Ownership of housing and land

1. What is the difference between land/ housing and other property?

Land and housing is known as immovable property, whereas other property (such as a car, furniture, clothing, jewellery) is known as movable property.

There are strict rules that apply to ownership of immovable property. These rules are different to those that apply to ownership of movable property or other assets (bank savings, pension, investments etc.). The same applies to changing of ownership. If you pay cash for clothing which is handed to you over the counter it immediately becomes your property. It is not so easy with housing and land.

2. Who is the owner of a specific property (house/ land)?

The owner is the person whose name appears on the Title Deed of the property (also called a Deed of Transfer). Ownership is registered at the Deeds Office in Cape Town. If title is not properly registered then you are not the owner.

3. How do you prove that you are the owner of a property?

The Title Deed is absolute proof.

If you do not have the title deed then it is possible to obtain a Deeds Office printout which states who the owner of the property is (e.g. through Windeed). This you can obtain at Makana Municipality, High Street, Grahamstown (Tel: 046 637 0428). You will need to take with you:

• A full description of the property (Erf number and address).

• The amount of R86 to be paid to Makana finance department for the printout.

4. What if someone else has the Title Deed for your property?

The owner is NOT the person who has physical possession of the Title Deed – what matters is the NAME on the title deed.

The holder of title to a property (the lawful owner, whose name is on the Title Deed) is also the owner of the Title Deed itself (the physical document). S/he (the owner) is entitled to claim possession of the Title Deed from anyone else who has it, as that other person has no right to have the Title Deed, making his/her possession of the Title Deed unlawful.

The only exception to this is where the owner has borrowed money from a bank to pay for the property, in which case the Title Deed is retained by the bank (as security for the debt).

5. What if you occupy the property, and you (and your

with issues relating to land and housing ‒ more than nine people per month. It is for this reason that the Law Clinic seeks to empower people with a better understanding of these laws and their legal rights to enable them to better manage their affairs in relation to land and housing.

The Rhodes University Law Clinic strives to improve access to justice through the provision of free legal services to underprivileged people in most areas of law.

family) have done so for many years/ decades?

The fact that you occupy the property does not give you rights of ownership to the property, no matter how long you (or your family) have been in occupation. Again, all that matters is whose name appears on the Title Deed.

Likewise, someone who is not the owner is not entitled to let the property out to anyone else and to keep any rent paid. This is unlawful.

This applies even in the case of legal occupation (e.g. in terms of a lease agreement), which gives you the right of occupation (not the right of ownership, which is a different kind of right). The owner and the lawful occupier can be two different people (e.g. in a lease situation).

This applies also in the case of illegal occupation of a property, in which case the owner has the right to evict the occupant.

A possible exception to this is the case of acquisitive prescription (in terms of the Prescription Act), which can give an occupier the right to ownership after 30 years of uninterrupted occupation of the property (but only after this is enforced through a High Court order). This can be difficult and expensive to prove.

So, for example, if Vuyo leaves her vacant piece of land and goes to live somewhere else, and Andile moves onto the land and builds a house on it:

• Andile does not automatically become the owner of the land. In fact, the house built on the land accedes to the land, such that the owner of the land (Vuyo) becomes the owner of the house.

• However, if Andile lives on the land for an uninterrupted period of 30 years or more, with no attempt by Vuyo to claim it back, Andile can bring an application in the High Court for the property to become his. Prof Jonathan Campbell and Mr Ndumiso Khumalo (Rhodes University Law Clinic)