Africa-Press – Eswatini. Properties that changed hands dropped by 10.91 per cent during the 2021/2022 financial year.
The Deeds Registry reported that there was a reduction by 123 properties when compared to the 1 127 deed of transfers, which had been recorded during the past financial year (May 2020- April 2022). The department disclosed that there were 1 004 deed of transfers, which were concluded successfully in 2021/2022.
Information sourced from online search engine, Solidariteit Solidarity, defines a deed of transfer as a legal document that indicates the transfer of a property from one person to another. It was also explained that it shows the chain of owners and serves as proof of ownership of the property.
The deeds department further reported that mortgage bonds also decreased by 2.36 per cent from 891 in 2020/2021 to 870 in 2021/2022.
It should be noted that the deeds registry performance also recorded increases in leases, crown grants and servitudes.
Leased land recorded the largest improvement by up to 70.2 per cent from 185 to 315 during the period under review (see table for details).
As explained by Bank rate. Com, a mortgage bond is a bond in which holders have a claim on the real estate assets put up as its collateral. It was stated that a lender might sell a collection of mortgage bonds to an investor, who then collects the interest payments on each mortgage until it gets paid off. As per norm, if the mortgage owner defaults, the bondholder gets her house/property.
A property development expert explained that the COVID-19 pandemic, low economic growth and non-registration of property to foreigners were some of the reasons why there had been a decline in property registration.
Section 211(4) stipulates that post the enactment of the Constitution in 2005, all agreements that had the effect of vesting ownership of land in a non-citizen or company majority-owned by non-citizens were null and void. The exact language of the said section reads as follows: “subject to subsection (5), all agreements the effect of which is to vest ownership in land in Swaziland in a non-citizen or a company the majority of whose share-holders are not citizens shall be of no force and effect unless that agreement was made prior to the commencement of this Constitution.”
It, however, did not fully assist with respect to answering the question on whether foreigners could register land because (subsection 4) is subject to section 211(5). One can therefore never fully respond to the question of whether or not foreigners can purchase land in Eswatini without having regard to section 211(5), which reads as follows: “a provision of this chapter may not be used to undermine or frustrate an existing or new legitimate business undertaking of which land is a significant factor or base.”
It should be noted that section 211(5), however, introduced an exception or exemption to this general position. A business undertaking, existing or new, which uses the land as a significant factor or base was exempted from the application of section 211. In other words, businesses, using land as a significant factor, owned by non-citizens either personally or through companies they majority own, could purchase immovable property in Eswatini.
Most often than not this would be industrial, commercial, and agricultural land.
Practically, this meant that the deeds office stopped registering residential property into the personal names of non-citizens. This prohibition also applies to companies majority-owned by non-citizens that do not use the land as a significant factor or base.
A non-citizen could therefore not simply incorporate a company use it to buy residential property. Individuals and companies that use the land as a significant factor or base were not affected by this prohibition on the strength of section 211(5). Long leases above 10 years were not affected by this prohibition.
Hence non-citizens could acquire property, whether residential or commercial, on the basis of long leases.
Admittedly this strict enforcement of Section 211(4) read together with 211(5) only started in 2017 notwithstanding that the Constitution was passed in 2005. Naturally, a number of properties were registered in the names of non-citizens or their majority-owned companies between 2005– 2016. Section 7 of the Deeds Registry Act instructed that a registered title deed could only be canceled on the strength of a court order so such registrations remain valid at law until otherwise ordered by the courts.
It should be noted that strict application of the Constitution has attracted both applause and criticism. Additional info sourced from Eswatini Property Review.
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