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ACQUISITION OF IMMOVABLE PROPERTY THROUGH PRESCRIPTION IN SOUTH AFRICAN LAW – A CONCISE OVERVIEW

Aug 31, 2024

Acquisitive prescription is a legal concept that plays an important role in property law in South Africa. It is a legal mechanism by which ownership of property can be acquired through continuous and uninterrupted possession over a specified period. This creates legal certainty and stability in property rights, ensuring that long-standing possession is ultimately converted to ownership.

REQUIREMENTS

Acquiring ownership over immovable property by prescription under South African Law is regulated by the Prescription Act of 1969. It generally provides that if a person has possessed a property openly, as if he/she were the owner thereof, for an uninterrupted period of (30) thirty years, he/she has acquired ownership thereof by prescription. To successfully claim ownership through acquisitive prescription, certain requirements must be met:

  • Possession: The claimant must have actual, continuous, peaceful and undisturbed possession of the property. Possession refers to physical control and utilization of the property as an owner would.
  • Period: The claimant must possess the property for a specific period. In South Africa, the prescription period for immovable property is 30 (thirty) years.
  • Good faith: The possession must be in good faith, meaning that the claimant genuinely believes they are the rightful owner of the property and are unaware of any defects in their title.
  • No interruption: The possession must be uninterrupted for the required period. Any interruption or interference in the possession may reset the prescription period.

Acquisitive prescription in respect of State and Municipal owned land is regulated by the State Land Disposal Act 48 of 1961 and the Prescription (Local Authorities) Ordinance No 16 of 1964 which prohibits claims with effect from a specified date. Claimants or their predecessors-in-title therefore must have exercised possession of property openly, as if the owner thereof, for an uninterrupted period of 30 years prior to 28 June 1971 (for State land) or 7 August 1974 (for Municipal land).

EFFECT

Once a claimant has successfully fulfilled the requirements for acquisitive prescription, they become the legal owner of the land or portion of land in question. They are entitled to take transfer of the land from the erstwhile registered owner, whose rights to the property are simultaneously extinguished.

It is important to note that that the circumstances surrounding each individual claim or potential claim to immovable property through prescription will be unique. It is therefore vital to consult with legal professionals for specific advice and guidance on the application of acquisitive prescription in individual cases.

 

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