Transfer of Property Act at Eswatini
In Eswatini (formerly Swaziland), the legal framework for the transfer of property does not rely on a single, consolidated "Transfer of Property Act" as found in some other jurisdictions (e.g., India). Instead, property transfer is governed through a combination of common law principles, Roman-Dutch law, and statutory instruments specific to Eswatini.
Key Aspects of Property Transfer Law in Eswatini:
1. Legal Dualism – Customary vs. Statutory Land
Eswatini has a dual legal system for land and property ownership:
Swazi Nation Land (SNL):
Held in trust by the King for the Swazi nation.
Cannot be bought or sold; rights to use the land are allocated by chiefs according to customary law.
Transfers of rights (e.g. through inheritance or relocation) occur within the customary framework, not through formal deeds or registries.
Title Deed Land (TDL):
Governed by statutory law and Roman-Dutch common law.
Can be bought, sold, mortgaged, or leased.
Requires formal deed of transfer, usually prepared and registered through the Deeds Registry.
2. Key Statutes and Legal Instruments:
Deeds Registry Act:
Governs the formal registration of immovable property.
Ensures that transfers of Title Deed Land are legally documented and publicly recorded.
Crown Lands Act:
Covers land owned by the government, including procedures for allocation and lease.
The Constitution of Eswatini (2005):
Recognizes dual land tenure systems and provides for the protection of property rights.
Roman-Dutch Common Law:
Applies by default where no statute governs a particular aspect of the transaction.
3. Property Transfer Procedure (for Title Deed Land):
Sale Agreement: A written contract between buyer and seller, often handled by attorneys.
Due Diligence: Check for encumbrances, ownership, zoning compliance, etc.
Deed of Transfer: Prepared by a conveyancer and signed before a notary.
Registration: Filed at the Deeds Registry, after payment of applicable duties.
Stamp Duty & Transfer Fees: Payable on registration, calculated as a percentage of the property value.
4. Restrictions for Foreigners:
Non-citizens may face restrictions on owning Swazi Nation Land.
Foreigners can generally own Title Deed Land, subject to government approval for certain types of land (e.g., agricultural).
Summary:
Eswatini does not have a standalone "Transfer of Property Act"; rather, property transfers—especially of Title Deed Land—are regulated through the Deeds Registry Act, common law, and customary law for Swazi Nation Land. The legal system’s dual nature means the transfer process differs significantly depending on whether the land is customary or statutorily held.
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