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Possessory title revisited -2


The Possessory Title Act is now seven years old. Is it solving the problems of giving paper title? Or causing anger? There are many persons who would point to this law as one of the worst pieces of legislation, but there are others who would commend it.{{more}}

Adverse possession

One of my colleagues has asked me to tell you most forcefully that you cannot get a possessory title solely because you have been paying the property tax, but as I advised in an earlier article, you must be in adverse possession for 12 years. Copies of the tax receipts, however, could help your case. It provides tangible evidence that you were performing one of the roles of an owner, in opposition to another, but it is not the decisive factor.

Paper title

Many of the applications for possessory title before the court involve family lands where there are no paper titles. They cannot administer the estate because there is no paper title and so they have to resort to possessory title. It is taken for granted that a family member is in adverse possession, but in reality, some one in the family some years ago bought the land, but did not register the purchase and the land has passed on from generation to generation without a paper title. I believe that land acquired in this manner should not have to go through the litmus test, as that in adverse possession, once there is agreement by family members. I still have my own reservations about possessory title, especially where people deliberately move in to a person’s house purporting to own it. There are some countries that do not have provisions for possessory title. For example, the laws in Canada do not provide for possessory title.

Final procedure

Last week, I raised the issue of possessory title, and this week I would spend some time on the end process. So you have made your application and posted your notices signed by the Registrar. You have waited for the time to elapse and the notices to reach others via two newspapers on two occasions. The notices were posted at the High Court Registry and at the Magistrate Courts in the district where the land is located. The notices were also served on the neighbours. Since there was no entry of appearance, you would have to file a certificate of non-appearance.

An affidavit showing the dates when the newspaper notices were posted must be filed at a cost of $15.00. The certificate of compliance with Section 7(b) of the Act must be signed by the Registrar and the District magistrate. A $5 stamp must be attached when these documents are filed. Thereafter, the judge hears the matter. Where all the documents are in order, the judge would pronounce the operative words “Possessory title to be issued in accordance with the Act.” After this, your lawyer would file an order that will be settled and perfected by the Registrar. A paper title is issued and the relevant registration fees paid. Stamp duty of 3% of the cost of the land must be paid before you can get the document.

Possessory title has evoked anger in many persons, because many feel that their inheritance should not be taken in this manner. Some feel that those who use lands belonging to others, obtain many benefits and should give it up to the rightful owners when the time comes, not own it. It is the law presently and as such, it should be respected but I think that this Act should undergo substantial changes if not repealed.

Ada Johnson is a solicitor and barrister-at-law.
E-mail address is: [email protected]