Introduction: Tying up loose ends and exploring remaining common scenarios:
“…then you shall inquire diligently…”(Deuteronomy 17vs4; New King James)
Welcome back. In the previous missive, it was established that due diligence pertaining to real estate, involves close, attentive inquiry to ascertain that one is dealing inter-alia, with a bone fide seller, and that the immovable property itself, is a transferable interest. In this second and final installment, will cover a few “loose ends” as it were, and explore other common scenarios.
Dealing with property owners based in the diaspora:
In the previous article, the underlying assumption was that the ostensible property owners were based locally, yet, what if they are based abroad? Here is what to look for:
Property with deeds:
From the get-go, it is a sine-qua-non that one obtains:
- A notarized affidavit from the apparent property owner: It is essentially a sworn statement identifying the individual (name, residence and work status), as well as declaring that they are selling their immovable property, and, ideally, naming the proxy or third party in Zimbabwe who will be handling the transaction pertaining to that particular immovable property. The document must have the seal of a notary public of that nation where they are based.
- Next, their proxy or point-person based here in Zimbabwe, must have a special, specific power of attorney from a local notary public, specifying that they are the assignee pertaining to that specific immovable property, and it only. The registrar of deeds will not transfer title without this.
- From there, one may request to inspect the muniments of the prima facie property owner, as well as their emissary: Again, pore over certified copies of ID’s, birth, marriage and academic certificates, as well as deeds. When in doubt, seek the aid of a notary public as well as the assistance of the registrar general’s office in authenticating the documents.
- Perform a deeds search to check that all is in order pertaining to the property in question: A significant portion of the time, people are not malevolent per se, but innocently mistaken, thinking that their property is in a transferable state, yet it is not. For instance, one may long have amortized a mortgage bond, but have forgotten or neglected to have had it cancelled; thus, due diligence such as a deeds search, may help unearth this, so that such issues may be dealt with, paving the way for a clean, efficient sale and subsequent transfer of title.
Bonus tip pertaining to properties with deeds:
Suppose someone is not forthcoming with a deed of transfer for you to inspect or pore over; what to do? Perhaps they are not even so much as giving you the deed number; again, what to do? Well, request to go with a registered, reputable estate agent (if you are not feeling comfortable or confident), and view the property in question. Take careful note of the area, in particular (assuming that this is a residential property, for instance) the suburb, street name, and how many stands the property is off of the nearest intersection.
Armed with those details, report to the Surveyor General’s office. There, one may request a survey map of, for instance, Harare, and zero-in on the area of interest (e.g. Greystone Park). Knowing the road the property is on, one will notice a numbered grid (e.g. grid number 9829). Request for the detailed map of that grid, and, upon receiving it, trace the stand the property is on by seeing how many stands the property in question is from the nearest intersection. Once confident that one has identified the correct stand, request the survey diagram of that stand (typically, on the map, a stand will have the appellation of “Lot X of Y Greystone Park”. In the case of stands with townhouses or flats whose owners have sectional title, it will say for instance, “Landshare Z”).
When given the survey diagram, at the bottom, one will likely see text saying, “This diagram is annexed to Deed of Transfer no…” Voila! That, “Deed of transfer no…” is the deed number armed with which one may conduct a deeds search at the deeds office, and unearth the salient details of the property in question, and assess if things tally or not. Remember, too much is at stake, not to be in the know.
When it comes to real estate due diligence, where there is a will, there is a way.
Secondary purchase from cession holder based in the diaspora:
Here, the initial pair of sine-qua-nons (indispensable prerequisites) outlined in the “Property with deeds” subhead apply, namely:
- A notarized affidavit from the apparent property owner:
- Their proxy or point-person based here in Zimbabwe, having a special, specific power of attorney executed by a local notary public: As with the case of the registrar of deeds, no serious local authority or property developer will even think of effecting transfer, without such sine-qua-nons.
- The remaining protocols of due diligence, apply here, mutatis mutandis, as covered in the previous article.
Due Diligence for Share Block Transfers:
In this setup/configuration, a registered company holds title (deed of grant or deed of transfer) over a property (typically a block of flats or a complex of townhouses). The shareholders own blocks of shares in the company (in the form of a share certificate), giving them exclusive right of occupation to a particular flat, townhouse or “unit”.
This mode of ownership is not all too common or in vogue nowadays, yet is still encountered significantly enough that it warrants coverage.
What needs to be considered is quite a gauntlet, yet, if you have made it this far in what we have covered, I am confident in – as well as applaud – your commendable powers of concentration.
- As always, ascertain the shareholder whom you are dealing with: From the outset, consider everything as apparent or prima facie. Thus, request comprehensive muniments such as certified copies of ID, birth, marriage and/or academic certificates, as well as request to see the share certificate. If the shareholder is based abroad, request to see a notarized affidavit signaling their serious intent to sell, as well as their emissary’s special specific power of attorney executed by a local notary public.
- Conduct a deeds search: This will ascertain, among other things, whether the company in question still owns the land, as well as any other important things to note which may have a bearing on one’s interest (e.g. caveats, miscellaneous agreements, et cetera).
- Conduct a companies search at the Registrar of companies: Check if the company is up to date with its annual returns and that it has not been struck off. It is the onus of the shareholders and directors to attend to such expenses, prior to a sale, as it is grossly unfair for one to be saddled with expenses which had nothing to do with them.
- Check with the Company Secretary on the bona fides of the prima facie shareholder: They should assist in verifying the credentials of the apparent shareholder, as well as the authenticity of their share certificate. What is more, they should also inform as to whether or not the shareholder is up to date with their levies.
- Request to see the Memorandum and Articles of Association of the company: Check if they tally both at the Companies Registry, as well as with the copies kept with the company secretary. In particular, look out for and pay close attention to any provision of a “right of pre-emption.” This essentially means that before the shareholder in question offers to sell their block of shares in the company to a third party, they must first notify the other shareholders of their intent to sell, and, if no one comes forward with a serious offer to purchase after a month (30 days), then they may proceed with engaging third parties. The repercussions of not abiding by that clause are inclement to say the least, and as such, check with the seller as well as with the company secretary, if that clause was adhered to, and where possible, get such confirmation in writing.
- Whilst inspecting the Memorandum and articles of Association, check to see if the company is “trading”: If the company is “trading”, then it will have to file tax returns to ZIMRA, and these costs may be saddled by the shareholders. Being aware of such costs may have a bearing on one’s interest in the property.
- As always, view the property and see if it is to your liking: View both the unit of particular interest, as well as the stand in general. When viewing the stand, also check if there are any mobile tower masts and/or billboards. Why? Because income or rental agreements with such entities is deemed as “trade” in the eyes of ZIMRA, and, if tax returns are not filed, a hefty debt may soon accrue, which may be borne by the shareholders.
Thank you for your investment of time and attention. Investing in real estate is a big deal, thus, please take due care. When it comes to real estate due diligence, being a doubting Thomas is virtuous, and when in doubt, always check.
- Article titled, SHARE BLOCK TRANSFERS: The General Issues by Tim Tanser Consultancy with Pam Golding Properties, Zimbabwe, which appeared in pages 42 and 43 of issue 13 of Structure and Design Magazine (https://online.anyflip.com/vfmdq/gvbq/mobile/ ; accessed May 24th, 2023)
- A pair of magnanimous registered estate agents who are members of the Real Estate Institute of Zimbabwe.
Tatenda Kangwende is a mortgages officer with Metbank (Pvt) Ltd, in Harare, Zimbabwe. Should one need his services, they are free to:
- Visit: 5th Floor, Metropolitan House, 3 Central Avenue, Harare, Zimbabwe.
- Call, SMS or instant message (WhatsApp): +263 714 729 043
- Email: firstname.lastname@example.org