Transfer of Property Act 1882

Introduction: The transfer of property as defined under Section 5, is an act between two living persons. Thus the conveyance of the property must be from one living person to another living person. However transferee need not be a competent person like transferor. A transferee may be a minor, insane or child in mother's womb. The word "living person" includes corporations and other association of person. A transfer can be made by a person to himself, as for instance when a person vests property in trust and himself becomes the whole trustee. The transfer of property may be made to take place with immediate effect or to take place on a future date; however the property must be in existence at the date of transfer. There can be no transfer of future property. The expression 'in present or in future' governs the word 'conveys' and not the word 'property', e.g., A transfers his property to B for life and then to C. The transfer in favour of B is present (although he gets only life interest) but the transfer in favour of C is future transfer. Kinds of Transfer: The Act contemplates the following kinds of transfers: (1) Sale, (2) Mortgage, (3) Lease (4) Exchange, and (5) Gift. Sale is an out-and-out transfer of property. In mortgage, there is a transfer of limited interest in property. A lease is a transfer of a right to enjoy immovable property for a certain time or in perpetuity. Exchange is like a sale, but differs from it as regards the consideration. In sale, the consideration is money, while in exchange, the consideration is another thing. In a gift, there is no consideration. Immovable Property: Whenever we speak about immovable property, we always use the ready reference of 'attached to the earth'. Whether a thing is permanently attached to the earth, whether it is capable of separation or not and what is the intention behind the construction or promoted growth of the property are a few of the points that need to be looked into. The definition of immovable property as per the Transfer of Property Act is a negative definition. The Section 3 reads that "immovable property" does not include standing timber, growing crops or grass". Standing timber refers to trees that are fit for usage in building or repairs. Growing crop includes all such vegetables, etc that are solely grown only for their produce. Grass is referred to as fodder.

2020

In this paper, the authors analyze the civil law liability of a mortgage debtor (mortgagor) in cases where the debtor breaches the obligation of treating the mortgaged real estate in compliance with the legal standard of acting with due diligence of “a good host” or “a good businessman,” and thus depreciates its value to the extent that jeopardizes the possibility of enforcing the claim. Given the accessory nature of mortgage which is aimed at securing the claim as the primary right, this form of civil liability and the corresponding rights of the mortgage creditor (mortgagee) are applicable before raising the issue of traditional civil law liability, which implies the maturity of the receivables and compensation for the damage sustained by the creditor. This form of civil liability may also be used preventively when there is a real risk of causing damage to the mortgagee. The relationship between civil law liability and the insurance of the mortgaged asset implies that they do not ...

2018

There is a lack of clarity in subsections 129(3) and (4) of the National Credit Act 34 of 2005 (the NCA) dealing with reinstatement of a credit agreement. These provisions state that a credit agreement can be reinstated if certain conditions are complied with. Reinstatement of a credit agreement is an important remedy for consumers who have fallen into default and who are willing to pay the arrears and the credit provider's costs and charges that were incurred as a result of the default. This remedy is essential to mortgagors, who may be rendered homeless if their homes were to be sold in execution. However, it has been evident from the judicial disagreement in Nkata v First Rand Bank Ltd 2016 (4) SA 257 (CC) that there are difficulties with interpreting subsections 129(3) and (4) of the NCA. The legislature amended section 129(3) of the NCA by the enactment of section 32 of National Credit Amendment Act 19 of 2014 ('Amendment Act') in an attempt to rectify these problems. This dissertation will discuss the interpretation of these subsections applied by the Constitutional Court and its implications. This paper will also discuss Rule 46 of the Uniform Rules of Court which has recently been amended by the insertion of Rule 46A. This rule requires the court to consider alternative means, ie other than execution against a primary residence, which resulted in some High Court Divisions amending their practice manuals and directives. For instance, the South Gauteng Local Division did so. Reinstatement may be considered as an alternative to execution; however the ambiguity and the failure of the provision to stipulate a logical and consistent procedure for reinstatement creates uncertainty. Therefore, in view of the lacuna revealed it is recommended that a further amendment to the NCA is desirable which will be precise, coherent and adhere to the objectives of the Act.

Zenodo (CERN European Organization for Nuclear Research), 2023

The study aims to understand the juridical review of the transfer of inheritance rights to a land burdened with mortgage rights and the legal consequences of the heir's refusal to transfer inheritance rights to a land burdened with mortgage rights. This study is normative legal research (juridical) or literature law research. The results of the study show that : (1) the procedure for the transfer of rights over inherited Land which is being burdened with mortgage rights is carried out by recording them in the land book and certificate of mortgage rights in question and the land book and certificate of rights burdened based on a letter of evidence of the transfer of receivables guaranteed due to Inheritance, and (2) The legal consequences if the heirs reject the Inheritance of land rights that are being burdened with mortgage rights, namely that the heirs who expressly declare their rejection of their inheritance rights result in the heir being deemed to have never existed. The heirs' rejection of the Inheritance of land rights under the imposition of Mortgage does not result in the encumbrance of the Mortgage being annulled and rejecting Inheritance just because they don't want to pay off the Inheritance that is being burdened with mortgage rights.

i DECLARATION By submitting this dissertation electronically, I declare that the entirety of the work contained therein is my own, original work, that I am the authorship owner thereof (unless to the extent explicitly otherwise stated) and that I have not previously in its entirety or in part submitted it for obtaining any qualification.

The thesis examines the law of mortgages in Tanzania following the enactment of new land laws, in particular the Land Act 1999. In the study, we examine the statutory regime introduced by the Land Act focusing on, among others, what the Act sought to address, its weakness and achievement.