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Possessory Title 3

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Filing of documents for possessory title has already begun at the Possessory title unit in the High Court in accordance with Possessory Title Act, No 38 of 2004. You may have already seen a few notices in the newspapers. The notices that the Act requires must be done on the prescribed Form 2 and have to be posted two months apart.

Opposing the application

The notices require personal appearance by any person who has an interest, his agent or his lawyer. More than one person could oppose the application. In entering an appearance, the interested person must file the prescribed Form 3 and a written claim within 21 days of the appearance. After the documents are filed a copy of each must be served on the applicant.{{more}}

If no one opposes the application, the Registrar of the High Court will issue a certificate of non-appearance and a date will be fixed for the matter to be heard before the judge. When a person enters an appearance, the Registrar must make the relevant entry and set a date for hearing.

Affidavit from persons without interest

Any person who has information pertaining to the property in question could file an affidavit even if he does not intend to claim or oppose the application. The affidavit should disclose matters to do with the possessory title and must be served on all the parties concerned.

Powers of the Court

If no appearance is made by an opposing party, the court can issue a default judgment. If an appearance is made but the written claim is not done within 21 days of the appearance, the court could hear the matter ex parte. It could also order costs to be paid by any of the parties in the matter. A certificate of possessory title would be awarded to the successful party. A party who is dissatisfied may appeal the judge’s order. The Registrar of the High Court must publish, in one newspaper, particulars of orders issued by the court.

When the party is awarded title, he could register a deed for possessory title at the Land Registry. The stamp duty for such deed is three percent of the value of the real estate.

Difference between the old and the new

The new system is fairer than the old system. The procedure is transparent and provides more safeguards. The publications in the newspaper provide notice to the whole world. If the true owner does not see the notice then a member of his family or a friend might see it and convey the information. The applicant has a duty to inform the immediate neighbours of the property about the application. The applicant must also leave notices at conspicuous places. There was not any publicity given to the registration of the old declaration. The new system gives a fair amount of time for the true owner if he is not the applicant, to oppose the application.

Fees

The applicant must pay for the notices published in the newspaper and the filing fees for all affidavits, notices and application. The filing fees are similar to other applications filed in court. The certificate of title carries $10.00 and the solicitor’s fee for an uncontested application is $1000.00.

Anyone who has a registered possessory title under the old system could apply to have it processed under the new system in pursuant to Section 28 of the Act. This would enable him to use the property as collateral for a loan.

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