The ManicaPost
Trust Maanda
Legal Position
A PERSON can acquire ownership of property belonging to another person through a process called acquisitive prescription.
Acquisitive prescription is a method of acquiring property, and is a continuous process by which possession by one person of another’s property is for a continuous and uninterrupted period of 30 years.
That possession should be by exercise of physical control of the property with the intention of an owner.
It is the process of acquiring ownership of property as a result of the passage of time.
Where a person has possessed land openly, peaceably and without judicial interruption, that person may by acquisitive prescription, acquire title to the property.
It is a presumption of abandonment by the owner.
In order to acquire the property by prescription, that possession of another’s property must be done openly and as if the person possessing was the owner.
The possession must be with an intention to acquire ownership.
The possession of the property must be adverse to the owner.
This means the possessor must not be recognising the title of the owner.
The possessor should not be in a lease or other agreement with the owner.
He or she must behave as an owner would and not pay rent.
If the possessor acknowledges the rights of the owner, possession by the possessor ceases to be adverse to the owner’s ownership of the property.
An acknowledgement of the owner’s right when the true owner makes claim to the property amounts to an interruption of possession. Possession must be without force, without secrecy, without permission.
In Zimbabwe, the Prescription Act (Chapter 8:11) provides in Section 4 that a person shall become the owner of a thing which he or she possessed openly and as if he or she was the owner of it for an uninterrupted period of 30 years.
The possession must be either by himself or by his predecessors in title for an uninterrupted period of thirty years.
It reads thus:
4 Acquisition of things by prescription
Subject to this Part and Part V, a person shall by prescription become the owner of a thing which he has possessed openly and as if he were the owner thereof for — (a) an uninterrupted period of thirty years; or (b) a period which, together with any periods for which such thing was so possessed by his predecessors in title, constitutes an uninterrupted period of 30 years.
Whether or not the possessor believes that he is the owner, as long as he held the property openly as if he were the owner for uninterrupted 30-year period, he acquires ownership.
Possession may be acquired and exercised by a person through his or her agent.
The reason for this is that penalties should be imposed on people who cause injury to the State by introducing an uncertainty as to ownership and endless multiplicity of lawsuits, through their negligence or carelessness about their own property and affairs.
Another underlying reason for prescription, besides penalising the owner for neglecting his property, is that it promotes public interest.
Owners will exercise greater care and the potential disputes regarding ownership will be minimised.
In the case of Msasa Lodge (Pvt) Ltd v Lightfoot 2000 (2) ZLR 1 (H), the judge commented as follows: “Any person who acquires full juristic possession, without force and peaceably, so openly and patently to the owner or another or both, and without recognizing the title of the owner becomes the true owner thereof after the passage of a period of 30 years.
The court also observed that the possessor seeking transfer on the basis of acquisitive prescription must show that its possession was adverse to the rights of the owner and that open possession was exercised without recognizing the title of the owner.”
Also, in the case of Ex parte Puppli 1975 (3) SA 461 (D) at 463, it was stated that: “The rationale of our law of acquisitive prescription is that an owner who negligently fails to protect his interests against a stranger in possession of his property should forfeit the property to the possessor.”
The conduct of abandoning one’s property and having it occupied or possessed for 30 years by another person, without him or her acknowledging your title, is indicative of an individual who has no interest in the property, in that the person remained passive while another enjoyed peaceful use of the property.
The owner’s right to the property will prescribe and ownership of it becomes vested in the possessor.
Our law expects those who have rights to ensure that they protect their rights?
The law helps those who are awake, and not those who are asleep?
An idle and slovenly owner may lose his property by prescription.
The law of acquisitive prescription is that an owner who negligently fails to protect his interests against a stranger will lose his property.
Trust Maanda is a legal practitioner and a partner at Maunga Maanda And Associates. He writes in his personal capacity. He can be contacted on +263 772432646 or [email protected].
