CONVEYANCING / PROPERTY TRANSFER

WHAT IS A CONVEYANCER?

Section 2 of the Deeds Registries Act (Chapter 20:05) defines a Conveyancer as a person registered as such in terms of the Legal Practitioners Act (Chapter 27:07)

THE DUTIES OF A CONVEYANCER

The Conveyancer plays a pivotal role in any property transaction involving the conveyance of immovable property from one person to another 1 The conveyancer not only attends to the conveyance of real rights in terms of the Deeds Registries Act(Chapter 20:05) but is also responsible for all the financial aspects of the transfer.Conveyancers prepare and sign or execute certain deeds and documents relevant for registration and lodgement with the Deeds Registry.It is the conveyancer’s responsibility to ensure the accuracy of the documents they prepare and sign or execute.The conveyancer must verify the documentation and ensure not only their accuracy but that they comply with the rules.That way,the fraudulent transfers of property can be avoided.Our law generally recognizes professional liability for negligence in improperly drawn documents.A conveyancer depending on the circumstances,may act for both parties.The mere fact that a conveyancer is nominated by one of the parties does not mean that the conveyancer acts exclusively as agent for that party.

WHO CHOOSES THE CONVEYANCER?

Is it the buyer by virtue of his or her buying power? As they say “He who controls the purse, calls the shots.” Is this the case in conveyancing? Is it the Estate Agent who will have negotiated the sale who chooses the conveyancer or is it the seller as the property owner who chooses the conveyancer?

In dealing with this question, Justice Mathonsi had this to say in the case of Scapelox Trading (Pvt) Ltd v Mashangwa Family Trust, Upenyu Mashangwa, Blessing Mashangwa, Commissioner General, Zimbabwe Revenue Authority &Registrar of Deeds

“It is trite that a conveyancer represents the seller and as such the practice in this jurisdiction is that the seller chooses a conveyancer of his choice to transfer the property from the seller to the purchaser. It is for this simple reason that it is the seller who gives a power of attorney to the conveyancer to pass transfer to the purchaser.”

HOW ARE THE CONVEYANCING FEES CALCULATED?

The conveyancing fees are determined by the Law Society of Zimbabwe (Conveyancing fees) By-Laws SI 24/2013.

They are as follows:

1. (i) On the first $ 1 000.00 and under             $400.00
2. (ii) On the next $1 001.00 - $250 000.00       4% of the purchase price or value of the property
3. (iii) On the next $250 001.00 - $500 000.00  3% of the purchase price or value of the property
4. (iv) Over $500 000.00 - $1 000 000.00           2% of the purchase price or value of the property

VAT is chargeable on conveyancing fees. Conveyancers may also recover reasonable disbursement costs.

In addition to the conveyancing fees, the buyer is also required Stamp Duty which is approximately 4% of the purchase price or the value of the property.

UNDERCUTTING IN CONVEYANCING

What is undercutting? Again Justice Mathonsi dealt with this issue in the case referred to above. He had this to say:

“I now turn to deal with the issue of undercutting in conveyancing which has become thorny in this jurisdiction. Quite often legal practitioners find themselves having to undercut in conveyancing fees because of the cut-throat competitive nature of this country’s conveyancing practice usually putting established law firms who have engaged a monopoly in that field against small and upcoming firms. The latter firms usually fall into the temptation of accepting to undertake transfers at far less than the tariff prescribed by the Law Society of Zimbabwe in order to attract clients. It is a shameful practise which has no place in our legal system. It is such conduct which is called under- cutting.”

Can a conveyancer charge less than what is prescribed by the Law Society Conveyancing Tariff? Justice Mathonsi answered this question by saying:

“There must be uniform application of the conveyancing fees. Anything else is unlawful and represents dishonourable and unworthy conduct by a legal practitioner which should be punishable.”

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 our legal or professional advice. Readers are advised not to act on the basis of the information contained herein alone. Every situation depends on its own facts and circumstances.

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