The differences between title and ownerships
Despite their close relationship in relation to property and assets, title and ownership have different legal and practical implications. Title is a formal recognition of an individual’s or entity’s legal claim to property, as demonstrated by papers such as titles deeds or cession title. On the other hand, ownership denotes to having actual control, possession and occupation of the asset. Understanding this distinction is essential to comprehending the recognition, transfer, and holding of property rights in legal contexts. In legal disputes or transactions, the idea of title is especially crucial because it offers written proof of a person’s ownership rights. For example, if someone has the title to a piece of land, they have the legal basis to claim ownership even if they do not currently occupy the land. On the other hand, ownership without title can cause issues because simply having or using property does not give one legal rights to it; this situation frequently occurs in inheritance cases or when property is purchased without completing transfer into the purchaser`s name through a title deed.
Transferring title is a critical step in the transfer of ownership, ensuring that the new owner not only possesses the property but also has the legal right to it. While ownership can sometimes be assumed or implied through the actual use or possession of property, title cannot be assumed and must be formally granted and recorded. The ability to transfer ownership to others or use property as security for loans is also significantly influenced by title. Without a valid title, an owner might not be able to sell their property or use it as leverage for financial gain. This demonstrates how title affects the property’s financial and transactional capabilities, demonstrating its practical significance beyond the just legal claim.
The position in Zimbabwe.
Registrations of title in land are made in terms of the Deeds Registries Act [Chapter20:05] (the Act), specifically section 14 thereof which provides as follows:
“Subject to this Act, or any other law –
(a) The ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by a registrar;
(b) Other real rights in land may be conveyed from one person to another only by means of a deed of cession attested by a notary public and registered by a registrar;
Provided that attestation by a notary public shall not be necessary in respect of the conveyance of real rights acquired under a mortgage bond.”
The registration of title in one’s name constitutes the registration of a real right in the name of that person. A real right is a right in a thing which entitles the holder to vindicate his right, i.e. to enforce his right in the thing for his own benefit as against the world; that is against all persons whatsoever. Another definition of a real right is that it is a right in a thing which confers on the holder of the right an exclusive benefit in the thing which benefit is indefeasible by any other person.
What, then, are the consequences attendant upon the acquisition of a real right of this nature? The effect of registration of a person’s name as owner of a piece of land is that he is the owner of the land including the permanent buildings on it, in the absence of fraud, error or other exceptional cases. Thus, it is a principle of our law that absolute ownership in immovable property remains in the seller until the same is registered in the name of the purchaser. It follows, therefore, that an owner of property cannot be deprived of his property against his will. Consequently, no person who is not the owner can transfer ownership in anything whether or not such transferor was acting in good faith or bad faith. Since an owner cannot be deprived of his property against his will, conversely, such owner is entitled to recover his property from anyone who possesses the property without his consent.
With the exception of certain instances where title may have been through fraud, the transfer of ownership in a piece of land transfers ownershipin such land from the holder to the purchaser and thus bestows on the transferee rights, control, and possession of the land which rights are completely unfettered except as may be subject to conditions in the Deed of Transfer.When an owner of property delivers the property sold and has the capacity of alienation, or if he is not the owner but has the consent of the owner to alienate, the effect of delivery is to transfer to the person of the purchaser the property in the thing sold, provided the purchaser has paid for the property or has been granted credit by the seller. On delivery, the purchaser obtains, a real right in the thing sold.
With respect to immovable property, delivery is achieved through registration in the Deeds Office, as was decided in Harris v Buissine’s Trustee, 2 M. The pertinent passage from the judgment is as follows:
“By the law of Holland, the dominium or ius in re of immovable property can only be conveyed by transfer made coram lege loci, and this species of transfer is essential to divest the seller of, and invest the buyer with, the dominium or ius in re of the immovable property, as actual tradition is to convey the dominium of movables and that the delivery of the actual possession of immovable property has no force or legal effect whatever in transferring its dominium.”
A passage to the same effect is found from C.I. BELCHER in his book Norman’s Purchase and Sale in South Africa, 4ed quoting from Pothier, Vente, 319 et seq had this to say:
“When the vendor is the owner of the thing sold and has a capacity of alienation, or, if he is not, when he has the consent of the owner, the effect is to transfer to the person of the purchaser the property in the thing sold provided the purchaser has paid the price or the vendor has given him credit for it. The contract of sale, by itself, cannot produce this effect. Contracts can only make personal engagements between the parties. It is only delivery made in pursuance of the contract which can transfer the property in the thing sold according to the rule traditionibus et usucapionibus domina rerum non nudis pactis transferantur.”
Conclusion
Navigating legal, financial, and real estate issues requires an understanding of the distinction between title and ownership, underscoring the significance of both ideas in defining and acknowledging property rights. Title guarantees and formalizes these rights, guaranteeing their legal recognition and protection, whereas ownership signifies control and possession.