In Zimbabwe there are two categories of property rights: real rights and personal rights.
A real right is an exclusive interest or benefit enjoyed by a person in a thing. It is an absolute right and entitles the holder to enforce it against other persons. Real rights are registrable, while personal rights are not. Real rights include long leases and servitudes.
A personal right is a right that is enforceable against only a particular person and is based on the existence of a special legal relationship, such as a contract. It is a right from a person to a person. An example of this would be short-term leasehold.
Last modified 12 Jun 2024
No.
Section 71(2) of the Constitution of Zimbabwe, 2013 states that every person has a right, in any part of Zimbabwe to acquire, hold, occupy, use, transfer, hypothecate, lease or dispose of all forms of property, either individually or in an association with others.
Last modified 12 Jun 2024
Pre-emption rights are not imposed by statute. This is a matter subject to contract between the parties. For example, where there is a sale of an apartment in a block of residential flats, it may be a condition imposed by the Homeowners Association in the Home Owners Agreement that one owner offers a right of first refusal to other owners in the complex before opening up the sale to members of the public. In an instance such as this, the seller would need to offer the building to the other owners on the same terms and thereafter obtain a written refusal from each of the current occupiers before selling to a third party.
In respect of rural land, the Land Acquisition (Disposal of Rural Land) Regulations provide that the Minister of Lands and Rural Resettlement shall be given the right of first refusal when disposing of rural land. In terms of these regulations, a person would therefore be required to obtain a certificate of no present interest from the Minister of Lands in order to dispose of the rural land.
Last modified 12 Jun 2024
In Zimbabwe, the following laws apply to the regulating of property transactions, depending on the nature of the transaction. The major legislation pertaining to property transactions are:
Last modified 12 Jun 2024
There are no special laws that apply to the transfer of title in respect of a specific type of real estate. All transfer of title is done in accordance with the Deeds Registries Act [Chapter 20:05].
Last modified 12 Jun 2024
A draft deed is prepared together with a special power of attorney to pass transfer and the declarations for signing by buyer and seller. The seller applies for a rates clearance certificate to the local authority under whose jurisdiction the property falls. The seller must also apply for a capital gains tax clearance certificate from the Zimbabwe Revenue Authority (ZIMRA). After an assessment is completed by ZIMRA, the seller is required to make payment for capital gains tax and obtains a CGT certificate. The transfer documents are then lodged for registration of title with the Registrar of Deeds Office.
Last modified 12 Jun 2024
Real estate and title thereto is kept on a register which is held at the Registrar of Deeds Office. All transfers of title are effected through the Registrar and a record is kept at the Deeds Office. Registration of the transfer should be as soon as a transfer is completed.
Title insurance is taken out to protect an owner’s or a lender’s financial interest in real property against loss due to title defects, liens or related aspects. Currently, Zimbabwean insurance companies do not make provision for title insurance.
Last modified 12 Jun 2024
A draft deed is prepared together with a special power of attorney to pass transfer and the declarations for signing by buyer and seller. The seller applies for a rates clearance certificate to the local authority under whose jurisdiction the property falls. The seller must also apply for a capital gains tax clearance certificate from the Zimbabwe Revenue Authority (ZIMRA). After an assessment is completed by ZIMRA, the seller is required to make payment for capital gains tax and obtains a CGT certificate. The transfer documents are then lodged for registration of title at the Registrar of Deeds Office.
Last modified 12 Jun 2024
This is an aspect within the sole discretion of the buyer, and in some instances, buyers wish to carry out due diligence on the property. Typically, this takes place with the assistance of legal advisors in order to protect the buyer against any future setbacks and losses pertaining to the property.
Last modified 12 Jun 2024
Where a property is co-owned, the seller needs to have the consent of his/her partner before selling a property.
Where couples are married in community of property, consent would need to be sought from the other spouse.
Where the owner of the property is a minor, the minor’s legal guardian must approach the court on behalf of the minor for the appointment of a curator for a disposal of the property. The curator must then consent to the sale on behalf of the minor.
All corporate entities require a resolution or consent from its members to sell a property.
Where the property forms part of a deceased estate, the Master of the High Court must consent to the sale. The executor appointed is responsible to apply to the Master.
Where the property forms part of liquidation proceedings, the trustee of the insolvent estate must approach the Master to obtain his consent.
Where the property is subject to a mortgage bond, the bond holder’s consent is required for a sale transaction.
In the event that a purchaser or seller requires someone to act on their behalf and attend to the transfer of a property for him/her, a Special Power of Attorney must be prepared, consenting to the appointed person acting on his/her behalf. Details must be fully set out, stating the particulars of the appointed responsible person as well as the full details of the property in which all acts will be performed. The Special Power of Attorney must be signed by the person who requires the Special Power of Attorney and must be notarized by a notary public.
Last modified 12 Jun 2024
Yes. The contract must be reduced to writing. It must cite the correct description of the property as per the title deed. The parties must be cited. The deeds office requires the date of birth and national identity numbers of the parties to be indicated on the contract. It should also state all the details of the sale: for example, the date, purchase price, signature of all parties and witnesses. Both parties also need to review all the contents and details of the contract before signing it.
A typical contract will set out the full particulars of the parties, the property, the purchase price, the payment method or terms, warranties and obligations of the parties, any conditions precedent that must be fulfilled before the transfer will be effected, address for the service of notices, the applicable law, arbitration and termination of the contract. It must be signed by the purchaser and the seller in the presence of two witnesses each.
Last modified 12 Jun 2024
There are no sellers’ warranties provided by the law, although warranties can be agreed upon by the two parties involved. In practice, the sale of property is conducted voets stoots (sold at the buyer’s risk and without guarantee or warranty). The buyer may require additional warranties from the seller, however this is subject to contractual agreement.
Last modified 12 Jun 2024
In Zimbabwe, contract law is governed by the common law, and as such, the principles of common law will be applicable with respect to a misrepresentation. Where there is negligent misrepresentation, the remedy at common law would be a damages claim.
The remedies available for a misrepresentation are rescission of the contract or a claim for damages
The fundamental rule with regard to award of damages for breach of contract is that the sufferer should be placed in the position he would have occupied had the contract been properly performed, so far as it can be satisfied by payment of money and without causing any hardships to the defaulting party.
Where the parties have entered into a contract and the contract contains a penalty clause for default or breach of contract, the Contractual Penalties Act [Chapter 8:04] states that a creditor shall not be entitled, under a penalty stipulation, to both the penalty and damages or, except where the contract expressly so provides, to damages in lieu of the penalty. Therefore, should the contract make provision for a penalty where a misrepresentation has taken place, the aggrieved party may only claim either the penalty or the damage suffered.
Last modified 12 Jun 2024
Last modified 12 Jun 2024
According to the Environment Management Act [Chapter 20.27], the Director General, inspectors and officers are responsible for ensuring that policies and programs in respect of land, air, water and soil pollution and hazardous waste management are coordinated. This Act provides them with many powers including to enter specified land, examine any activity considered to be detrimental to the environment, take or remove samples, or seize items considered to be used in the commission of an offence.
Power is also granted to them to effect closure of a premises for a period of three weeks or serve an order requiring the individual to take preventative measures against the harmful activities against the environment. An investigation is normally conducted, depending on the circumstances of the case in order to ascertain the source of the pollution or contamination of the building. In the event that the buyer is served with an order in this instance where the fault was not his own, the Act makes provision for an appeal process and for the Administration Court to hear the matter and make a decision based on the evidence submitted.
Last modified 12 Jun 2024
Where the seller is not in possession of the required information already, the buyer may approach the city council to ascertain this information. They may also approach the Environmental Management Agency (EMA) which regulates environmental issues and concerns.
Last modified 12 Jun 2024
Yes. The government in Zimbabwe is keen to promote foreign investment into the country and has put measures into place in this respect. Provision is made for public-private partnerships with the government to facilitate projects, especially where the project is aimed at the betterment of the country as a whole. Advice is this regard may be sought with detailed information on the types of public-private partnerships that may be engaged.
Last modified 12 Jun 2024
Section 72(2) of the New Constitution of Zimbabwe, 2013 empowers the government to compulsorily acquire land, whereupon the land, right or interest will then be vested in the state with full title. The Constitution further states that no compensation will be paid apart from improvements made to the land and that no person may approach the court for an order for compensation in this regard. Only indigenous Zimbabweans will be entitled to compensation in terms of section 295 of the Constitution These provisions are further entrenched and fully detailed in the Land Acquisition Act [Chapter 20.10].
Last modified 12 Jun 2024
Sharing of transaction costs between the parties is on the agreed terms, however liability for taxes and costs is as follows in terms of the law:
Last modified 12 Jun 2024
Capital gains tax is the only statutory cost incurred when buying real estate via the shares of the owning company. This is a cost which is borne by the seller.
In the event that contracts are drawn up with respect to the purchase of the shares, the additional cost would be the legal fees incurred for the drafting of the agreement. This cost will be subject to agreement between the parties.
Last modified 12 Jun 2024
Do mandatory pre-emption rights apply to the sale of real estate assets in this country?
Pre-emption rights are not imposed by statute. This is a matter subject to contract between the parties. For example, where there is a sale of an apartment in a block of residential flats, it may be a condition imposed by the Homeowners Association in the Home Owners Agreement that one owner offers a right of first refusal to other owners in the complex before opening up the sale to members of the public. In an instance such as this, the seller would need to offer the building to the other owners on the same terms and thereafter obtain a written refusal from each of the current occupiers before selling to a third party.
In respect of rural land, the Land Acquisition (Disposal of Rural Land) Regulations provide that the Minister of Lands and Rural Resettlement shall be given the right of first refusal when disposing of rural land. In terms of these regulations, a person would therefore be required to obtain a certificate of no present interest from the Minister of Lands in order to dispose of the rural land.
Last modified 12 Jun 2024