Shaun Evert Gariseb and Vetu Uanivi
Every year we are confronted with the painful sight of families evicted from what they call “family houses”, but many don’t wonder why people have disputes in this matter.
Is it blatant ignorance of what to do and what not to do or is it property fraud?
This occurrence is experienced in Katutura and older areas of other towns.
Property title fraud occurs when a property is transferred to another party without the true owner’s knowledge. Typically, this is a result of an imposter pretending to own the property and deceiving the other parties involved in the transaction or that he has authority to sell such property via mandate or as an executor on behalf of the deceased.
Our Courts have held that the land registration system in Namibia is based on an abstract system. In terms of this abstract theory, the requirements for passing ownership are twofold. The first requirement is the ‘underlying agreement’ which in the case of immovable property is perfected by registration of the transfer in the deeds office. The second requirement is a ‘real agreement’. The essential element of the real agreement is an intention on the part of the transferor of immovable to transfer ownership, coupled with a corresponding intention of the transferee to become the owner of the property. According to this abstract theory, a defect in the underlying agreement does not prevent a valid transfer. In other words, ownership may pass despite the underlying sale being invalid.
However, ownership will not pass if there is a defect in the real agreement. In other words, to transfer ownership, the owner must have the intention to pass ownership. If there was never any intention to transfer ownership, then ownership does not pass. Non-compliance with a statutory requirement may render a contract unenforceable.
Our courts have further affirmed the principle that ownership will not pass despite registration of transfer, where the underlying transaction was tainted by fraud, or where the essential requirements of the “real agreement” viz and intention on the part of the transferor to transfer ownership of the property, and on the part of the transferee to become the owner thereof, were not met.
Conveyancers and the Registrar of the Deeds office can be victims of property fraud if proper due diligence and identity checks are not done. Syndicates thus can misrepresent a Conveyancer to transfer properties into his name. This loophole is not only a Namibian problem but a global one. In South Africa property hijacking via registration is on the increase compared to hijacking from tenants. In the UK, the Appeal Court in Dreamvar (UK) Ltd v Mischcon de Reya and another [2018] EWCA Civ 1082, held (amongst other things) that the solicitors who unwittingly acted for the imposter should be liable to the innocent purchaser. This is on the basis that the seller’s solicitors are best placed to verify the identity of their client.
As things stand the only way to avoid and curb situations of this ilk is by
• Raising awareness, as most of these victims, are illiterate and vulnerable to being hoodwinked in signing deeds of donations, renunciation forms, power of attorneys, and other documents.
In most cases, people are lied to that the documents are for the settling of municipal bills, or to renovate the house, and the unawares sign out of trust, as these are their relatives who have their appetite and greed triggered by other people with ill intentions.
•People must not sign documents they don’t understand, even if it’s from their favorite siblings.
•Check the status of your deed every year.
• People must write testaments/wills to avoid future misunderstandings amongst those they leave behind.
• Those with similar modus operandi in preying on the vulnerable can only be stood up against if we don’t allow them legal standing.
• Elders who donate houses to responsible siblings must make use of the special conditions they can write down, saying it verbally is not enough.
The most recent official Estimates of Namibia’s housing backlog from the National Development Plan ( NDP4) review is put at 300 000. Over the years various housing initiatives have been set up to meet the urgent and increasing demand for living space, and the increasing nature of evictions don’t bode well against these efforts.
The writers hereof wish to note that property theft, by greedy businessmen and shameless & desperate relatives who are lured with peanuts sometimes to deceive their relatives, represents the very essence of organized crime.
Karma has its day…
* Shaun Evert Gariseb (Social Activist/Writer) and Vetu Uanivi (Practicing Attorney)
