Buying property in Zimbabwe: what your agreement of sale must contain

Title passes on registration, not on signature

This is the single most misunderstood point in Zimbabwean property law. Signing an agreement of sale and paying the purchase price does not make you the owner. Ownership of immovable property passes only when transfer is registered in the Deeds Registry and the deed is endorsed in your name. Until then you hold personal rights against the seller — valuable, but not the same thing as ownership, and vulnerable if the seller becomes insolvent, dies, or sells the same property twice.

What the agreement should deal with

• The parties, correctly described. Full names as they appear on identity documents, and where a company or trust is buying, the correct registered name and the authority of the signatory.
• The property, correctly described. The stand or lot number and the township or land description exactly as they appear on the title deed — not the street address alone.
• The purchase price and how it is paid. Deposit, balance, instalments, the currency, and where the money is held pending transfer.
• Payment into trust. Purchase funds should be held in a legal practitioner’s trust account, not paid directly to the seller before transfer. This one clause prevents more losses than any other.
• Who bears which costs. Conveyancing fees, transfer duty, capital gains tax, rates clearance, bond cancellation costs. Silence here produces argument later.
• Occupation and possession. The date the purchaser takes occupation, whether occupational rent is payable, and who bears rates and utilities from that date.
• Voetstoots or warranties. Whether the property is sold as it stands, and what the seller warrants about the structure, the boundaries and any encroachments.
• Suspensive conditions. Most commonly the purchaser obtaining a mortgage bond within a stated period — with a clear consequence if the condition is not met.
• Breach and cancellation. Notice periods, the right to cancel, and what happens to money already paid.

Checks to make before you sign

A deeds search confirms who the registered owner actually is and whether any bond, caveat or interdict is registered against the property. A rates clearance enquiry reveals arrears that will otherwise stall the transfer. Where the seller is married, the consent of the spouse may be required. Where the property is agricultural or forms part of a deceased estate, further requirements apply.

Where the process usually stalls

In practice, transfers are delayed by three things far more often than by anything else: outstanding municipal rates, a missing capital gains tax clearance certificate, and a bondholder who is slow to consent to cancellation. All three can be started early. A conveyancer who applies for clearances the week the agreement is signed, rather than the week the parties become impatient, routinely saves a month.

The practical rule

Have the agreement drawn or reviewed before you sign it, not after. Once signature has been exchanged the terms are set, and the cost of fixing a defective agreement is a multiple of the cost of drafting a sound one.