MATSHAZI v MLOTSHWA & ANOR 2011 (1) ZLR 242 (H)

Flynote

Property and real rights — possessor — improvements effected by — compensation for — entitlement to — useful expenses and necessary expenses — distinction between — compensation to which possessor entitled

Headnote

A possessor's right to compensation for improvements to the property of another is determined according to his status as a possessor i.e. whether he is a bona fide possessor, a mala fide possessor, a lawful occupier, a bona fide occupier or a mala fide occupier. A mala fide possessor is a person who holds a thing animo domini, but who is fully aware of the fact that he is not the owner there. Such a person is entitled to claim necessary expenses (impensae necessariae) which were incurred for the preservation or protection of the property. Necessary expenses may be recovered in full. The right to compensation for useful expenses has not yet been authoritatively settled in our law, though the weight of authority seems to be in favour of the view that he is so entitled. It is not sufficient that there is an increase in the market value of the property, but the expenditure must result in an actual tangible improvement of the land. In respect of useful expenses, the possessor is entitled to recover either an amount equal to the value by which the property has been enhanced or the actual expenditure incurred, whichever is the lesser. The owner may be released from liability to compensate if the improvements were not useful to him and the expenditure excessive, regard being had to his means and position.