Court grants farm ownership to tenant after 30 years of rent

IN a landmark ruling, the High Court of Zimbabwe has declared that a tenant can take ownership of a property in which one has been consistently paying for rates and rentals for a period of 30 years.

The development came to the fore when the High Court in Bulawayo awarded ownership to a tenant who leased a farm in Bubi District, Matebeleland North Province and consistently paid rates and rentals since 1986. The ruling, based on the country's Prescription Act, which states that individuals can gain ownership of a property they have rented and paid all rentals for 30 years, is likely to open legal floodgates by tenants, especially those who have leased a property for more than 30 years.

According to  court papers, Mr Ishmael Kusafunga Kaguru, as represented by his lawyers from Cheda and Cheda Associates, had taken to court the original owners of a farm that he was renting, Humble Estate Private Limited challenging the ownership of the property under the Prescription Act.

"Sometime in the year 1986, I took occupation and possession of a farm in the district of Bubi measuring 364 hectares. I was a business partner of the then owner of the farm Neil Stuart John Stone. We conducted farming and mining activities in the farm until 1989 when Neil Stuart John Stone left the property in my possession.

"Since 1989, I have been in undisturbed possession of the farm where I have continued in the business of farming to the present day. I have been in open possession of the farm for an uninterrupted period of 36 years and I have been responsible for the payment of the levies and taxes for the farm. I attach hereto the confirmation letter from Bubi Rural District Council. I am advised by my legal practitioners which advice I accept, that section 4 of the Prescription Act provides for acquisition of things by Prescription," reads part of Mr Kaguru's affidavit.

According to the court papers, Mr Kaguru's lawyers served summons to the last known address of Humble Estate and also did so via advertising in our sister paper, Chronicle, all that to no avail, in terms of locating them.

Bubi Rural District Council on the other hand confirmed in a letter to the court that Mr Kaguru was up to date in terms of rentals and rates. In his judgement, Justice Maxwell Takuva confirmed the transfer of the 364 hectares farm to Mr Kaguru.

"After reading documents filed of record and hearing Mr Nkosiyenzile Mpofu for the plaintiff, it is ordered that the plaintiff be declared the owner of a certain piece of land, registered in the name of the first defendant being Lot Two Lavendon, situated in the district of Bubi, measuring 364 hectares, held under deed of transfer number 1827.98 by virtue of prescription having openly possessed the property as if he were the owner from 1986 to present day," reads part of the judgement.

Justice Takuva also instructed that the Registrar of Deeds and the Sheriff of the High Court sign transfer papers and do any other necessary act to pass the transfer of the property into Mr Kaguru's name, within 10 days of the granting of the court order.

Section four of the Prescription Act reads; "…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 an uninterrupted period of 30 years; or 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."

The Prescription Act also caters for debts ,where it states that a debt shall be extinguished by prescription after the lapse of the period, which in terms of the relevant enactment applies in respect of the prescription of such debt.

According to the Act, the period of prescription of a debt shall be; 30 years, in the case of a debt secured by mortgage bond, a judgment debt, a debt in respect of taxation imposed or levied by or under any enactment, a debt owed to the State in respect of any tax, royalty, tribute, share of the profits or other similar charge or consideration payable in connection with the exploitation of or the right to win minerals or other substances.