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Legal Advise on Property Acquisition in The Democratic Republic of Congo
This legal advice includes procedures for purchasing property in the DRC. The advice is given on the grounds of:
- Transition Government Constitution;
- Law n° 73/021 dated July 20 th, 1973 referring to common regulations of belongings, land, properties and sureties as modified and completed to date by law n° 80 – 008 of July 18 th, 1980.
For information purposes, the advice undertakes four points:
- Purchasing property in the DRC
- Procedure for acquiring, newly divided land;
- Non-residents;
- Legal authorities who have power to allocate land in the DRC.
I. PURCHASING PROPERTY IN THE DRC
There are no restrictions on property ownership save for illegal aliens owning immovable property within the DRC. However it is advisable to go through the following procedures when acquiring property:
1. Examination of titles (DEED)
The examination of property deeds belonging to seller is meant to ensure and confirm that the property belongs to seller (the title must bear the seller’s name), that the land has not been sold to any third party, that the property on sale is the same as indicated on titles, that no legal opposition is made over the property and that no valid mortgage bond runs over it. The office of the Title Deeds and Conservation does the verification.
2. Signing Agreement of Sale (Deed of sale)
A sale agreement or contract can be signed in the presence of the city mayor, area chief or witnesses whereby the city mayor delivers a certificate to be authentified at the Notary’s office.
According to the above procedure established by circular note 1189/05/82, a 10% tax fee is paid to the mayor’s office on property sale price. Other people sign sale deeds in notary or property registry office.
The Deed of sale includes the following items:
- Identity of both parties
- Description of plot
- Geographical location
- Description of buildings
- Sales price
- Payment modalities
- Place of signature
- Both parties and witnesses signatures.
3. Authentification of Deed of Sale
Once a Deed of sale is signed, parties go through further steps, among which is the authentification of titles. This step is made abide the notary of the city and consists of the latter scaling and signing the deeds after hearing both parties. After the above formality the contract of sale becomes an authentic document. For this step the curator of titles acts as a notary.
However it should be noted that at this stage, the Deed of sale authentification does not confer ownership of property to the buyer. It only gives him right to become owner of the property. To really own a property, the buyer must make registry steps.
4. Registering authentified Deed of Sale
This stage concerns registry of property. The formality is done at property titles curator’s office that will transfer ownership if every step is fulfilled.
5. Transfer of ownership
5.1. Living persons
During transfer transaction, the curator of titles annuls property ownership of seller and makes up a new one in the name of buyer. According to the DRC Law, the document giving ownership right on property is named CERTIFICATE OF REGISTRATION. The certificate of registration is the legal document that establishes and proves ownership of property, real charges or right of use.
This act is authentic according to the will of the legislator who requires certain – namely the authentification – formalities before one has his titles authentified (see Article 231 of Land Law).
The same as for purchasing deed, any other real estate transfer of documents must undergo same procedure as required by Law, i.e. they should be authentified. Amongst the other transfer deeds, we can cite name change, donation, division et cetera…
Item 219 of Land Law provides that:
“ The right to use a property is legally established only by means of a Certificate of Registration.
Private ownership of property through blending, which is usually separated from land is legally established only through subscription on certificate determining concession of property”. Besides transfer made after sale deeds or alienation deeds, transfer can be obtained through court ruling, (conversion) change of titles of occupation or through death.
5.2. Transfer through trial order
It may happen that in the end of trial, the judge orders that the registry officer establish of a Certificate of Registration in favour of either of the parties. Such a decision must be taken only if the property was in part a disputed item so that real estate titles curator executes such injunction.
5.3. Transfer by conversion of titles
In the old days, right of occupation was allocated by the livret de logeur or in other words Booklet of Ownership. However, item 390 of Land Law provides that “ As from the date of entering in force of present Law, right of occupation given by the livret de logeur or by any equivalent title is abolished.
Nevertheless, those nationals who still possess such documents, provides that title is valid and refers to land pertaining to private estate of State located in a divided and registered area, will enjoy perpetual ownership right on occupied land…”
The landlords possessing the aforesaid booklet may see their converted into registry certificates.
5.4. Post-mortem transfer
After one dies, the heir seeking for transfer of property must beforehand request investiture to the President of local court. The request is published in one or various state newspapers chosen by the judge who will, upon examination of the request, return the documents to the heir’s possession, after the general Prosecution services decision, pronounce a ruling of investiture within 4 months starting from day of news papers publishing (See item 233 of land law).
If the heir complies with the requirements, the registry officer will fill a new registry certificate replacing the one in deceased’s name.
5.5. Transfer costs
The transfer costs cover 6% of property price. In the end of the formalities, the new buyer who owns from now on a registry certificate becomes the owner of property. No legal action can be taken against him and he will only pay damages for any claim against his rights (item 227 of land law).
6. Purchasing Government property
Item 210 of Land –Law provides the following: “ State real estate is made of all properties allocated to public use or service”
Government property can neither be alienated nor rented out as long as they are not regularly disused. As a mater of consequence, people purchasing buildings having pertained to State should ensure the properties have been regularly disused before making any transaction.
Note however that all other buildings not pertaining to public domain of State are part of the private domain and are ruled by Land-law and its execution regulations (item 211 of Land-Law).
II. PROCEDURE TO PURCHASE PLOT
To purchase a plot in a newly divided area the procedure consists of three steps:
- Application for land;
- Application of rent deeds and concession;
- Granting of Certificate of Registration.
1. Application for Land
The application for land is sent to property registry officer who is attended in his duties by the file analysis and the treatment offices.
There are domain (that scrutinizes the application for land and arranges the needs on administrative ground) and registry (a technical service in change of measurements, marking –out, checking the development of plot, premises visit and registry number allocation) offices.
The curator will be involved to conclude the filcake decision only after the least development of land is made and the file sent to domain office for preparation of deeds to be signed by property titles curator.
2. Signature of rent deeds and allocation of plot
After rent deeds are signed, the applicant must comply with certain obligations towards the state such as:
- Paying in advance annual rent;
- Occupying the premises within six months;
- Starting plot development may the land be dedicated for residence, agriculture, industry or commercial business.
Once the beneficiary of rent deeds complies with the above item, he can sign plot deeds. Otherwise, the public officers will have the right to terminate to rent agreement which is signed under execution condition.
In others terms, if the applicant does not conform to all the formalities required in the agreement of rent, the agreement will be terminated and the plot get back to the State. In case a plot agreement is signed; the beneficiary will have the right to use the plot as he likes, which means even to sell it.
3. Allocation of a Certificate of Registration
The property titles curator registers he deeds the delivers a registry certificate set up in duplicate a copy of which remains in the register and the other is given to the tutor of the registered right.
III. NON- RESIDENTS
Item 9 of Transitional Constitution provides that: “The ground and the underground belong to the State. The conditions of their allocation are regulated by Law, due to ensure local populations rights”.
Land Law considers separately plot matters according to their nature and duration depending on whether the applicant is a natural person of Congolese nationality, a foreign natural person, a company (legal entity) or a non-profit-marking organization.
In fact, perpetual concession is allocated only to natural persons of Congolese nationality. Regarding the legal distinction, natural persons not residing in the DRC can only apply for ordinary concession; which is the same as for companies and non-profit-marking organizations.
The duration of normal (ordinary) concession is 25 years renewable. Also, natural Congolese persons who have provided distinguished service to the Nation may receive plots for free (item 160 of Land Law); and that includes public organizations, , private companies providing public utilities, and non-profit organizations working in general interest and set up in accordance with the Congolese laws.(item 163 of Land Law).
IV. RELEVANT AUTHORITIES WITH POWER TO ALLOCATE LAND
Examination of article 183 of Land Law underlines that concessions are valid only if they are assigned by following authorities:
In rural areas:
- By special Law for surfaces over 2.000 Ha;
- By the President of the Republic for land between 1.000 and 2.000 Ha by means of decree
- By the Minister in charge of Land affairs for property of 200 – 1.000 Ha, by means of Ministerial Order;
- By the Governor of Province for land measuring less than 200 Ha;
- By the Curator of Land titles for land of less than 10 Ha.
In Urban areas:
- More or equal to 100 Ha: by Law;
- From 50 to 100 Ha: The President of the Republic;
- From 10 to 50 Ha: Minister in charge of Land affairs;
- Less than 50 ares: By Governor of Province;
- Less than 50 ares: Governor of Province who can delegate power to property titles curator.
In the capital city Kinshasa:
- More than 2 Ha: Minister in charge of Land Affairs;
- Less than 2 Ha: The Minister in charge of Land can delegate power local provincial property registry officers.
Information courtesy of John Claude Crespy & Tambwe - Attorneys at Law
The legal advice presented here is provided for information purposes only and should not be depended on entirely in any transaction. Professional legal advice should be sought on each particular transaction. Panorama properties will not be liable for any losses incurred from the use of this information. The contents contained herein are subject to change anytime.
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