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

 [1]        Subject to subsection [2], 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

                        [ii]        …

 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.

Copyright © Marume &Furidzo Legal Practitioners 2020

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1. First determine whether the property you want to buy is held under an agreement of sale (in which case the rights will be transferred to you by cession) or it has title deeds. The difference between the two is significant for a number of reasons. Where the property is held under an agreement of sale the person is not the ‘owner’ of the land in the legal sense, what he/she has are personal rights to the land. When one buys this land, the rights to the land are transferred to him/her through cession. This is usually the case with most houses in Chitungwiza and other smaller towns. In Harare this is common in Highfields, Mufakose and Mabvuku. On the other hand, where the person who is selling you the land has a title deed he/she is the owner of the land in the legal sense. It is wise to engage a lawyer who can help you understand the nature of the prospective seller’s rights in the land.

2. Where the land is held under a title deed and even if you are shown the original title deed there is need for verification with the Deeds Registry on a number of issues. A deeds search (preferably done on your behalf by a lawyer) will detect mortgage bonds, caveats and other endorsements, if any. You also need to physically see the land being sold and the identity of the seller. Where the rights in the land are to be transferred to you through cession, you need to have sight of the agreement which gives the seller rights in the land. You also need to check with the person or institution which will process the cession for example the council. In some cases there may be conditions for cession to go through.

3. The next stage is to have an agreement of sale drafted and this is better left to legal practitioners. Important terms include whether the purchase price is inclusive of value added tax (where applicable), mode and manner of payment, the stage at which risk will pass, date of occupation and variation of the contract.

4. Where the land is held under a title deed, the process of change of ownership is done through the Deeds Registry Office by a conveyancer. It is the seller who chooses the conveyancer and parties may put a clause in the contract specifying the conveyancing law firm. The buyer will have to pay the conveyancing fees whilst the seller pays the capital gains tax unless there is an exemption. Under cession, the Deeds Office is not involved but the parties simply attend at the council or developer’s offices where cession forms are signed. Cession fees are usually charged.

5. In Zimbabwe marriages are out of community of property. This means that each party in a marriage can independently own or have rights in a property. They can do whatever they want with the property without consulting their spouse unless the property is registered in both their names. Where parties are married they must be alive to this principle when buying a house. Note however that upon divorce the assets of the parties are distributed in terms of the Matrimonial Causes Act.
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.
Copyright © Marume & Furidzo Legal Practitioners 2018

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