Hilary Muza 
SOME discussions are just worth repeating because some readers appear not too keen on the advice that this column gives, and yet mistakes that I have warned against continue happening.
In early 2006, I warned readers about the inherent dangers that one may face when negotiating an agreement of sale.
However I have realised that most of the disputes, pending before the courts continue to revolve around sales of immovable property.
My own further investigations have subsequently confirmed that, week in and week out, our courts are saturated with disputes of this nature as well as a sizeable number of divorces.
Upon further reflection and pondering, I also realised that, the business of selling houses or land has become a safe playing field for conmen who also include some dubious estate agents.
The police are inundated with complaints emanating from victims swindled of their hard-earned income by these uncouth elements.
Much, however, as the police might strive to stamp out this prevalent crime, the desperation of some home-seekers, who rush to part with their money without doing sufficient investigations invariably, complicates matters.
Another disadvantage faced by victims of this malaise is that most perpetrators escape conviction of the crimes of theft or fraud because the modus operandi causes the matters to be civil in outlook, rather than criminal.
Having failed on the criminal front, an attempt to seek compensation in the civil courts usually yields nothing because the smart conmen are spendthrifts, elusive and usually indigent, thereby leaving their victims clutching at nothing.
The modus operandi takes many, but obvious forms. One common one is where a seller of a property negotiates with a purchaser today, and tomorrow, turns around negotiates a second sale with another unsuspecting purchaser.
Usually the capricious and criminally-minded seller then swiftly passes on the title deeds to the second purchaser who would have paid more than the first purchaser.
The other form is where outright smooth talking criminals “sell” non-existent houses or land using well-crafted but fake title deeds and in this process they get assistance from unscrupulous accomplices at the offices of the Registrar of Deeds, or officials in charge of housing at town council offices.
Those individuals who are not careful enough, or those who do not seek legal advice through honest and reputable lawyers, end up yelling and in tears having lost fortunes.
Notwithstanding that most victims are Zimbabweans in the Diaspora, who may not have a chance to read this column, I have felt compelled to give advice again on this subject so that those who are careful enough will avoid the pitfalls that others have stumbled into. In doing so, I shall first outline the law, for the sake of better understanding.
The case of Crundal Brothers (Pvt) Ltd vs. Lazarus NO. and Another 1991 (2) ZLR (SC) laid down the law regarding rights of parties in case of a double sale of an immovable property.
The Supreme Court stated the position of the law in this way: Where A sells a piece of land first to B, and then to C, the rights of the parties are as follows;
1.Where title deeds have been given to C, C acquires an indefensible right if he had no knowledge, either at the time of sale, or at the time he took transfer, of the prior sale to B, and B’s only remedy is an action for damages against A.
2.If, however, C had knowledge at either of these dates, B, in the absence of special circumstances affecting the balance of equities, can recover the land from him, and in that event C’s only remedy is an action for damages against A.
Any further attempt to elucidate the above position will be tedious and unwarranted. Going by the example of the first facts situation given above it goes without saying that even if one may be the first to negotiate an agreement with a seller, if one does not push to get the title deeds, and such title passes to a subsequent purchaser, that will be the end of the matter, and the only remedy possible is to seek damages from the seller.
In practice, this process will not be cumbersome to pursue but will cause the victim to incur more financial loss through legal expenses.
Purchasing of immovable property, no matter how desperate one is, should never be done hurriedly as if one is buying bread across the counter.
Careful investigation of the intentions of sellers, as well as the records held either the Deeds Office or offices of local councils must be carried out.
A patient and diligent search through the assistance of lawyers who are knowledgeable about the appearance of title deeds will assist in revealing the position of ownership.
Where it is discovered that the property is jointly owned, the law requires that the other joint owner be part to the agreement of sale.
That is not all. A physical inspection of the property is always called for to ensure that one is not purchasing a dummy.
Where one is purchasing from private property developers, one must make sure that the seller was granted a subdivision permit and a compliance certificate, and even further making sure that the land was properly surveyed and a diagram approved by the surveyor-general is available.
For without these the seller will virtually be constrained as far a passing of transfer is concerned.
Agreements of sale must also be prepared through reputable estate agents who are registered with the Estate Agents Council, so that in the event of fraud or embezzlement purchasers can be indemnified.
Those purchasing council properties must similarly convince themselves that the seller is the true owner and that council approval to dispose of the property has been granted.
It is better to take time and incur moderate costs through employing reputable lawyers and estate agents than be stingy and suffer a lot of financial loss through carelessness and rushed decisions.
Muza is a Harare-based legal practitioner. He writes in his personal capacity.
