DIRECTORATE DEEDS REGISTRATION SUB-SECTOR PROGRAMME. Title security of tenure to real property. Description

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1 DIRECTORATE DEEDS REGISTRATION SUB-SECTOR PROGRAMME Title security of tenure to real property Description Throughout the world and from early times, countries have endeavoured to have a system of land registration. This was done in order to regulate and record rights in land. The land registration system deals with the acquisition, loss and transfer of land, limited rights in land, as well as State land and its administration. In modern times it has been a global trend that various laws dealing with land and especially its use, were subsequently developed by Government. This has also been the case in Namibia. Land consists preliminary of:- 1)The soil, 2)Geological components, such as minerals on the surface of the land and also below it, and 3)Everything attached to the soil by natural means, such as trees, plants and growing crops. In Namibia land, (or more specifically a surveyed piece of land), is in law classified as a thing in respect of which persons may hold certain rights, the most important right being the right to ownership of the land. It is however important to understand that certain land cannot be held in private ownership. Land belonging to the state and held for the benefit of all its inhabitants or the general public, falls within the last-mentioned category. This includes the seashore, public and national roads, national parks and public rivers. In a legal sense, the most important classification of land is that it is immovable property, it being the primary type of immovable property. Immovable property is defined, in broad terms, as land and everything that is naturally attached to it, as well as artificial additions of a permanent nature, such as buildings. Rights in immovable property are also classified as being immovable for certain purposes, thus the right which a bondholder holds over the immovable property secured by the mortgage bond, is classified as being immovable.

2 Principles of deeds registration in Namibia. Deeds It is a written or printed instrument effecting legal disposition and bearing disposer s signature and seal of office. Freehold Tenure by virtue of ownership. Immovable property In broad terms, immovable property is land and everything that is naturally attached to it, as well as man-made structures of a permanent nature, such as buildings. Land In Namibia, the law defines land, particularly once it has been surveyed, as a thing. This implies that people have rights that relate to it, one of which is the right to own it. However, this right does not apply to all land, e.g. a person cannot own land designated by the state as a National Park. Ownership Ownership is the only real right to a thing. All other real rights to things owned by other persons. Ownership may be defined as the most comprehensive real right that confers upon the holder complete and absolute control over a thing, therefore it comprises, in principle, complete and absolute control over the land. Registration Registration is the method by which ownership passes from the transferor (old owner) to the transferee (new owner) and it takes place when a document, serving as a symbol of ownership, is signed by a state official (the registrar of deeds). State land The State is the owner of all land not previously held under a title deed (called unalienated State land). Rights in Land The classification of land as immovable property has two important consequences: Firstly, the land together with its natural and artificial attachments is regarded as a single immovable object and the land cannot therefore be separately disposed of from the attachments.

3 Secondly, it means that all legal principles applicable to immovable property also apply to land. Thus, the requirements for the acquisition and transfer of rights in immovables also apply to land. As pointed out, a surveyed piece of land in Namibia is a thing. If a person holds a right over land that entitles him or her to deal directly with the land, such a right is termed as a real right. A real right is regarded as absolute in the sense that it is effective and can be enforced against the world at large. The owner of a piece of land in Namibia can therefore enforce his or her right of ownership against anyone in the world. The importance of the right of ownership is reflected in the Namibian Constitution which states that it is a fundamental right that all persons shall have a right in Namibia to acquire, own and dispose of all forms of immovable property (Article 16 of the Namibian Constitution). Ownership and other rights Real rights are further divided into ownership and other real rights. Ownership is the only right to one s own thing, whereas all other real rights are rights to things owned by other persons. Ownership may be defined as the most comprehensive real right that confers upon the holder complete and absolute control over a thing. In modern times, this control has been substantially limited by the common law and by various acts and regulations. Other real rights are limited: and confer upon the holder only certain defined rights and capacities over a thing which is owned by another. Examples of limited real rights are servitudes, mortgages and leases. Land tenure Land can be held on a permanent basis by virtue of one of two forms of land tenure: a) Ownership (freehold), and b) Leasehold. The only current permanent land tenure system in Namibia is tenure by virtue of ownership, the so-called freehold tenure. It is the criticism against freehold tenure as being unable to cater for the needs of all Namibians, which prompted the Ministry of Lands and Resettlement to look at alternative land tenure systems in Namibia. A proposed three-tier system was advanced to address this matter and it is this more flexible land tenure system which necessitated the training and appointment of land measurers as part of the process of land reform. Ownership of land: its acquisition, transfer and loss Ownership of land comprises, in principle, complete and absolute control over the land. The content of ownership is usually summarized as the capacity to possess, use, enjoy, dispose and destroy the land. The right of ownership includes everything that lies below the surface and all natural and artificial attachments. The right also exists in respect of the air above the land.

4 Ownership of land may be acquired by two methods: a) Original acquisition. Original acquisition comprises those methods where the owner establishes his or her right of ownership by independent means; the title to the land is not derived from a predecessor. Examples of original acquisition are prescription, accession and expropriation. b) Derivative acquisition. Derivative acquisition, on the other hand, is where ownership of the land is acquired from a predecessor in title, i.e. where ownership is transferred from one person to another. Ownership of land is transferred from one person to another by means of registration. This rule is confirmed in the provisions of the Deeds Registration Act, 47 of Registration is the method by which ownership passes from the transferor (old owner) to the transferee (new owner) and it takes place when a document, serving as a symbol of ownership, is signed by a state official (the registrar of deeds). Transfer of ownership of land in Namibia may take place only by registration of a deed of transfer or, in the case of state land, a deed of grant. The only exceptions to this rule are those which are specifically mentioned in the Deeds Registries Act, or provided for in any other law. Exceptions are where registration is not required for transfer of ownership from one person to another, namely marriage in community of property and insolvency. In the case of a marriage in community of property, each spouse acquires and undivided half share in everything owned by the other. Insolvency causes a transfer of all the property of the insolvent to the trustee. Registration is not required for the transfer in either case. Land registration systems As mentioned previously, registration is a method whereby ownership is transferred from one person to another. Land registration systems can be divided in either a positive or a negative registration system. In a positive system, the data recorded in the deeds office is guaranteed by the state. In contrast to this, a negative system does not guarantee that the data is in fact correct.

5 Sub-sector: Mission statement The Deeds Office in Windhoek was established in 1919 after the conquest of the territory by South African Forces. Prior to this, registration was done under the German system known as the Grundbuch-system, but this was converted to the South African system when South Africa became the mandatory power of the territory. South Africa consolidated its conveyancing laws in the Deeds Registries Act, 47 of The need arose in the then South West Africa to bring its laws in line with those in South Africa. By Act 3 of 1972 the Deeds Registries Act, 47 of 1937 was made applicable to the Windhoek Registry with effect form 1 June 1972 and the Deeds Registration Proclamation was repealed. The system has remained unchanged since the Independence of Namibia on 21 March Land registration in Namibia is controlled by legislation in the form mainly of the Deeds Registries Act and the Regulations thereunder. The Act states what types of transactions may be registered and it will be noticed that, in the main, these relate to real rights in land, that is, rights that owner has against the world in general. The Rehoboth-gebiet still has a different system of registration controlled by the Registration of Deeds in Rehoboth Act. Requirements for land registration in Namibia The Namibia system of land registration is impossible unless each registered unit of land is surveyed and represented on a diagram or general plan. Every deed of grant, transfer deed or certificate of title registered in the deeds office must refer to the diagram or general plan on which that piece of land is represented. It is thus apparent that registration of title to land originates in the survey of the unit of land to be registered. Only registered land surveyors are permitted to prepare diagrams and general plans. The survey of land units and the preparation of diagrams and general plans are governed by the Land Survey Act of 1993 and the regulations framed thereunder. The extent of the land unit as quoted in the title deed is obtained from the diagram or general plan. Transfer of ownership and other real rights in land is effected by registration. Transfer of ownership of land is generally registered by a deed of grant (in respect of state land) or a deed of transfer for transfer of the other land. Transfer of other real rights is registered by a notarial deed of cession. Section 16 of the Deeds Registries Act, which can be regarded as the cornerstone of the Act, state inter alia: Save as otherwise provided in this act or in ay other law the ownership of land may be conveyed from one person to another only be means of a deed of transfer executed or attested by the Registrar, and other real rights in land may be conveyed from one person to another only by means of a deed of cession and attested by a notary public and registered by the Registrar.

6 Registration in respect of land may only take place if the existing title deed to the land is lodged together with other documents required for registration. No transaction requiring registration may take place in respect of land to which there is no title deed. The only exception is unalienated state land, which is registered by means of a deed of grant to which a diagram of the land is attached. A register of all registered pieces of land is kept by the registrar. The registrar administers the registration process in terms of the common law, the Deeds Registries Act and other laws relating to conveyancing. Administration of the Deeds Registries Act The Deeds Registries Act established a deeds registry at Windhoek. The act makes provision for the appointment of a registrar of deeds who is responsible for administration of the deed registry system in Namibia. Conveyancers attend to the drafting, filing and execution of deeds in the deeds registry. Purpose of registration The objectives of registration are: To protect the rights registered. To give notice to the public of such protection; and To provide an easily accessible record which can be used when disputes arise. Goals, indicators and targets The Deeds Office has set itself the following objectives for the next five (5) years in order to realize its mission: To continue to implement the land tenure policy and its legislations. To facilitate land registration system (manual and digital), administration and management through policies and statues. To facilitate any other land tenure system Government may introduce (flexible land tenure) To facilitate the registration of all leaseholds both in the commercial and communal areas. Programme beneficiaries Potential beneficiaries include:- Ministry of Agriculture, Water and Forestry Ministry of Works and Transport Ministry of Regional, Local Government and Housing and Rural Development Ministry of Lands and Resettlement.