19/01/2022
As citizens of Zimbabwe we all know someone who has been a victim to some sort of scam concerning real estate property. It might be someone selling land they do not own or simply selling land that does not exist. This calls for us as buyers to do our due diligence before we buy properties and to sufficiently protect these once we acquire them.
Here are a few tips on what to do. Verification of title and ownership of the seller
It is a settled legal principle that a person cannot convey (give) a better title, than what he himself has. As a first step, the buyer should undertake due diligence, to ascertain the existence of the title with the seller, the nature of the title and its marketability and the ability of the seller to convey clear and marketable title, free from encumbrance. Documents, for a period of 30 years, if not more (and where documents are not available, for minimum period of 12 years) must be examined and the seller may be called upon to provide the following documents / information:
i. Title documents of the property – government order for grant, succession certificate, sale deed, gift deed, will, partition deed, etc., evidencing the transfer of title over the years, culminating in the vesting of property with the seller.
ii. Nature of title – leasehold, freehold, or development right.
iii. In case of the seller claiming development rights to the property, the development agreement and power of attorney, executed by the owners in favour of the seller.
iv. All title documents being duly stamped and registered at the office of the jurisdictional sub-registrar of assurances.
v. Information on pending or past litigation.
vi. Availability of original title documents with the seller.
2. Verify identity of the seller
Similar to verifying the title to the property, the buyer should also ascertain the identity of the seller and any specific conditions, governing the ability of the seller to convey the property. The following instances may be noted for illustration:
i. Residence status and nationality of the seller, in case of an individual and whether consents from government authorities are required for the sale.
ii. Identification of all owners, in case of properties held jointly.
ii. Where the seller is a company, trust, partnership firm, society, etc., the constitution documents of the entity are necessary, to confirm its ability to own and transfer the property, besides ascertaining that the person executing and registering the sale deed is duly authorized.
iii. Orders from the competent court, permitting sale of the property and appointing a guardian, where the property is held by a minor or person of unsound mind.
Title deeds can be easily accessed from the Deeds Office. The Deeds Registration Act established that deeds registry and filing of documents for particular properties is done in the area where the property is situated. Registration for property in Gweru, Gwanda, Tsholotsho, Binga, Kwekwe, Lupane or Victoria Falls would be effected at the land registry in Bulawayo whereas registration for land in Chipinge, Kariba, Uzumba-Maramba-Pfungwe, Masvingo, Harare or Guruve would be effected at the deeds registry in Harare.
Lawyers can also assist with due diligence work. It is better to lose a few hundred than a couple thousands from buying already owned property.
If you are not certain, consult.
Panashe Sagwete
(Lawyer at Masawi & Partners)
