Flexible Land Tenure System (Namibia)

Flexible Land Tenure System - Land Hold Title Rights on a blockerf

The blockerf (pl. blockerven) is defined as a piece of land on which a starter title scheme or a land hold title scheme is established. The term is derived from erf (pl. erven), the legal expression (Afrikaans) defined in Namibia's Deeds Registries Act[7] to describe "a piece of land registered in a deeds registry as an erf, lot, plot or stand".

Before the establishment of a starter title scheme or a land hold title scheme is finally considered, the land concerned must be subdivided or consolidated by means of cadastral survey in such a manner that the flexible land tenure scheme concerned would be situated on one portion of land (blockerf) registered as such in the deeds registry and any mortgage, usufruct, fideicommissum or similar right on that piece of land must be cancelled. Any survey of blockerven has to be carried out by professional land surveyors.

The Land Rights Office (LRO) registers the starter and land hold titles in separate registers. There may be only a single national Land Rights Office, or there may be several regional Land Rights Offices. The Land Rights Office is established by the Minister of Land Reform and the area served must be announced in a notice in the Government Gazette, and likewise any changes to Land Rights Offices.

Every Land Rights Office is managed by a Land Rights Registrar appointed by the Minister of Land Reform. The Registrar may be assisted by registration officers and land measurers who are also appointed by the Minister of Land Reform. These persons are all employees in the public service. They need to ensure that all necessary information is recorded in the starter and land hold title registers. They also help set up new schemes and inspect existing ones to make sure that the information recorded is correct. They also help if people want to transfer their titles to someone else. A Land Rights Office may charge fees for its services. These fees must be set by the Minister of Land Reform in Regulations published in the Government Gazette.

According to section 6 of the Flexible Land Tenure Act, the Registrar of Deeds who is responsible for the national system of deeds registration is the supervisory authority of the Land Rights Offices. The Registrar of Deeds is entitled to issue directives and perform inspections or cause such inspections as deemed necessary. The Registrar of Deeds must also establish the starter title and land hold title registers.

The starter title right is the more simple level of tenure security. It provides the holder with the right to occupy an undefined site within a blockerf in perpetuity and to erect a dwelling at this location. In consent with the community, sites may be identified by the relevant authority informally without proper surveying. Therefore, the starter title right cannot be mortgaged and cannot be subject to a right of way or servitudes.

The holder of a starter title right is allowed to transfer, to bequeath or to lease the right. However these rights may be subject to restrictions by the group’s constitution or conditions imposed by the local authority. Except for persons who are married in community of property, a starter title right may not be held by more than one person jointly and no juristic person may hold any starter title right. The persons who are entitled to be registered as the initial holders of rights in a starter title scheme are the heads of the households. No person may hold more than one starter title right and no person may acquire a starter title right if he or she is the owner of any immovable property or a land hold title right in Namibia. There is no restriction on tenure by foreigners.

The land hold title right provides the owner with the right to occupy a defined and demarcated site (plot) within a blockerf in perpetuity. The holder of a land hold title right has all the rights to the plot concerned that an owner has in respect of his or her erf under the common law and may perform all the juristic acts in respect of the plot concerned that an owner may perform in respect of his or her erf under Namibia’s common law (freehold). The holder has also an undivided share in the common property which is those parts of the blockerf concerned that do not form part of any plot.

Land hold title right holders are allowed to transfer, to bequeath or to lease the right. However these rights may be subject to restrictions by the group’s constitution or conditions imposed by the local authority. The land hold title right may also be used as a collateral for a mortgage or any other form of security for a debt. It can also be subject to a right of way or servitudes relating to the provision of public services.

The plots will be surveyed and demarcated on the ground by a land measurer of the Land Rights Office who has to establish a land hold plan to be filed as record in the respective Land Rights Office.

Unlike the starter title right, there is no restrictions on tenureship.

Before titles can be granted the desirability and suitability of the informal settlement has to be determined. Therefore, the local authority must conduct a feasibility study of the area earmarked for formalisation under the flexible land tenure system. A professional land surveyor needs to survey the outer boundaries of the blockerf and subdivide it from the surroundings for registration as an individual freehold title deed.

The Flexible Land Tenure Land Measurer

No inner subdivision is required for starter title schemes. In the case of a land hold title scheme a layout plan has to be established and the setting out incl. demarcation must be carried out by the land measurer.

Following these preliminary steps for establishment of starter title or land hold title scheme and if the relevant authority is satisfied that the establishment of the title scheme is desirable and has approved it, a flexible land tenure scheme is deemed to be established after the Registrar of Deeds has made an endorsement on the title deed of the blockerf concerned. The individual titles will then be registered at the Land Rights Office.

Every starter title or land hold title scheme must have an association consisting only of the holders of title rights in the scheme. In order for these associations to function correctly membership is mandatory.

According to the Flexible Land Tenure Act, the functions of the associations are

• to represent the holders of rights in the scheme concerned in negotiations with the relevant authority;
• to manage the common property of the scheme concerned (land hold title schemes only);
• to mediate disputes between members of the scheme concerned (starter title schemes only).

Each association will be governed by a constitution and managed by a committee.

The starter title right is upgradeable to the land hold title right. Upgrading of starter title rights is only possible if at least 75% of the holders of rights in a starter title scheme have consented to the upgrade. The layout planning has to be finalised and approved in order for individual plots to be defined and allocated under the land hold title.

Starter title schemes and land hold title schemes can be upgraded to freehold title if at least 75% of the holders of rights in a scheme have consented. In the case of upgrading to freehold the title holders will have to pay for the subdivision of his/her plot and the subsequent registration in the Deeds Registry.