How Do I Actually Make a Compensation Claim?

Section 21 of the Land Act 1996 sets the framework. This article deals with what you actually put in the envelope.

Where the claim goes, and by when

• To whom: the Departmental Head of the Department responsible for lands. Not the Minister, not the Land Board, not the provincial administration.
• Form: a written claim. There is no prescribed form in the Act itself, though the Departmental Head may require further information.
• Deadline: served within one year after the date of acquisition, or within such further time as the Departmental Head allows.

What the claim should contain

Section 21(3) tells you what the Minister is looking for: prima facie evidence that, immediately before the date of acquisition, you had the interest you claim. Build the claim around that.

1. Identify the acquisition. The National Gazette notice number and its date of publication — that date is the date of acquisition and everything runs from it.
2. Identify the land. Portion, milinch, fourmil or allotment and section, as the notice describes it.
3. State your interest precisely — registered proprietor of a State lease, lessee, sublessee, mortgagee, licensee, occupier, or a customary right holder — and state that you held it immediately before the date of acquisition.
4. Attach the evidence of the interest: the certificate of title or a title search, the lease, the mortgage instrument, the sublease, or — for customary rights — evidence of the custom and of your group’s entitlement, including any Land Titles Commission or Local Land Court determination.
5. State the amount claimed, broken down under the section 23 heads: value of the land at the date of acquisition; severance damage; and any depreciation of your remaining adjoining land (and, honestly, any enhancement, which is set off).
6. Attach a valuation expressly made as at the date of acquisition and on the no-scheme basis required by section 23(2).
7. Name the other interest holders you know of. This mirrors the obligation in section 13(2)(c) and helps avoid the inconsistent-claims bar.
8. Give an address for service and keep it current.

If there is a mortgage over the land

A mortgagee has its own election under section 34 — to claim as mortgagee, or to waive. A mortgagor should say in the claim that the land was mortgaged, identify the mortgagee, and press the mortgagee to claim rather than waive, because the section 34(5) extinguishment of the debt only operates if the mortgagee claims.

Keep proof of service and of the date

Two dates decide the claim, and both are provable only if you keep records:

• the date of acquisition — from the Gazette; keep a copy of the notice; and
• the date the claim was made — because section 21(4) gives the Minister three months from that date to accept or reject, and silence is deemed acceptance.

If the claim is rejected

Rejection is not the end. Under section 22 you may bring an action against the State in the National Court for a declaration that you were entitled to the interest claimed immediately before the date of acquisition. The Court may declare you entitled to that interest or to some other interest, or dismiss the action — and its order binds the State and everyone who held interests in the land, whether or not they appeared.

For customary land, section 19 substitutes the Land Titles Commission for the National Court throughout Part IV, with the necessary modifications. See who decides compensation for customary land.

A separate statute to remember