DOUBLE SALES

Have you ever found yourself in a situation where you find out that a property that you have purchased was sold to someone else as well? If the answer to this question is Yes, then this article is for you.

The concept of double sales came about as a result of the greedy and dishonest nature that individuals possess. As a result, citizens are duped / defrauded of their hard earned money and are conned into purchasing properties that may have already been sold to someone else. Double sales may be defined as the corrupt or rather fraudulent sale of property by one (the seller) to at least two different parties (the purchasers).

Members of the public are strongly advised by the to conduct a Deeds search at the Deeds Registry in either Bulawayo or Harare depending on where the property that one intends to purchase is located, prior to concluding the sale. This will save a lot of clients from possibly falling victim to these criminals that sell the same property more than once.

The Deeds search provides following information;

• That the Deed actually exists and is registered in the system (that it is not a fake Title deed)
• The details of the owner such as their name, date of birth and Identity number.
• Extent (size) of the property
• Where the property is situated (accurate property description)
• Conditions imposed on the property
• Date of registration
• Whether the property has been pledged as security (collateral) for a loan

After having done the initial Deeds search one can then trace all prior Deeds and previous owners of the property, leading up to the current Title Deed.

The above mentioned measure is a precautionary one but in the event that one has already succumbed to such a scam then they may resort to the Courts for recourse. The remedy that is available to parties is making a claim in the Courts for specific performance for one party and a claim for damages for the other party. A criminal case may also be pursued against the seller in such a case. One may note that in the case of the two purchasers the Courts tend to favour the first buyer as opposed to the second one especially where transfer has not been effected, this stance was highlighted in the decided case of Guga v Moyo & Ors where it was held that;

“the basic rule in double sales where transfer has not been passed to either party is that the first purchaser should succeed. The first in time is the stronger in law. The second purchaser is left with a claim for damages from the seller, which is usually small comfort. But the rule applies only in the absence of special circumstances affecting the balance of equities”.

There are instances where the second buyer was aware of the first sale and in such cases the courts exercise no leniency towards the second buyer as they willingly entered into a fraudulent sale however such a party can lay a claim against the seller for funds paid.

There are some exceptions to the position that the first purchaser is given preference over the second buyer and the circumstances have been laid out in case law. The court tends to look at the balance of equity and as a result of such there are instances where the second purchaser may be awarded the property instead of the first purchaser such as that the second purchaser was not aware of the first sale and/or the second purchaser has made improvements to the property and/or transfer of the property has been done in favour of the second purchaser. In such instances the Court reserves the right to make a ruling that the property be awarded to the second purchaser. The Court exercises its discretion in matters of such a nature.

In the event that you have been a victim of such a circumstance please do not hesitate to engage our team of legal practitioners that is ready to assist.

This article is for general information purposes only-seek the professional legal advice.