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Common challenges on land, immovable properties

Some developers, for example of flats or cluster homes, may sell off plan and charge a price of a completed unit yet they do not complete the construction. It is necessary to find legal solutions to such unfortunate situations.

Godknows Hofisi

This article looks at common challenges associated with land or immovable properties. Some of the challenges end up being escalated to the courts where they are eventually resolved through lengthy processes.  Some of the challenges are explained below.

Disagreements over agreements of sale

It is quite common to find buyers and sellers of land or immovable properties not agreeing on the terms and conditions of the agreement of sale or breach thereof. It is usually around breach, its rectification or cure or implications of failure to rectify or cure it. Most agreements of sale specify what is breach by either party. Examples include:

Failure by the buyer to pay the purchase price or instalments by due dates,

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Failure by the seller to sign papers necessary to give effect to the transfer of title from the seller to the buyer,

Failure by property developer to complete development within agreed time-frames, as explained in detail below.

Fraudulent transactions

Fraudulent transactions are reported from time to time. Common ones include people trying or selling someone else’s property using fake identity documents. This calls for great care when dealing with sellers one is not familiar with. This is why it is advisable to deal with a seller through a reputable estate agent and registered conveyancer under a law firm.

Conditions to be fulfilled prior to transfer

At times there are conditions attached to a deed of transfer restricting the transfer of title.

These conditions may include the consent to be given by the local authority before the land can be transferred.

This may be done to ensure there is certain minimum development on the land before it is sold. At times there can be inordinate delays by the local authority in giving the consent.

The seller may not assist especially if the buyer has paid the purchase price direct to the seller instead of through a conveyancer. This gets worse if the local authority declines to give its consent.

Properties under development

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Most properties under development do not have deeds of transfer otherwise commonly referred to as title deeds. They are held under cession. There are many challenges that can emanate from this category of properties, namely:

 Double selling by the land developer,

Not developing the land in order to meet local authority requirements necessary for the issuance of the compliance certificate. In a land development a compliance certificate is usually required to effect transfer from the developer to the cession holder (the buyer).

Some developers, for example of flats or cluster homes, may sell off plan and charge a price of a completed unit yet they do not complete the construction.

It is necessary to find legal solutions to such unfortunate situations.

Disputes over boundaries

For new developments there can be disputes over boundaries. For example on farms, plots or even residential properties a neighbour may encroach onto the other’s land. It gets complicated where one neighbour has already built an immovable structure.

Division of property in the event of dissolution of marriage

Where spouses in a marriage are divorcing division or sharing of immovable properties is usually a serious issue and source of problems.

It is advisable to consultant legal practitioners on how best to safeguard properties during happy times and also how to get a fair share during dissolution.

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There are many laws covering this areas and many cases decided by courts. It is important to have an appreciation of family law.

Treatment of property pursuant to inheritance

This is another area that causes many problems and even disintegration of families.

A person can die testate, i.e. having left a will, or intestate in that he / she would not have left behind a will. Where one dies testate distribution of his / her estate is normally done in terms of the valid will.

In the intestate case it is dealt with in terms of the Deceased Estates Succession Act (Chapter 6:02).

In late 2020, the Supreme Court of Zimbabwe delivered a landmark ruling in the case of Gerald Chigwada v Penelope Chigwada and Others (SC 188/20). The import of the ruling is that the law of testamentary disposition in Zimbabwe recognises the doctrine of freedom of testation and does not oblige a testator (a person who dies having made a will) to bequeath his or her property to the surviving spouse. In other words a person who is married out of community of property has the right to dispose of his or her estate by will to whomsoever he or she chooses.

The main acts cited were the Married Persons Act (Chapter 5:12), Marriage Act (Chapter 5:11), Wills Act (Chapter 6:06) and Deceased Estates Succession Act (Chapter 6:02). Again it is important to have an appreciation of family law especially how to safeguard family interests in immovable properties.

Advice

Carry out due diligence before transacting on land or immovable properties. Always consult your legal practitioner who is a conveyancer on transactions involving properties. Engage your legal practitioner to defend your interests in land or immovable property.

Disclaimer: This simplified article is for general information purposes only and does not constitute the writer’s professional advice.

Godknows Hofisi, LLB(UNISA), B.Acc(UZ), CA(Z), MBA(EBS,UK) is a legal practitioner / conveyancer with a local law firm, chartered accountant, insolvency practitioner, registered tax accountant, consultant in deal structuring, business management and tax and is an experienced director including as chairperson. He writes in his personal capacity. He can be contacted on +263 772 246 900 or gohofisi@gmail.com.

HERALD