Property Ownership can be limited - Know your rights

Namibians have, according to our Constitution, the right to own property. Ownership was defined in the 1979 case, Gien v Gien, as follows:

“The absolute entitlements of an owner exist within the boundaries of the law. The restrictions can emerge from either objective law or from restrictions placed upon it by the rights of others. For this reason, no owner ever has the unlimited right to exercise his entitlement in absolute freedom and in his own discretion.”

When we purchase a property, we assume that we have unlimited rights and that we may use, enjoy and dispose of the property at our own discretion. Think again. Although certain persons (natural or juristic) are not the owner of a property, they may have rights in respect of a property owned by you. These are called limited real rights.

Owners may not dispose of properties without addressing the limited real rights in favour of others over their property. This could have an impact on time-lines when it comes to transfer processes.

Servitudes
A usufruct is the well-known example of a personal servitude, and power-lines running through a property is an example of a praedial servitude. Such holders of a servitude do not have full rights over the property but may use it as set out in the agreement. This diminishes the owner of the property’s right over the property.

Co-ownership
More than one person may own property and have an undivided share in that property. The shares need not be equal. Two or more persons have the right to use and enjoy the same property simultaneously. Where the parties purchase ownership shares, they will each have their title stipulating their specific share. Mutual consent is needed to use, enjoy and dispose of the property.

Mortgage Bonds
Mortgage bonds also limit the right to ownership. When there is a bond over the property, the bond holder must consent to every transaction or registration regarding the property, even a correction of a name.

Interdict
Courts may make an interdict whereby a creditor attaches a property if debts have not been settled. No property can be sold until the deputy sheriff has been instructed to uplift the interdict. He will only do so when there is a letter of undertaking or a guarantee that the outstanding debts will be settled.

Property owners should be up to date on any conditions registered over their property, either in the title deed, or by way of agreement through a notarial deed or by way of a mortgage bond. Your rights in respect of the property may be limited.