Tag: Property Rights

REAL RIGHTS IN A MATRIMONIAL PROPERTY

Posted by nnlaw on October 12, 2022

CASE ANALYSIS – JANE MUSINDO & ANOR VERSUS LEOCADIA KEREKE (NEE MUROIWA) HMA 32/22

This was recently heard appeal from the judgement handed down in the Magistrates Court in Bikita. The case before the court was one for the eviction of a “small house” (1^st Appellant) by the 2^nd Respondent’s wife “main house”. The facts of the case shall be discussed briefly below.

The 2^nd Appellant and Respondent were married in terms of the Marriage Act [Chapter 5:11] formerly known as the [Chapter 37] marriage which provided for one man and one wife in the year 1966. Their union was blessed with children who have all attained majority status. The 2^nd Appellant during the course of his marriage had been unfaithful in the union for a number of times.

The Appellants were involved in an open adulterous affair and sometime in 2015, 1^st Appellant moved into the 2^nd Appellants and Respondents matrimonial homestead called Kureke homestead were she erected a structure of her own and she lived there with the 2^nd Respondent. From the onset of this arrangement no abuse or bad blood was alleged or spoken of – however the Respondent alleges that at some point there was abuse became unbearable to the extent that she, on numerous occasions, had to leave her home to live with her relatives.

The Respondent after amendment of her summons in the Magistrates Court sought

The eviction of the 1^st Appellant from Kereke homestead and
An interdict restraining 1^st appellant from continuing with her adulterous relationship with the 2^nd

The 1^ST Appellant raised the points that the Respondent had no locus standi in judicio (legal standing) as well as that the wife had no real rights in respect of the property rather she had personal rights which were enforceable against her husband. The Respondent highlighted that by virtue of her marriage to the 2^nd Appellant she had the right to institute the action. The court accepted the Respondent’s position and granted the order as sought above.

The appellants aggrieved by the decision of the court approached the High Court. On appeal the 1^st appellant averred that she was married to the 2^nd appellant despite him being married to the Respondent. She further highlighted that she constructed a house on the premises and stayed there by virtue of the invitation extended to her by the 2^nd Appellant who was opposed to her eviction from the homestead as he considered her (1^st Appellant) his wife. She further denied abusing the Respondent in any manner. The appellants’ grounds of appeal were as follows:

Grounds of Appeal

The court a quo erred in granting an order for eviction of the 1^st appellant from the Kereke homestead when the respondent had dismally failed to establish locus standi for eviction proceedings over an immovable property that is not registered in her name.
The learned magistrate misdirected himself by delving into issues of adultery and sanctity of marriages solemnised in terms of [Chapter 5:11] which issues had not been placed before the court for determination. The court went on a frolic of its own and failed to make a determination on the issues which had been placed before it.
The court a quo erred by failing to appreciate that the 1^st appellant should not be evicted from the homestead of the 2^nd appellant as she was residing there under his consent.

With regard to the first ground of appeal the court stated that the court had erred by looking at the issues of adultery and sanctity of marriage as they were not the matters that were set to be determined by the honourable court.

With the second point of appeal regarding locus standi the court cited the case of Maponga v Maponga & others 2004 (1) ZLR 63 (H) at 68D-E MAKARAU J held;

“It would appear to me in summary that the status of a wife does not grant her much in terms of rights to the immovable property that belongs to her husband. She only has limited rights to the matrimonial home that she and her husband set up. Those rights are personal against the husband and can be defeated by the husband providing her with alternative suitable accommodation or the means to acquire one. The husband can literally sell the roof from above her head if he does so to a third party who has no notice of the wife’s claim.”

The Respondent (wife in this instance) has limited rights in respect of the Kureka homestead despite it being the matrimonial home as she has personal rights, which can only be exercised against her husband. Further the first Appellant being there by virtue of an invitation extended by the 2^nd Appellant who has real rights in respect of the property is entitled to continue living at the homestead. The court cited the below listed constitutional provisions when highlighting the need for the alignment of property laws with the provisions of the Constitution;

25 Protection of the family

The State and all institutions and agencies of government at every level must protect and foster the institution of the family and in particular must endeavour, within the limits of the resources available to them, to adopt measures for—

(a) the provision of care and assistance to mothers, fathers and other family members who have charge of children; and

(b) the prevention of domestic violence.

26 Marriage

The State must take appropriate measures to ensure that—

56 Equality and non-discrimination

All persons are equal before the law and have the right to equal protection and benefit of the law

The Court in addressing the position of locus standi cited the constitutional provisions above and how they should align with the property laws, whilst emphasising that they are trumped by property rights. It was then found that the court erred in its decision as the Respondent failed to satisfy the foundation of her right to institute eviction proceedings (real rights in the property).

In conclusion the court upheld the appeal, preventing the 1^st Appellant from being evicted, and the Respondent being ordered to pay the 1^st Appellant’s costs on an attorney client scale.

This article is for general information purposes only – seek the advice of a Lawyer

Double Sales – Property

Posted by nnlaw on July 26, 2022 with 0 Comment

DOUBLE SALES

Have you ever found yourself in a situation where you find out that a property that you have purchased was sold to someone else as well? If the answer to this question is Yes, then this article is for you.

The concept of double sales came about as a result of the greedy and dishonest nature that individuals possess. As a result, citizens are duped / defrauded of their hard earned money and are conned into purchasing properties that may have already been sold to someone else. Double sales may be defined as the corrupt or rather fraudulent sale of property by one (the seller) to at least two different parties (the purchasers).

Members of the public are strongly advised by the to conduct a Deeds search at the Deeds Registry in either Bulawayo or Harare depending on where the property that one intends to purchase is located, prior to concluding the sale. This will save a lot of clients from possibly falling victim to these criminals that sell the same property more than once.

The Deeds search provides following information;

That the Deed actually exists and is registered in the system (that it is not a fake Title deed)
The details of the owner such as their name, date of birth and Identity number.
Extent (size) of the property
Where the property is situated (accurate property description)
Conditions imposed on the property
Date of registration
Whether the property has been pledged as security (collateral) for a loan

After having done the initial Deeds search one can then trace all prior Deeds and previous owners of the property, leading up to the current Title Deed.

The above mentioned measure is a precautionary one but in the event that one has already succumbed to such a scam then they may resort to the Courts for recourse. The remedy that is available to parties is making a claim in the Courts for specific performance for one party and a claim for damages for the other party. A criminal case may also be pursued against the seller in such a case. One may note that in the case of the two purchasers the Courts tend to favour the first buyer as opposed to the second one especially where transfer has not been effected, this stance was highlighted in the decided case of Guga v Moyo & Ors where it was held that;

“the basic rule in double sales where transfer has not been passed to either party is that the first purchaser should succeed. The first in time is the stronger in law. The second purchaser is left with a claim for damages from the seller, which is usually small comfort. But the rule applies only in the absence of special circumstances affecting the balance of equities”.

There are instances where the second buyer was aware of the first sale and in such cases the courts exercise no leniency towards the second buyer as they willingly entered into a fraudulent sale however such a party can lay a claim against the seller for funds paid.

There are some exceptions to the position that the first purchaser is given preference over the second buyer and the circumstances have been laid out in case law. The court tends to look at the balance of equity and as a result of such there are instances where the second purchaser may be awarded the property instead of the first purchaser such as that the second purchaser was not aware of the first sale and/or the second purchaser has made improvements to the property and/or transfer of the property has been done in favour of the second purchaser. In such instances the Court reserves the right to make a ruling that the property be awarded to the second purchaser. The Court exercises its discretion in matters of such a nature.

In the event that you have been a victim of such a circumstance please do not hesitate to engage our team of legal practitioners that is ready to assist.

This article is for general information purposes only-seek the professional legal advice.

Property Rights In Zimbabwe

Posted by nnlaw on March 18, 2022 with 0 Comment

In Zimbabwe every person has the right to own property as evidenced in terms of Section 71(2) of the Constitution which states that “every person has the right, in any part of Zimbabwe to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually or in association with others”.

The Constitution further goes on to uphold the property rights of the people in terms of Section 74 which reads “no person may be evicted from their home, or have their home demolished, without an order of Court made after considering all the relevant circumstances”.

Did you know that property rights in Zimbabwe are not absolute?

Property rights in Zimbabwe are not absolute as provided for in Section 71(3) of the Constitution. This provision justifies the deprivation of property rights under the grounds that the deprivation is in terms of law of general application; is necessary for public safety, public order, public interest, defense or so as to use the property for the benefit of the community. The case of Zimbabwe Tobacco Company v Minister of Lands & Rural Resettlement is a good illustration of land being compulsorily acquired for public interest as the land was acquired to facilitate urban development and combat overpopulation.

In terms of Section 72 of the Constitution it is highlighted that all agricultural land vests in the state meaning not all agricultural land can be privately owned. Compensation for land that has be reclaimed by the state is given only in instances where proof is shown of improvements having been effected on the land.. Section 72 (3)(b) “no person may apply to court for the determination of any question relating to compensation, except for compensation for improvements effected on the land before its acquisition, and no court may entertain any such application” hence highlighting that property rights are not absolute and aggrieved parties have no recourse in the courts, save for the one exceotion.

The principle of eminent domain, is the inherent powers of a government entity to take privately owned property, especially land, and convert it for public use and enjoyment. In the case of Davies & Ors v Minister of Agricultural and Water Development, It was held that the state has the power to compulsorily acquire the land and regulate it through the principle of omne majus continent in se minus. Another example of the practical application of the eminent domain principle is the issue of the Chisumbanje Ethanol Project where the villagers of that area were recently displaced in a bid to set up a local ethanol plant in order to reduce the importation of ethanol, thereby aiding Zimbabwe’s economy. While one has the Constitutional rights to own property and land throughout Zimbabwe, this right is not absolute and can be limited by the State’s exercise of its eminent domain rights.