Buying Property- Buyer Beware!
By Dickson Jere
He purchased a plot from the Administrator of the deceased. His quick enquiries all pointed to the fact that the land belonged to the deceased and therefore the Administrator had powers to sale the property.
Unknown to him, the Property actually belonged to someone else even though it was initially offered to the deceased. The buyer sued, unsuccessfully, in the High Court, where he had argued that he was “bonafide purchaser without notice” of any encumbrances.
He appealed to the Court of Appeal.
A panel of three Judges analyzed the evidence and agreed with the lower Court that proper due-diligence was not done when the property was sold.
The Court reechoed the legal principle that an Administrator of the Estate of the Deceased cannot sell property without firstly obtaining permission from the Court for such a transaction.
“The appellant’s conduct fell short of the standard of due diligence required when one is purchasing land…” the Judges observed.
The Court of Appeal went on to advise that the legal principle of “bonafide purchaser for value without notice” can only be used when the buyer of property had done his due diligence by checking on the property and title records.
“One of the legal requirements that effectively protect interested persons where land is subject to a sale transaction belongs to the estate of a deceased person is the requirement by personal representative (Administrator) to obtain leave (permission) before selling the property,” the Judges stated.
The Court observed that had the buyer checked the record at the Ministry of Lands, he would have discovered that another person had interest on that particular piece of land and obtained title deeds.
“Had he done so, he would have discovered that the deceased had no title which the Administrator could pass on to the appellant by way of sale,” the Court said and dismissed his appeal with costs.
The Court opined that any sale of property by the Administrator without the Court permission (leave) is null and void and the contract of sale cannot be enforced.
This latest case – Rodney Kapenda v Enock Chitiya and ZCCM-IH (Appeal No. 194/2021 – is a reminder of the old authorities on the sale of land in Zambia.
Before buying land, one is expected to conduct two things, which are (1) physically visit the property and interview people staying there and find out their interests and (2) check the authenticity of the title do a search at the ministry of lands to check the title is clean.
However, if the seller is an Administrator, third requirement is that they must produce a Court Order allowing them to sell.
Good case for the Real Estate agents and those involved in Conveyancing.
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