Is an agreement of sale proof of ownership of land in Zimbabwe?

CLIVE MASANGO*

THE principle that an owner cannot be deprived of his property without his will, means that he is entitled to recover it from any person who retains possession of it without his consent. Most people make a general assumption that once they conclude an agreement of sale of land/property, they have/would have obtained title to the property/land in question. In effect, they believe they will legally be the owners. 

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There has been a spate of cases involving people who buy land/property from someone, conclude an agreement of sale and that seller passes on before transfer. If an agreement of sale is the only thing that was concluded before the seller passed on, that property still belongs to the seller—and the buyer becomes a creditor of the estate. 

What it means is that like every other creditor of the estate, the buyer will have to lodge their claim with the master after the estate has been advertised and creditors called upon to lodge their claims. 

This is just but one example in which the question of whether or not an agreement of sale is proof of ownership of land arises. 

This short article therefore explores and summarizes what an an agreement of sale is, what title to land means and how one obtains title to land.

What is an agreement of sale?

This is a preliminary agreement which is concluded between a buyer and a seller outlining the terms and conditions of the property being sold. It therefore creates contractual obligations and is legally binding, safeguarding the interests of both parties during the transaction's intermediate stages. 

It is infinitely important to note that there is no transfer of ownership at this stage. 

It is in the nature of ownership that possession of the property should normally be with the owner and it follows that no other person may withhold it from the owner unless he/she is vested with some right which is enforceable against the owner like the right of retention or one which arises from a contract between the owner and the possessor of the thing. 

An agreement of sale is therefore one such contract between the seller and the buyer which creates enforceable rights but does not transfer ownership. An agreement of sale creates personal rights as it can only be enforced against the seller who sold the property and not against anyone else. It cannot therefore be enforced against anyone else with whom the buyer did not contract with. 

Relating it to our example of a seller who passes on before transfer, the agreement can only be enforced against the deceased person's estate and not any surviving relative.

What is Ownership?

Ownership has been regarded as the most comprehensive real right a person can have over a thing. A real right is a property right that gives a person the complete right to use, acquire, and enjoy a property to the exclusion of others. 

In terms of the Deeds Registries Act [Chapter 20:05], a real right means a right that becomes real upon registration—this registration being registration in the Deeds Office in which the land is situated. 

In principle, it allows one to do whatever they deem fit as the owner of a particular thing observing/adhering to restrictions imposed by the law and rights of others.Title is a concept and in certain cases, a document that designates the legal ownership of a property or asset.

How does one get title to land?

A person can only acquire real rights upon registration of title in the deeds registry office. If A is the owner of a land with a building which he sells to B, then the real right of ownership vests in A until the land and building have been transferred to B through registration. The contract gives B a personal right to demand the transfer of the real right of ownership and imposes a corresponding personal obligation on A. 

Both remain in existence until the contract has been performed (or otherwise discharged). When transfer takes place, B's personal right and A's obligation are extinguished." (Page 14, Silberberg & Schoeman, Law of Property, 3rd edition). 

Section 14 of the Deeds Registries Act [Chapter 20:05] confirms this example and defines the manner in which real rights shall be transferred as follows:

"Subject to this Act or any other law:

a) The ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by the Registrar....."

The registration of rights in immovable property in terms of the Deeds Registry Act is not a mere matter of form. It is a matter of substance: It conveys a real right upon those in whose name the property is registered. (Goncalves v Rodrigues HH 197/03). 

Theoretically the act of registration is regarded as notice to the world of the ownership of the real right which is registered. That merely means that the person in whose name a real right is registered can prove his ownership by producing the registered deed. Generally speaking no person can successfully attack the right of ownership duly and properly registered in the Deeds Office.

If the registered owner asserts his right of ownership against a particular person he is entitled to do so, not because that person is deemed to know that he is the owner but because he is in fact the owner by virtue of the registration of his right of ownership.

Conclusion

An agreement of sale, while an important document in the process of land/property acquisition, does not in itself constitute proof of ownership of land. Until the sale is complete, the title is transferred and the buyer is registered as the new owner, the agreement of sale remains a contractual obligation rather than conclusive evidence of ownership.

*Clive Masango is a registered and practising attorney, conveyancer and notary public who writes here in his personal capacity. 

Disclaimer: The information and opinions expressed above are for general information purposes only. They are not intended to constitute legal or other professional advice. For comprehensive legal advice email: clivemasangoo@gmail.com.