BUYING AN IMMOVABLE PROPERTY FROM A DECEASED ESTATE IN ZIMBABWE. WHAT ONE NEEDS TO KNOW AND HOW TO SECURE RIGHTS IN IMMOVABLE PROPERTY PURCHASED.
INTRODUCTION
Purchasing an immovable property from a deceased estate poses a lot of problems and in many cases, people end up losing their hard-earned money after the sale is considered or declared invalid by court. For example, recently, we have been engaged by a client who purchased land from an Executor of a deceased estate. He entered into a verbal agreement of sale with the Executor. The sale was not authorized by the Master. Unfortunately, the Executor passed on without having ownership in the property transferred into our client’s name. Without our client’s knowledge, the beneficiaries of the Estate continued with the Administration of the Estate process and the same property was distributed to the beneficiaries in equal shares and are now seeking eviction of him from the premises. Our client was an innocent and honest purchaser but he did not ascertain whether all necessary procedures regarding the sale of property belonging to an Estate had been complied with.
It is almost every person’s dream to acquire a Stand/House at some point. To avoid future headaches and loses, it is important for one to have full understanding of the procedures to be followed when purchasing an immovable property belonging to a deceased estate. Immovable property can be defined as land and buildings affixed to the land. This article will shed light on what one needs to ascertain before signing an agreement of sale for an immovable property belonging to a deceased estate and after purchasing, what steps need to be taken to secure rights in the property purchased.
WHAT IS A DECEASED ESTATE?
A deceased estate refers to the property left by a person upon his or her demise/death. It covers both assets and liabilities. The property belonging to an estate can be legally sold. However, there are some procedures to be complied with before selling property belonging to a deceased estate.
WHAT ONE NEEDS TO KNOW BEFORE PURCHASING THE PROPERTY BELONGING TO A DECEASED ESTATE
Before entering into an agreement of sale of an immovable property belonging to an Estate, it is important to check whether the Estate is represented by an Executor duly appointed by the Master of the High Court through the Letters of Administration. An Executor is a person responsible for the administration of a deceased person’s Estate or a representative of a deceased estate recognized in terms of the law. All the transactions involving the deceased estate are conducted through an Executor. It is important to note that an Executor can be appointed in terms of a Will, if the deceased person left a will. In the absence of a Will, An Executor is appointed in terms of Section 253) of the Administration of Estates Act [Chapter 06:01]. An Executor appointed in terms of a will cannot transact on behalf of the deceased estate before issuance of Letters of Administration by the Master of the High Court. Letters of Administration is conclusive proof that someone is authorized to act on behalf of an Estate of Deceased person.
After verifying, the status of the Executor, the next step is to check whether such sale has been sanctioned or authorized by the Master of the High Court. It is the responsibility of the Executor appointed to apply for a consent to sale from the Master of the High Court before selling the property belonging to the deceased estate. The consent of the Master of the High Court is required to dispose of a property belonging to an Estate. Section 120 of the Administration of Estates Act [Chapter06:01] provides that,
“If, after due enquiry, the Master is of the opinion that it would be to the Advantage of persons interested in the Estate to sell a property belonging to such estate otherwise by public auction he may, if the will of the deceased contains no provision to the contrary, grant the necessary authority to the executor so to act.”
Before granting the authority to sale in terms of section 120 of the Administration of Estates Act, the Master of the High Court should conduct a due inquiry and find out if all beneficiaries have been consulted and consented to such sale and whether such sale is in the best interests of the beneficiaries.
It is imperative to also note that, in a scenario where some or all of the beneficiaries are minors, consent from the High Court which is the upper guardian of all minor should be sought. In Zimbabwe, a minor is a person who is below the age of 18 years and generally all minors are regarded as incompetent to consent or manage their own affairs.
The procedure of getting consent from the High Court starts by making a chamber application for the appointment of a curator ad litem.[1] A Curator ad litem is a person appointed by the court to represent the interests of a minor child. The chamber application must be served on the Master of the High Court who will then make a written report to the judge. The judge will consider the application and if proper, grants it. After appointment of a curator ad litem, the application seeking the consent of the High Court to dispose the property will then be filed. The curator ad litem should then investigate and establish whether it is in the best interests of the minor child/children to have the property sold. After a thorough investigation, a curator ad litem will then compile a comprehensive report and serve the Registrar of the High Court and all interested parties. The court will be guided but not bound by the curator’s report. If satisfied that it is in the best interest of the minor child to have the property sold, the court will grant its consent.
After verifying that all the above procedures have been complied with, one should then enter into an agreement of sale. After signing the agreement of sale and paying the purchase price, the purchaser must make sure that title is transferred into his/her name by the Registrar of Deeds if the property title is held under title deeds. The process of transferring ownership from the previous owner to the new owner is called conveyancing. It is done by Legal Practitioner additionally qualified as a Conveyancer and registered as such in terms of the Legal Practitioners Act [Chapter 27:07]. In the sale of property belonging to a deceased Estate a Conveyancer will be appointed by an executor. As explained above, an executor is a legal recognized representative of an Estate.
Registration or transfer of rights in land/house in terms of the Deeds Registries Act conveys real rights upon the person in whose name the property is registered. A real right of ownership over an immovable property is only acquired through registration. A real right gave the owner absolute control over the property. In Lungisani Moyo v Musiyiwa Nyamukonda &Anor HB 41/18, the court had this to say,
“It is settled in our jurisdiction that ownership in immovable property is held by way of a Deed of Transfer in the name of the person who owns the immovable property as provided for in the Deeds Registries Act [Chapter 20:06]. Registration of right in immovable property is a matter of substance as it conveys real rights upon those in whose name the property is registered, which rights have been described as “the total of all possible rights in a thing.”
There are also some properties in Zimbabwe without title Deeds and rights, title and interests over the property will be held under cession. In such a scenario, it is also imperative for the buyer to have right, title and interest ceded into his /her name.
To conclude, before one entered into an agreement of sale over an immovable property belonging to deceased estate, one should ascertain whether the person representing the estate is an Executor duly appointed by the Master of the High Court through the Letters of Administration issued to him/her. After verifying the status of the Executor, the buyer should also check whether the sale has been sanctioned or authorized by the Master of the High through a consent to sale issued in terms of section 120 of the Administration of the Deceased Estates Act and if there are beneficiaries who are minors also ascertain whether the High Court consented to such sale. A beneficiary cannot sale property on behalf of the deceased estate. After signing an agreement of sale and paying the purchase price, the process does not end there. The purchaser must make sure that ownership is transferred into his/her name or rights or interests over the property are ceded to him or her to avoid future problem whereby the beneficiaries can re-register the property as part of the deceased estate. It is important to seek legal representation throughout the whole process from due diligence until such a time the property is transferred into the purchaser’s name.
[1] Rule 61(2) of the High Court Rules,2021
Looking for a deceased estate for sale in Harare, do you have any such properties.Thank you Hazel Magumise
Deceased estate available
Thank you for reaching out to us regarding the purchase of a deceased estate. I would like to make it clear that we are not estate agents, and we don’t sell estates. We are Legal Practitioners and our main role in deceased estates is to assist with the administration process. However, we will let you know if we come across one that’s being sold.