of a real right having a right to a thing which as a general rule is enforceable against all others i.e. against any person who seeks to deal with the thing to which a legal right relates in any manner which is inconsistent with the holder's power to control it (and in so far as a person may have a real right to another person's thing), a real right is also enforceable against the owner of that thing.Real rights therefore belong to the category of rights known as absolute rights.Some examples will help illustrate this point:

Since a person's right of ownership is absolute, he may generally enforce it against persons who have acquired control of a property as a result of it having been stolen. The right does not only apply against the actual thief but also the subsequent purchaser in good faith or indeed all other persons. The owner is entitled to the return of the property in question. Mere payment of compensation will not suffice since the property or thing is the real object of this right of ownership.

Silb. & Schoem. point out that in the same way the holder of a servitude in respect of a piece of land is entitled to enforce such servitude as being a limited real right not only against the original grantor but also for the duration of his right against all successors, creditors, etc irrespective of whether they had actual knowledge of the existence of the servitude. His remedy against any person who seeks to deal with the land in a manner which is inconsistent with the exercise of the servitude is furthermore not restricted to a claim for damages, but he will be entitled to actually claim control over such land in so far as it is necessary for the effective exercise of his right. This is so because the land itself is the object of his real right.A personal right on the other hand may generally be enforced only against particular persons, where some kind of special legal relationship has been founded in terms of for example, a contract, or a delict, etc. It obviously follows from this that personal rights are in a sense relative rights.Silb. & Schoem. give the following example:

Suppose A sells his car to B who consequently acquires a personal right by virtue of the contract of sale which entitles him to claim delivery from A. Before delivery takes place A enters into a second contract with C, who is unaware of the prior sale. C forthwith takes delivery of the car and thus becomes the owner thereof. The personal right acquired by B will not enable him to successfully claim the car from C, because it is said, its enforceable only against a particular person, in this case A. If however the car was delivered to A prior to the second sale and delivery as a result whereof, A acquired a real right of ownership, he will be able to claim the return of his car from whosoever is in control thereof, because it is said to be enforceable against the world at large, thus being absolute.


Finally it is important to understand what constitutes a person in terms of law.Naturally individual human beings are persons. However in law entities, like institutes, companies, etc, are regarded as persons even though they are artificial entities.

The Concept of OwnershipOwnership may be defined as the sum total of all rights in a thing.According to Silb. & Schoem. "Ownership embraces all the power to use, alter, destroy or alienate the thing concerned, to enjoy the fruits thereof, to prevent others from using it and to transfer rights to the thing, e.g. in respect of its use to others (provided his conduct is not contrary to statutory provisions and does not interfere with the rights of others)." In a nutshell the right of ownership gives the owner of the thing, the power to do with it as he deems fit, subject only to limitations imposed by public and private law. If one enjoys part of the rights in a thing, the relationship cannot constitute ownership, eg. Mere possession of something does not entail ownership.What is a thing?The term thing comprises a wide variety of objects that no practical definition of it is possible. It includes not only material objects, but also imaginary ones, such as rights.Things are divided into the following classes:

i. Those, which can be owned by persons and those, which cannot.ii. Those, which are actually owned by persons and those, which are not.

iii. Corporeal things and incorporeal thingsiv. Movable and immovable things

Corporeal things are the tangible objects.Incorporeal things are not tangible, e.g. rights.Basically the test to be applied is: "Can a thing in question be perceived by the senses?"If it can, then it is obviously corporeal.Both corporeal and incorporeal things may be further subdivided into movable and immovable things.Silb. & Schoem. note that this division is not only theoretical but also of the greatest practical importance in so far as the law applicable to these two classes of things often differs substantially, e.g. for a valid transfer of ownership, registration in a Deeds Registry Office is required in respect of immovable things while delivery suffices in the case of movables.Basically movable corporeal things are items that can be readily moved from one place to another. Silb. & Schoem. Note that " a thing which is not movable today may become movable tomorrow, e.g. a stone before and after it has been quarried.Conversely a movable may be fixed to an immovable thing by natural or artificial means in such a manner that it looses its identity and becomes an integral part of the immovable thing. Where it has been attached by artificial means, the decision whether a movable has lost its identity depends primarily on 3 factors, objectively: The nature of the thing and The manner of its annexation and Subjectively on the intention of the owner of the immovable at the time of its annexation.

Immovable corporeal things include land and everything attached to the land, by natural or artificial means e.g. a growing crop of wheat.An incorporeal thing may also be regarded as movable or immovable.Silb. & Schoem. note that "a distinction should in the first instance be made between real and personal rights, i.e. between rights having things and rights having performance as objects respectively."All personal rights are movable even if the performance concern consists e.g. of transfer of immovable property.As regards real rights a further distinction should be made between real rights having immovable and movable things as object respectively; the former being immovable and the latter being movable, thus mineral rights and praedal servitudes should be classified as immovable, while personal servitudes are movable or immovable depending on the nature of the objects. Consequently usufruct of a herd of cattle is movable while usufruct of land is immovable.Similarly a lease of a piece of land is regarded as immovable because that is the nature of the land to which the lease pertains.

The ownership of a thing has been defined as the sum total of all possible rights in that thing.It can de defined also as a legal relationship between a person and a thing, which if established to the satisfaction of the law, is proof that the necessary title vests in the owner. The fullest control and


widest rights and powers, which can be conceded to a person with respect to that thing. The important words here are those underlined.They raise the questions:

i. What is title andii. How is it proved?

A legalistic definition of title would be " Title is a juristic act whereby a person acquires the ownership of a thing."In the case of movables the proof of title is often difficult, although the actual possession of a movable thing by a person raises the presumption that he is the owner of it. Obviously such a presumption is easily rebutable.In the case of immovables and in particular of land and rights in land, proof is simple and rarely should there be any disputes. Note that possession i.e. the physical control of a thing with the intention of retaining that control for one's own benefit of a piece of land is never alone proof of ownership, for it is possible to retain title to land while being divested of the right of possession. It is important to distinguish between what is termed ownership and is described in law as plenum dominium and a less complete relationship, which might be described as dominium non-plenum, and even nudum dominium.In modern society, the owner of a property does not enjoy all the rights of ownership in respect to the land to which he has title. A man cannot build his house on a plot of ground without authority. He cannot subdivide it without consent. In urban areas he cannot use the land as a cattle market without permission.The concept of ownership is necessarily reduced to plenum dominium, so that all members of society live without being unreasonably disturbed, by their fellows.Some of the rights of ownership are thus reduced by statute. However, some of the rights, may also be delivered entirely and deliberately by the owner into the control of the second party. Further the principles of equity may cause a right in a property to be transferred from the owner to another person.

Acquisition and Disposal of rights in land

This may also be regarded as the formation of real rights in land.There are several ways of acquiring these rights:a) Delivery

Generally referred to by the Latin term "traditio". Obviously as a prerequisite to delivery certain basic conditions must obtain. These are as follows:

i. The thing must be capable of ownershipii. The owner must be capable of passing ownership and must inten to transfer that ownership to the

transferee.iii. The transferee must be capable of and in turn accepting ownership from the transferor.iv. There must be an appropriate form of delivery e.g. in the case of immovables, this will be formal

registration or contract if the right is merely personalv. In the case of a sale for cash, the payment must be made.

There are various forms of delivery. In the first place there is physical or actual delivery known as "traditio vera"; here the thing is physically handed by the transferor to the transferee, while their intentions determine the nature of the real right which later obtains in it e.g. the right of ownership.Silb. & Schoem. note that " in such cases neither the objective or subjective element of transfer is likely to raise any problems. The state of mind of the transferee is in general sufficiently shown by his acts.Nevertheless it will not always be easy to study or establish the intention of the transferor e.g. whether he intended to transfer ownership or whether he intended him to become merely a kind of agent."Infact, the question of what the party is, will be determined by the courts objectively. This means; examining the nature of delivery in a context of the circumstances surrounding it. In other words, the court will look at what the parties said and did.Sometimes delivery may be constructive rather than actual. This means that ownership or some other real right is transferred without a physical handing over of the thing. However the physical element is still of some importance. According to Silb. & Schoem. " the transferee is either :

(a) Placed in a position to exercise physical control- traditio longa manu and traditio symbolica.(b) Already in physical control by virtue of some other legal relationship- traditio bravi manu or(c) Someone else exercises physical control on his behalf"


Looked at in more detail, the important forms of delivery are as follows:1) Delivery bravi manu

Here the intended transferee is already in possession of the thing, in respect of which he shall acquire ownership e.g. leases

2) Delivery longa manuAccording to Silb. & Schoem. " it is necessary and sufficient that the transferor places the thing to be transferred at the disposal of the transferee so that the later can immediately exercise effective control over it. It is however generally assumed that it applies only to those cases in which the thing is placed at the disposal of the transferee in the presence of the later."This is obviously the ideal form of delivery, where the things are difficult to move because of their large size.

3) Symbolica deliveryIs applied to all those transactions in which the transferor supplies the transferee with the means, which will enable the later to deal with the property in which he is supposed to acquire a real right. In these cases the thing is neither handed over nor pointed out.Transferee is supplied instead with the symbol, or rather the means which will enable him to take the property into physical control or to dispose by handing the symbol to another person to whom he in turn may wish to transfer the thing which that symbol represents e.g. keys to a warehouse or storerooms.Note that in the case of immovables, incorporeal and corporeal, delivery is effected by registration of title in a Deeds Registry. The title to every parcel of land other than unalienated state land is constituted by either a deed of grant or a deed of transfer together with a diagram of that land.Title to a right in a registered piece of land is constituted either by an endorsement on the title deed or by registration of a notarial deed.

b) SuccessionA person may stipulate in his will that at his death, his estate including his landed property will pass to persons named in the will as beneficiaries. The heir does not become the owner to the property until the procedure of delivery is carried out, which in the case of land is transfer by registration. When the landowner dies his property, which is known as the deceased's estate vests in the Master of High Court and then in the Executors of the estate. The duty of the Executors is to distribute the estate according to the terms of the will. Until transfer takes place the beneficiary has a mere claim against the estate.Note that certain provisions in statute may prevent the disposal of land according to the exact terms of the will.

c) Marriage in Community of PropertyThe usual practice in Zimbabwe is marriage out of community of court, although it is possible to be married in community of property. In the later case and for countries where this is the usual practice:

i. Half the property of the husband vests in the wife and half the property in the husband.ii. The husband acquires what is termed marital power; this means that he alone has the legal

capacity to dispose of the common property. Note that this community of court applies equally to property gained before and after marriage.

d) ContractReal rights may never be constituted by contract. A deed of sale is a contract between one part who contracts to sale and the second who contracts to purchase a piece of land. This contract neither creates nor transfers any rights in land. It merely obliges the parties to honour their agreements. Contracts give rise to only personal rights. Note that while every contract is an agreement, not every agreement is a contract. Contracts alone are enforceable in law. The following elements are characteristic of contracts:

i. The contractual agreement must be based on a reasonable cause and the parties to the contract must seriously and deliberately intend to create an obligation binding them in law.

ii. The parties to the agreement must have the legal capacity to contractiii. The agreement must be possible of performance physically and must be legally permissibleiv. The contract must be in accordance with the appropriate formalities for the type of contract

intended.


e) StatuteIt is possible for the state, local authority or other statutory body to become the owner of land by virtue of provisions in statute law. It is a weakness of the registration system that the transfer of ownership in this manner is not necessarily accompanied by formal transfer in a Deeds Registry Office, hence a public record of ownership may not immediately reflect the actual facts. The most common modes of this method are Vesting and Expropriation.The land acquisition act is an example of a statutory instrument used to acquire rights in land, in Zimbabwe.Roads normally vest with the local authority in all urban areas.

f) AccessionAccession is a method of acquiring ownership by a person in a thing by virtue of it being added to, or incorporated with, a thing belonging to himself. It can either be natural (where it is due to the action of nature) or industrial (where it is due to human agency) or mixed (when due to both). In South Africa, if a person owns a riparian property and the river, which runs along, one boundary of his land deposits alluvium along the banks so adding to the extent of the land, then the owner acquires ownership of this land by accession.In Zimbabwe, the situation is different. Section 52 of the Water Act states that whenever a public stream which forms the boundary between 2 or more pieces of land changes its course, the boundaries of land are not changed thereby, provided that a riparian owner cannot become a non-riparian owner.

g) PrescriptionIn terms of the prescription act SI 31/1975, a person shall by prescription become the owner of a thing which he has possessed openly as if he were the owner thereof for an uninterrupted period of thirty years or for a period which together with any periods for which such thing was so possessed by his predecessors in title constitutes an uninterrupted period of thirty years.

h) Order of the CourtA competent court may order the ownership of land to be transferred, or that some right in land be transferred to a person or persons named in that order. This type of transfer will always be associated with formal registration. An order of court will arise from a trial action, appeal or plea for a declaration of rights.


SECURITIESThe Deeds Registry is an office of public records. Originally no official record was kept of changes in ownership of land or of transactions where land was the security for an obligation. This could and did result in malpractices arising and persons being defrauded, as they had no means of knowing who the true owner of the land was or whether it was encumbered. A system of land registration was therefore instituted and our system is based on that of the Cape of Good Hope, which again was introduced from Holland and the registers are kept for all land to which title exist, so that frauds and disputes are minimised and all interested parties are sure of their rights and obligations. I have divided the rights into three categories, being Mortgage Bonds, Leases and Servitudes. How do we go about the registration of immovable property? This system of land registration came up to Zimbabwe with the colonialists, when they opened up the interior. The original title to all land held in private ownership usually stems from a Grant from the sovereign power. In Zimbabwe, this was originally the B.S.A. Company, then the Crown represented by the Governor and now it is the State represented by the President. We look at the various types of Deeds in the next chapter.

Bonds

What is a mortgage bond?A mortgage bond is a right over the property of another person, which serves to secure a debt or obligations and a mortgage bond as far as the Deeds Office is concerned is one prepared by a legal practitioner and attested by the Registrar of Deeds, especially hypothecating immovable property. A bond over immovable property is a notarial bond and is executed before and attested by legal practitioner. Property can only be mortgaged by the owner or his agent appointed by Power of Attorney. A mortgage bond will disclose the identities of the debtor and creditor, the obligations, the amount and rate of interest payable and in most cases the conditions and time of repayment. Upon registration of a mortgage bond, a summary of the particulars thereof is endorsed against the title deed of the land mortgaged, the land register, folio and personal card of the Debtors. Once a mortgage bond has been registered, it may only be dealt with by the Registered holder or his agent authorised by a power of attorney. The registered holder may sale the bond or pay a debt therewith and in order to secure the rights of the purchaser or payee, the bond must be ceded to him and inorder to be binding on third parties, the cession must be registered in the Deeds Office. Upon registration the cedent (the original creditors) falls out of the picture and the cessionary (the new creditor) may deal with the bond. The rights under a mortgage bond may also be given to someone as security and to accomplish this, the bond must be ceded by the creditor to the third person as security. In this case the cessionary does not become the new owner of the bond. He only holds it as security and the bond can only be cancelled by the original Creditor providing the cession as security has been cancelled or the holder as security joins in the cancellation).

Leases


What is a lease?A lease is a contract whereby one part agrees to give another the use of immovable property and the other party agrees to pay him a price in return. This price is known as the rent. A lease is formed by the consent or agreement of the parties: that the object of the contract is to let and hire ascertained property (the reason why a diagram is needed when only a portion of land is being

leased) at a fixed rent

The Lessor remains the owner of the leased property and the Lessee pays him the price in installments with the consequence that continuing, duties imposed on both parties. The Lessee's right under the contract is to claim from the Land Lord the use and enjoyment of the property and in the case of a long lease, registration of the lease against the title deed of the property. If a long lease has been duly registered, the Lessee obtains a real right in the property, (by real right we mean rights of ownership, these being the rights to possess the land, to use it, to enjoy its fruits, to alienate it and destroy it so that successors in title to the property are bound; for instance the successors in title will be subject to the lease as long as it has not been cancelled or expired).The owner of immovable property subject to a duly registered mortgage bond may if not precluded by the bond, grant a lease of the same without the consent of the mortgagee and is entitled to registration of the lease without such consent but the lease will of course be subject to the bond.When the property is put up for sale in execution or as insolvency and the highest bid for it subject to the lease is insufficient to cover the mortgage debt, the Sheriff or the trustee as the case may be, is entitled to sell the property free of the lease, with the consequence that the Lessee's rights in the property come to an end.Leases cannot be terminated at the will of the Lessor or Lessee, but by agreement of the two, by way of a bilateral Notarial Deed. A short lease is normally for a period less than 10 years whereas a long extends for a period more than years.

SERVITUDES

What is a servitude?

A servitude is a right to use or enjoy in a definite manner a subject owned by another. As far as Deeds Registry is concerned there are two kinds of servitudes.These are praedal servitudes and personal servitudes.

Praedal ServitudeIn praedal servitude, one piece of land serves another. It is constituted for the benefit of or in favour of a particular piece of land over another piece of land. The piece of land having the right (benefit) is called the dominant tenement and the piece of land having the corresponding obligation (burdened) is called the servient tenement.The tenements must be neighbouring but not necessarily contigous. Where the servitudes are for joint use of both the properties, such as joint rights of way or common or party walls, both


properties are in turn the dominant and the servient tenements. A servient owner can grant right of way servitude to more than one dominant tenement.Praedal servitude may be created by means of a deed executed by the owners of the dominant and servient tenements and attested by a Notary Public. If the servient tenement is mortgaged or subject to any other real right with which the servitude may conflict, the bond or the registered deed by which such right is held shall be produced together with the consent in writing of the legal holder thereof to the registration of the servitude. The title deed of the land affected should be endorsed as to the nature of the praedal servitude.A joint owner in a property cannot without the consent of his co-owner; grant servitude, for example a grazing right cannot be registered against an undivided share in land without the consent of all the joint owners thereof. A joint owner cannot without the consent of his co-owners, appropriate part of the soil for the purpose of making bricks. The only acceptable course in such circumstances is for the co-owner to obtain the consent of all his co-owners to the registration of praedal servitude against his undivided share. Praedal servitude can be terminated by(a) agreement(b) forfeiture (or becoming void, or not renewed or one party defaults)(c) expiration of time(d) merger

Personal ServitudesA personal servitude is one, which is attached to a person individually and not as owner of any immovable property. They are popularly known as "handshake agreements". Such personal servitudes will include usufructs, trading rights, cutting of timber, quarrying for stone etc, if they are reserved in favour of an individual. No personal servitude of usufruct purporting to extend beyond the lifetime of the person in whose favour it is created shall be registered, nor may a transfer or cession of such personal servitude to any person other than the owner of the land encumbered thereby may be registered. A personal servitude may be reserved by a condition in a deed of transfer of land, if the reservation is in favour of the transferor. If for any reason a personal servitude has lapsed, the registrar shall on written application by or on behalf of the owner of the land encumbered thereby, accompanied by proof of the lapse of the servitude, the title deed of the land, title deed of the servitude if any, note on the title deed of the land and of the servitude that the servitude has lapsed.Examples:1. Usufruct2. Usus3. Fideicommisum4. Habitatio

Liens

What is a lien?A lien is a right of retention, i.e. the right to retain possession of the property of another person until some obligation; usually a debt has been discharged.It is therefore a right conferred by law on a person who is in possession of the property of another person, on which he has expended money or money's worth, of retaining possession of the property, until he has been duly compensated.When such a creditor has possession of the property in question and the expenses incurred are neccessary or useful expenses, he obtains a real right in it.Liens are of this type are known as "enrichment liens, to distinguish them from " debtor and creditor" liens, where the creditor has no real right.

Classes of Expenses

Expenditure by a person on property is divided into 2 categories:


i. Impensae necessariae - i.e. necessary expenses namely those incurred in the preservation of the property, and without which it would either perish or deteriorate.

ii. Impensae utiles - also known as useful expenses, namely those which enhance the market value of the property by improving it and

iii. Impensae voluptuariae or luxurious expenses - namely those which neither preserve the property nor increase the market value, but merely gratify the caprice or fancy of a particular property.

Liens are of three types, i.e.1. Salvage2. Improvement and3. Debtor & Creditor Liens.

Salvage liensThese arise when a person incurs necessary expenses on the property of another person whether as a result of contract or not (for the amount of such expenses).

Improvement liensThese arise when a person incurs useful expenses on the property of another, whether as a result of a contract or not (equal to the amount by which the property has been enhanced).

Debtor & Creditor LiensArise when a person incurs expenses on the property of another person, under a contract with the owner of the property. They are not real liens (because the creditor does not have a real right). His right of retention is good only against his debtor.


CONVEYANCING

The concept of conveyancing has been briefly discussed in the preceding sections.It basically deals with the transfer of rights in land.The Deeds Registries Office administers all documents relating to the alienation of land. The Deeds Registry is the only Government department dealing with land ownership. It has five main functions, which are: an office of public records since 1890 has the official records of alienated land records of transactions where land is the security for an obligation records of notarial deeds and other subsidiary documents as provided under Section 5 of the

Deeds Registries act collects stamp duty and registration fees

The legal frameworkThe Deeds Registry works on land within the limits stipulated in the following Acts:1. Deeds Registries act - provides for the establishment of deed registries. Included is the registration

of land and procedures linked to it, transfer of land, and cancellation of title deeds, substitution of title deeds, bonds and other rights in immovable property.

2. Administration of Estate Act - gives the law governing the administration of estates of deceased persons, minors, and mentally disordered or defective persons absent from Zimbabwe.

3. Land Acquisition Act - the act dealing with the acquisition of land. It states the procedures of acquiring land and payment of compensation. The Registrar of Deeds should be notified of acquisition and submit the diagram showing the extent of the land acquired.

4. Land Survey Act - deals with the deduction of property (in this case land).

There so many other acts which are important to refer to when dealing with the transfer of rights in immovable property. These can be looked at outside class.

As has been mentioned before, the deed of grant always precedes all other types of deeds. A deed of grant has annexed thereto a diagram of the land to which it pertains (unless where there is a dispensation certificate) and also contains conditions subject to which the land was granted. In subsequent transfers or conveyances, these are incorporated by reference and not repeated verbatim. The land can also be subject to "special conditions" which are imposed by virtue of the statutory requirements such as the Town Planning Authority and mostly concern the use of the land and less frequently by the owner in favour of a third person or other land. It is therefore clear that certainty and clarity as to the ownership of land and rights in land are of utmost importance, not only to the owner, but possibly more so to the commercial and industrial sectors, where large amounts of capital may turn on these aspects.Deed of Grants, Deed of Transfers and all forms of certificates of Title are collectively referred to as Title Deeds, while the title deed with the diagram annexed is referred to as the Diagram Deed and that under which the owner holds the land is referred to as the Current or "Holding Deed". This may also be the diagram deed.

A land register folio is opened for each piece of land, which has been granted and surveyed, and this register folio will reflect all dealings therein in summarised form including the deduction of subdivisions.All Deed of Transfers or Certificates of title subsequent to the Deed of Grant must be prepared by a legal practitioner, so should, mortgage bonds, servitudes and leases.Once a transaction relating to a person has been registered in the Deeds Office, a personal register card is opened for him/her on which is entered the full names, date of birth and in the case of married women, their marital status. Normally a woman married in community of property, cannot acquire immovable property or deal therewith as there is a community of joint estate, which is administered by the husband, but there are exceptions, for example, the husband can give consent or if there is an


antenuptial contract. All dealings in the Deeds Office by that person are then noted on his card, including any attachments.

Transfers from one person to another and mortgage bonds must be prepared and lodged by legal practitioners for registration. They are examined for competency to do the proposed act and any errors, omissions and irregularities might be a bar to transfer or mortgage and if in order are registered. Once the transaction is registered, particulars are entered in the land register folio and personal register card and one copy returned to the legal practitioner. From the land register folio, anyone can establish the whole history of a piece of land from time to time since it came into existence as a separate entity to the present day including such particulars as area, price paid, previous owner or owners and whether it is subject to a mortgage and the amount thereof. An examination of the holding deed will give a more detailed description with reference to previous title deeds and repeat all special conditions to which the land is subject or entitled.

Now lets take a closer look at the various types of title deeds.Before that we will look at some important definitions. Make sure you understand these.

Certify - to formally declare by signing a document that it is in order. Affidavit - is a written statement under oath signed before a witness. Such documents are normally

sworn before a commissioner of oaths appointed by the Government. Power of Attorney - the instrument or document by which the authority or power to act for

another person is conferred or guaranteed. Attest - to confirm as accurate, true or genuine i.e. to certify or testify by signature or oath. To

bear witness. Execute - to make legal or valid by fulfilling all requirements of law - to do or carry out. Caveat - a formal notification to a court or official not to take a certain step until the notifier has

been heard. A caution or a notice to beware. Register - to record officially or formally by making entries in writing in terms of a statute or

enactment that some transaction has taken place. Thus a deed of transfer is registered in a deeds registry to record that a change of ownership has become effective.

Brief notes on the types of deeds

1. Deed of Grant

Purpose To transfer ownership of a piece of land to which no title exists from the state to a person.

Contents The grantee's name, a description of the land including name, district, diagram number and the area. The diagram of the land and conditions to which the land is subject.

Executed By someone authorised to do so on behalf of the President

Registered By the Registrar of Deeds after the Grant has taken place

2. Deed of Transfer

Purpose To transfer ownership of immovable property from one pers8i’;on to another

Contents The Conveyancer's name and reference to the power of attorney authorising the conveyancer to act on behalf of the transferor. The seller or transferor's name; the Purchaser or transferee's name, the description of the land as set out in the deed of grant, a reference to the title deed to which the diagram of the property is annexed, a reference to the diagram number and the


transferor's title deed number, any special conditions, any real rights or servitudes that the property may enjoy, the price paid for the property.

Executed By a Conveyancer for the transferor

Attested By the Registrar of Deeds and registered simultaneously

3. Deed of transfer of a portion of a piece of land

Purpose To transfer ownership of a portion of a registered property from one person to another

Contents As for a deed of transfer but there is always a diagram annexed

Executed By a Conveyancer for the transferor

Attested By Registrar of Deeds and registered simultaneously

4. Certificate of State title

Purpose To allow the state to acquire title to unalienated state land so that a real right can be registered against the title

Contents Statement re Minister applying for the issue of the certificate; Description of land, district, diagram number and area. Always has a diagram annexed

Executed By the Registrar of Deeds. Registered simultaneously. Not attested

5. Certificate of Registered title of a portion of a piece of land

Purpose To allow the owner of a piece of land to acquire separate title to a portion of the land he owns

Contents statement that the owner owns the whole piece of land with a full description. Full description of portion of land with reference to district, diagram number and area. Will always have a diagram annexed


6. Certificate of Consolidated Title

Purpose To enable the owner of two or more abutting pieces of land in the same Deeds Registry area to acquire title to the land as one piece

Contents Issued on application by the owner. Contains a full description of each of the components, including a reference to diagram number; current deed and any special conditions that may apply. Full description of the consolidated piece of land and will always have a diagram annexed


7. Notarial Deed

Purpose To register a real right in favour of a person or body corporate against a piece of land, e.g. a servitude or undivided shares (sectional title)


Contents A full description of the land, numbers and dates of title deeds, full names of grantor and where possible grantee. It may or may not have a diagram annexed to the deed. If there is no diagram the servitude is usually one that is capable of being clearly defined verbally

Executed By the owner of land encumbered and owner of land in favour of which or person in whose favour the servitude is being created (this is not necessary if the servitude is in favour of the public)

Attested By a Notary Public

Study these statutes and analyse their purpose as well as their relevance to the study of land law.

Land Surveyors Act Land Surveyors Act Land Acquisition Act Deeds Registries Act Regional Town and Country Planning Act


sv420 - msu.ac.z law1.docx · web viewdefinitions of this sort fall within the school of...

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