SV420 Land Law
SV420 Land Law
SV420 Land 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.
In 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
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.
1.Statutes
A statute is more familiarly known as an Act of Parliament.
This is law created by legislative bodies most notable of these is obviously parliament
but other subsidiary bodies also exist, such town councils, urban and rural councils. In
certain cases Ministers are also empowered by parliamentary laws to create subsidiary
legislation. All subsidiary law making bodies can only create regulations regarding
matters delegated to them by parliament. In other words 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. Custom
This is of little importance now although it used to be a substantive source. Of course it
is still of importance as regards to some aspects of international law where the
behaviour of states is deemed to create international legal norms.
3. Legal Writings
This 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 Law
This 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.
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 the 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
Criminal Law
It 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 Law
Is that body of rules which determines the constitution of the sovereign government,
its structure, powers, and functions.
Administrative Law
Is 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.
Private Law
This 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 Obligations
This 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 Law
Is 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.
International Law
There 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.
Land Law
Deals 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 and
iv. The machinery of land law
CONVEYANCING
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."
Legal Rights
A 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 "right 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
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 and
ii. 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
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 :
b) Succession
A 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.
d) Contract
Real 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 contract
iii. The agreement must be possible of performance physically and must be legally
permissible
iv. The contract must be in accordance with the appropriate formalities for the type
of contract intended.
e) Statute
It 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) Accession
Accession 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.
Bonds
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.
What is a servitude?
Praedal Servitude
In 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 Servitudes
A 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 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
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 tacitly conferred by law on a person who is 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 impensae necessariae or impansae utiles, he obtains a real right in it.
Liens are of this type are known as "real liens", to distinguish them from " debtor
and creditor" liens, where the creditor has no real right.
Classes of Expenses
Salvage liens
These 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).
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
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. 9
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.
1. Deed of Grant
Registered By the Registrar of Deeds after the Grant has taken place
2. Deed of Transfer
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
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
7. Notarial Deed
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
Study these statutes and analyse their purpose as well as their relevance to the
study of land law.