The issue of compensation for improvements arises where movable things belonging to one person have been attached to another’s movable or immovable property. If moveable things are attached to immovable property (land) then the owner of the land becomes the owner of the whole. Put simply if A builds a house on land belonging to B, then B becomes the owner of both the land and the house. If a movable thing is attached to a movable thing certain principles of the law of property apply and one will be held to be the owner of the whole. For example where B owns a car (the principal thing) and A paints B’s car, then B is the owner of the painted car.
In the examples given above the question is whether A is entitled to compensation for the improvements she has made on the property belonging to B. In general the non-owner can claim for compensation for improvements made to property belonging to another. This is done on the basis of unjust enrichment. In dealing with the enrichment action the courts have made some classifications of possession and holdership. Thus there are bona fide possessors and mala fide possessors, legal occupiers/ holders, bona fide occupiers/holders and mala fide occupiers/holders. These classifications help determine whether one has a right of retention or not and the extent of the compensation for improvements.
In general there are three forms of expenses which one can expend on the property of another. The first are necessary expenses which preserve or protect the property of another. The second are useful expenses which though not necessary, enhance the value of the property. The third are luxurious improvements which are neither necessary nor useful but are for decorations. In general one can claim compensation for the necessary and useful improvements but not for luxurious improvements.
Some non-owners also have a right of retention. According to this right the non-owner can retain the possession of the property of another until she has been duly compensated. It is important to note that a legal occupier or holder, for example a tenant has no right of retention. The lessee cannot therefore refuse to vacate the premises on the basis that she has not been compensated for the improvements she has effected on the property of another (see Omarshah v Karasa 1996(1) ZLR584.
The person claiming compensation for improvements should prove the same for example through the production of receipts. Thus in Mabiza v Ngwira HH 60/2013 the court stated as follows:
“I am not satisfied that the plaintiff has made a good case for the claim of $2000-00 for the improvements. If indeed she expended the sums set out in her evidence, she would have no difficulty in producing receipts and invoices to support her claim. To say that she has the receipts somewhere but was unable to bring them to court is simply disingenuous.”
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