There are a number of reasons why an owner of land would want to subdivide it. One of the major reasons for subdivision is to create smaller stands that can be sold for profit. Property can also be subdivided so that the created part can be donated to a spouse, child et cetera.
The subdivision of land is in terms of PART VI of the Regional, Town and Country Planning Act (Chapter 29:12). Subdivision can only occur after a subdivision permit has been issued and this is where a number of legal disputes arise as owners cannot wait to make money.
A permit to subdivide land is provided for in terms of section 40 of the Act. An application for a permit to subdivide shall be made to ‘the local planning authority in such manner and shall contain such information asmay be prescribed’ and shall be accompanied by the consent in writing in terms of section 40(1) of the Act. Section 40(2)-(9) of the Act details what happens after the application has been lodged with the local authority. What is clear however is that the local authority may grant or refuse to grant the application.
A subdivision permit is usually granted with certain conditions (section 40). These include the setting aside of land for road and public purposes, the payment of a percentage of the value of each subdivision (commonly known as endowment), development of roads and piped culverts and financing of installation of water.A permit is usually granted for a specified period and may be extended, failing which it will be deemed revoked. The local authority will issue a compliance certificate if the works on the property are carried out to its specifications. At this stage the conveyancer may now be in a position to do the transfers.
Agreements for the sale of the pieces of land can only be entered into after the granting of the permit.The Act in section 39 provides as follows;
“39 No subdivision or consolidation without permit
 Subject to subsection , no person shall –
[a] subdivide any property; or
[b] enter into any agreement –
[i] for the change of ownership of any portion of a property; or
except in accordance with a permit granted in terms of section forty:…”
Our courts have clearly stated that the effect of the above provision is to nullify any agreements for the sale of land before a subdivision permit. In X-Trend-A-Home (Pvt) Ltd v Hoselaw Investments (Pvt) Ltd 2000 (2) ZLR 348 (SC) the court stated as follows;
“Whether the change of ownership is to take place on signing, or later on an agreed date, or when a suspensive condition is fulfilled, is unimportant. It is the agreement itself which is prohibited.
The evil which the statute is designed to prevent is clear. Development planning is the function and duty of planning authorities, and it is undesirable that such authorities should have their hands forced by developers who say “but I have already entered into conditional agreements, major developments have taken place; large sums of money have been spent. You can’t possibly now refuse to confirm my unofficial subdivision or development.”
The temptation to sell or buy land before a subdivision permit has been granted is very high with sellers wanting to make profit quickly before obtaining a permit while desperate home seekers are eager to secure a property of their own. The consequences may however be dire where the court declares the agreement void after the buyer has already parted with his/her money. For this reason it is always prudent for both parties to follow the law religiously.
The contents of this article are for general information purposes only and do not constitute our legal or professional advice. We accept no responsibility for any loss or damage of whatsoever nature which may arise from reliance on any of the information published herein.
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