The Process
The Sale of immovable property maybe conducted by the seller personally or through theseller’s agent who maybe an Estate Agent. If you ar buying a property through an Estate Agent you must first satisfy yourself that the Estate Agent is registered witht he Estate Agents Council of Zimbabwe. Whether you are buying the property directly from the seller or through his/her agent, you must if the property is held under title i.e. has Title Deeds, conduct a Deeds Search at theoffices of the Registrar of Deeds in Harareor Bulawayo to check on the authenticity of any Title Deeds which you may have been shown as well as establish whether there are any encumbrances e.g. mortgage bondsor caveats registered against theproperty.
If the property is held under cession then you would need to check with the local authority on the ownership and status of the property before you sign any Sale Agreement.
If after your checks and viewing of the property you want to go ahead with the purchase then the next stage would be the preparation of the Sale Agreement. It is up to the parties to agree on who will draw up the Sale Agreement. Same maybe drawn up by the Seller’s Estate Agent, the Seller’s lawyers or the buyer’s lawyers for a fee. You must ensure that your lawyer goes through the Sale Agreement before you sign same. Non- resident purchasers may appoint an Agent to sign the Sale Agreement on their behalf as well assign the relevant transfer documents. In this regard one should avoid appointing an Agent by way of a General Power of Attorney as such a Power of Attorney is open to abuse. It is advisable to appoint an Agent by way of a Special Power of Attorney which clearly spells out the Agent’s mandate. A Special Power of Attorney executed outside Zimbabwe is accepted if it has been authenticated bya Notary Public, Mayor or a person holding judicial office. In the case of countries in which Zimbabwe has its own diplomatic or consular representatives, the Special Powerof Attorneymaybe authenticated by the head of a Zimbabwean diplomatic mission, the deputy or acting head of such mission,a counsellor, first, second or third secretary,aconsul-general, consulor vice-versa. Your chosen Agent may be a friend, a relative or a lawyer.
Please note that in terms of our law, you cannot buya subdivision unless it has a subdivision permit. You also cannot buy adeceased person’s immovable property unless the Master of the High Court has in writing authorized the Estate Administrator to sell the property
Costs To Be Provided For In The Sale Agreement
The Sale Agreement should where the property is held under titlep rovide the following:
a. The payment of Conveyancing fees by the Purchaser which is approximately 3% of the purchase price.These fees are calculated in terms of the Law Society of Zimbabwe By-Laws SI.24/2013
b. The payment of Stamp Duty which is approximately 4% of the purchase price.
c. The payment of the Estate Agent’s commission byt he Seller.
d. The payment of all arrear rates, electricity bills and other utilit ybills by the Seller
e. The payment of Capital Gains Tax by the Seller. If the property is the Seller’s primary principal property and the Seller is over 55 years, he or she can apply to the Zimbabwe Revenue Authority (ZIMRA) for an exemption from Capital Gains Tax. If not, then capital gains tax is payable at 5% of the value of the property if the property was acquired before February 2009. If the property was acquired after February 2009 then Capital Gains Tax is payable at 20% on any capital gain made on the property as approved by ZIMRA.
f. If the property is a commercial property there should be a clause for the payment of 15% Value Added Tax by the Purchaser unless the Purchase Price is VAT inclusive.
THE PURCHASE PRICE
In cash sales it is advisable to have the purchase price held in Trust either by the Estate Agent or by the Conveyancerpending transfer. It is not advisable to release the purchase price before transfer.
Unless the parties agree otherwise, occupation is normally upon transfer. It is also normally upon transfer that the risk and profit in the property passes from the Seller to the buyer. Where here is a tenant living at the property it is advisable to include an occupational rent clauses o that the Purchaser is paid by the Seller daily rent should the purchaser not be able to take vacant possession on the agreed date due to no fault of his/hers.
ZIMRA INTERVIEWS
The Seller and the Purchaser are required to attend at the ZIMRA offices for interviews in order to assess the amount of Capital Gains Tax, ifany, payable.Both parties may appoint by way of a Special Power of Attorney which should be signed before a Notary Public, agents to represent them at the interviews. At the interview ZIMRA requires the production of the Original Title Deeds in respect of the property as well as the parties proofs of identification in the form of either their passports or national identitycards together with proof of payment of the purchase price.
Yours faithfully
DavisonKanokanga SC
Author | Attorney |Commissioner of Oaths|Conveyancer |Legal Practitioner |Marriage Counselor |Pastor
Kanokanga&Partners Suite1, 1stFloor Mizrahi House
33 Robson Manyika Avenue
Harare
Zimbabwe
Phone +263(4)756681
Phone +263(4)781349
Fax +263(4)752918
Email [email protected]|[email protected]
Disclaimer:
While care has been taken to ensure that this publication is accurate, Kanokanga & Partners accepts no liability for any prejudice, loss or, damage of whatsoever nature which may arise from reliance on any of the information published herein. The contents of this publication are for general information purposes only. The purpose of this publication does NOT constitute ourl egal or professional advice. Readers are advised not to act on the basis of the information contained here in alone.Every situation depends on its own facts and circumstances.
Copyright © Kanokanga & Partners 2015.All rights reserved