Talking Property Law with Gerald Mukomondo; Title Deeds
In my previous write ups, I emphasized that a title deed is the only symbol of ownership of immovable property. A tittle deed also recognized as a deed of transfer carries a real right which is exclusive and enforceable against the entire world. In this article I will explore the title deed, touching on the registering authority, the drafter, the requirements, the contents and format of a title deed.
The Deeds Registry Office
In Zimbabwe tittle deeds are registered by the Deeds Registrars stationed only in Harare and in Bulawayo. In Harare the Deeds Registries Office is housed along Nelson Mandela Avenue at Century House and in Bulawayo they are housed at Tredgold Building. The Registry is a department regulated by the Ministry of Justice, Legal and Parliamentary Affairs it is administered according to the Deeds Registries Act. The deeds office is open to the public and is more useful when one wants to do a deed search and verification process.
Who drafts a title deed
A tittle deed is prepared by a Conveyancer who is a registered legal practitioner in terms of the Legal Practitioners Act. A conveyancer is appointed by the seller unless the buyer and seller agree otherwise. A conveyancer is the only person qualified to draft a tittle deed and thereafter register it. It is important to note that the process does not end with the conveyancer. The conveyancer only prepares a draft which is submitted to the registrar. The registrar when satisfied with completeness and accuracy then signs and places a seal on the deed whereupon it becomes a legal document.
Requirements of a title deed
In order for a conveyancer to be able to prepare a draft deed he/she should be supplied with; the power of attorney to pass transfer – from the seller authorising the conveyancer to process the transfer, the holding deed – being the deed from which the transfer is to originate, rates clearance certificate from the local authority, declarations by seller and purchaser (can be by donor and done) – confirming the transaction, stamp duty fees or certificate of exemption, and capital gains tax clearance certificate – from ZIMRA confirming compliance or exemption.
In certain special circumstances the conveyancer will be supposed to be furnished with proof of appointment for example where the transfer involves transfers in representative capacity. Proof of appointment can be letters of administration in the case of deceased estates company resolution in cases of corporates, certified copy of will in the case of testate estates, general power of attorney in the case of representative appointments, or a constitution where the property is owned by a club. A court order can also be filed with the conveyancer confirming authority to effect the transfer in question.
Contents and outline of a title deed
In order for a deed of transfer to be considered complete and accurate it should contain several essential elements and should follow a particular outline as provided for by the Act. The face of a deed begins with a preparation certificate indicating the conveyancer who prepared the deed. Thereafter comes the heading which specifies the type of deed for example deed of transfer. After the heading then comes the preamble which gives reference to the power of attorney authorising the transfer, this is the introduction of detail in a tittle deed.
After the preamble comes the clauses. The first clause is the recital clause which provides for the reason for the transfer, which can be sale, donation, inheritance or other. The second clause is the vesting clause which gives full particulars of the transferee/s. The property clause follows thereafter giving a full description of the property, size, address, stand number and boundaries. The diagram positioning of the property is covered in the extending clause. Caveats and other conditions registered against the property are contained in the conditions clause. After the conditions clause follows the consideration clause which states the purchase price or value of the property, and lastly the execution clause containing the date of execution. Over and above a title deed is supposed to have the Deeds Registrar’s signature and a seal indicating that the deed has been recorded.
A title deed is the most valuable document when dealing with immovable property whether as a business or for personal use. The legislature has enabled the establishment of the office of the Registrar of Deeds to administer the registration and control of title deeds in Zimbabwe. A title deed looks small and simple but complex and very detailed that it has been left for trained professionals.
This article is a successive part of a simplified series of an outline and discussion of property law. Join me in the next column when I will bring the property transfer process.
Mr. Gerald Mukomondo is a registered Legal Practitioner and a judicious researcher with interests in commercial law. He writes in his personal capacity. The content of his articles should not be taken as legal advice.
He is contactable via 0717 320 985 / @ [email protected]