BUYING AND SELLING OF LAND AND BUILDINGS IN ZAMBIA
PURPOSE: The purpose of this document is to outline safe guards and tips for people who need to do the following:
• Sell or buy land or a building already on title or on Ministry of Lands offer letter.
• Sell or buy customary land.
• Buy land from the Council and/or from Ministry of Lands
• Buy land at council recommendation letter stage or Ministry of Lands invitation to treat stage
• Buy land that has a mortgage.
• Buy or sell land from or by an administrator/executor.
The essence is to show someone the due diligence steps/checks they have to consider as they conduct a purchase/sale of land to prevent them being swindled or paying unforeseen fees or taxes.
1. SELLING/BUYING LAND ALREADY ON TITLE OR MINISTRY OF LANDS OFFER LETTER
Buying/Selling land already on title or the Offer Letter from the Ministry of Lands is safer and easier transaction because the land is already surveyed meaning its exact location, boundaries/extent is known and most importantly the owner of that titled land is easier to identify.
To secure titled land transaction you may follow the following steps:
STEP 1: As intended purchaser visit the plot being sold and obtain physical status of the land. If the land is being occupied ask what permits the presence of the person(s) occupying the land. This is because possession is ten times the law meaning he who is in possession of land has prior interest in the land in question. When you visit the land, request for a land surveyor to get land coordinates from the sellers documents and use those coordinates to ensure that the land that has been visited is the land that the coordinates in the documents are for. Otherwise, the seller can show you any piece of land and you wouldn’t know if that’s the real location or not. They can take you to any land anyway, but with coordinates, the surveyor will make sure the land location is where the seller has taken to show you. Very important. Hire any registered surveyor.
STEP 2: Request for a Photocopy of Certificate of Title from the Vendor and proceed to obtain a register print-out of land in question to know who is the current owner of the land at the Ministry of Lands offices. Ensure you get the print out and not just to be told verbally by the lands officer or anyone in office, obtain a register print out from the Ministry of Lands. Also ask for Vendors NRC, if it is a company, request for a copy of its Certificate of incorporation. That will confirm whether the name appearing on the Certificate of title and that of the vendor are the same. Proceed to Agree on the terms of contract including who will bear costs relating to outstanding land rates/ground rents (the council have a record of land rates so you can obtain the balance from there or ask the vendor to show you the latest bill from the council and compare with the latest receipt they have to see what the balance could be), who will bear the cost for consent to assign, property transfer tax and incidental registration fees. Thereafter, Vendor should draft the contract of sale of the land in question. As purchaser confirm that the property described in the contract of sale is the same as on the Certificate of Title before signing the contract of sale. This is important.
STEP 3: use the copy of Contract of sale to register at Ministry of lands a caveat on the subject land as intending purchaser to ensure that no other transaction takes place on the subject land without your consent. A caveat will protect your interests against fraudsters. No one will transact without your consent, if they do, you are the legal buyer and not any other person.
STEP 4: Vendor must obtain from ministry of lands Consent to assign and other licences necessary to complete transaction. Consent to assign is a requirement of the law that anyone who intends to transfer, sale, give a gift, or lease land must request the permission of the Commissioner of lands in order to validly do so. if consent to assign is not obtained or deemed to have been obtained, the transaction concerned is void and is of no effect. This means no interest in land moves to the purchaser or transferee or otherwise. The Application fees for consent to assign is K333.60
STEP 5: Purchaser must now draft a Deed of Assignment for vendor’s approval and execution. Get a copy of deed of assignment from the ministry of lands.
STEP 6: Vendor must obtain property transfer tax receipt and certificate from Zambia Revenue Authority. Property transfer tax is paid at 5% of the purchase price or ZRA’s property assessment value whichever is higher. Where property value is beyond K500,000.00 there is need to obtain a valuation report from registered valuers.
STEP 7: Vendor must then call purchaser to complete the transaction and surrender the Original Certificate of Title or offer letter to the purchaser.
STEP 8. The purchaser must then together with that original Certificate
of Title, Assignment copy, Consent to Assign copy, property Transfer tax receipt and Certificate copy , lodge a Lodgement Schedule-at the ministry of lands for purposes of registering property in his/her name. This brings transaction to its conclusion.
2. SELLING/BUYING A CUSTOMARY LAND
STEP 1. To safely purchase customary land, firstly go to the Chief and confirm from the Chiefs land register that the person selling the land is indeed the one whose names are appearing in the Chief’s land register. Ask for their NRC’S to counter check and confirm details. Typically, the villages where the land is located have village headmen, these are community leaders that report to the chief. The headmen have an understanding of which land belongs to which person. Therefore, starting with the village headman is the best practice because the chief also seeks advice from the headman on such land matters. If the headman already knows what is happening, it makes it safer and easier for the person buying land.
If the land in the area has been surveyed before by the land surveyor at the ministry of lands, it is good to ask the local people in the area and obtain the lands surveyed map of the area. Verify that the land has not been surveyed to belong to another person or you are not crossing beacons of another land. This is important because villagers may not be fully accurate in determining where land ownership starts and ends for other people’s land.
STEP 2. Insist on executing a simple contract of sale of the subject land and ensure that your name is entered in the Chief’s register against the land in question.
Thereafter, if the purchaser wishes to convert that land to leasehold or state land must then employ the procedure of converting customary land into leasehold meaning to process land to have a title from the government apart from being in the chief’s register. This process starts with obtaining consent from the Chief first, and then the respective District Council and then making an application to Ministry of Lands to convert that land to leasehold tenure. After the land is converted to leasehold it will be offered to the Applicant as state land in which case steps under item 3 below will be followed.
3. BUYING LAND PROPERTY FROM THE COUNCIL OR MINISTRY OF LANDS
This is basically buying land held by the Council or directly from the Ministry of Land. For instance, in Lusaka the Lusaka City Council acquired land from the Ministry of Lands and as such it was given powers to lease that to the public hence it issues council title deeds for such land held by Lusaka city Council. For land still held by Ministry of Lands, Lusaka City Council as an agent of commissioner of lands simply recommends the Applicant to the commissioner of lands to grant the applicant the land applied for within their District or jurisdiction. This is the case in most parts of Zambia.
(a) Buying land from Lusaka city Council
STEP 1: obtain application forms from Lusaka City Council, fill them and submit to the relevant department/town clerk. You will be invited for an interview to answer as to how and what means you will use to develop the land if given to you. Where the Council through their meeting approves your application form, an offer letter from the council will be generated in your name for the portion of land applied for. Application typically comes with a small fee depending on the area in the country and depending on the area in a particular town and if its low cost, medium cost, high cost plot of commercial plots etc.
STEP 2: Accept the Offer by taking steps described in the offer such as paying requisite fees within prescribed time.
STEP 3: Proceed to engage a registered surveyor and obtain site plan Survey diagrams which will be approved by the Lusaka City Council. The surveyor has to be paid, make sure you hire a registered and qualified surveyor. The council can recommend one.
STEP 4: submit the approved site plan together with the survey diagrams to the council after which Lusaka City Council Certificate of Title will be issued to you in your name in respect of the land in question. This is a case where the council has been allocated land by the ministry of lands to issue to applicants and offer applicants title deeds.
(b) Buying land from Ministry of Lands
STEP 1: obtain application forms from concerned City/District Council, fill them and submit to the relevant department at the council. You will be invited for an interview in respect of how you intend to develop the land and what means will be employed in developing the land. Application typically comes with a small fee depending on the area in the country and depending on the area in a particular town and if its low cost, medium cost, high cost plot of commercial plots etc.
STEP 2: Obtain minutes from the concerned City/District Council approving or disapproving your application. Where your application is approved, obtain recommendation letter too from Council. The recommendation letter is addressed to the Commissioner of lands and annexed to the Minutes approving your application and recommending you for the grant of the portion of land applied for.
STEP3: proceed to engage a registered surveyor for Site plan and survey diagrams which will have to be approved by the District Council and Provincial Planning Authority.
STEP 4: Submit the Council minutes, Recommendation letter and approved site plan and Survey Diagrams for the land applied for to the Commissioner of lands at the ministry of lands office, after which the Commissioner of lands will issue invitation to treat to you requesting for payment as acceptance for them to issue offer letter. Invitation to treat is simply a document stating that you can proceed to make required payments such that the Ministry of Lands can start processing your papers.
STEP 5: proceed to make payments in respect of invitation to treat, after which an offer letter will be generated in your favour and it’s time to start developing the place with the building permit that you need to apply for to the council whilst waiting for the Commissioner of Lands to issue a Certificate of Title in your favour. An offer letter in this case is like a temporally document that says the land is yours and you should wait for the title to be prepared and issued to you.
TAKE NOTE that in some cases where land is held directly by Ministry of Lands, Application are made directly to the Commissioner of lands by way of letter requesting to be offered the portion of land applicant is interested in. The Commissioner of Lands after receiving the letter may issue an invitation to treat to the Applicant. Applicant should then make payments in respect of invitation to treat and proceed to obtain site plan and survey diagrams which will be approved by ministry of lands. The Commissioner of lands will after receiving the foregoing issue offer letter and subsequently issue a certificate of title in favour of Applicant.
4. BUYING LAND AT INVITATION TO TREAT OR COUNCIL RECOMMENDATION LETTER STAGE
(a) Buying land at Invitation to treat or council recommendation letter stage
STEP 1: Visit the property in question to ascertain its status. Let the seller using the council recommendation letter obtain the invitation to treat from the Ministry of lands which indicates that the Ministry of lands is happy to issue the land to the applicant as recommended by the council once the applicant makes the required invitation to treat fees. If the land is being occupied ask what permits the presence of the person(s) occupying the land. This is because possession is ten times the law meaning he who is in possession of land has prior interest in the land in question. When you visit the land, request for a land surveyor to get land coordinates from the seller’s documents and use those coordinates to ensure that the land that has been visited is the land that the coordinates in the documents are for. Otherwise, the seller can show you any piece of land and you wouldn’t know if that’s the real location or not. They can take you to any land anyway, but with coordinates, the surveyor will make sure the land location is where the seller has taken to show you. Very important. Hire any registered surveyor. Only transact once the invitation to treat fees have been paid and the offer letter from the ministry of lands is out. Then follow the steps of buying land at the offer letter stage as described above in the first section.
Alternatively, if the land is still at the council recommendation letter stage, as a buyer secure an agreement to have the council recommendation letter re-issued in purported purchasers name. The buyer then proceeds to engage the land surveyor to obtain the site plan that need to be approved by the council. Once the council approves the site plan, the buyer proceeds to the ministry of lands to obtain the Invitation to Treat and make the Invitation to Treat payments in order to be issued the Ministry of Lands offer letter as the buyer waits for the land title to be prepared. Though it is not officially documented like this, but at this council recommendation letter stage, the buyer can still enter an agreement with the seller such that the seller proceeds to the Ministry of Lands to obtain the Invitation to Treat in the name of the buyer. Thereafter, the buyer proceeds to make the payments indicated on the Invitation to treat. The buyer is advised to not make a payment to the seller until the Invitation to Treat papers have been issued by the Ministry of Lands in the buyer’s name. Some of these procedures are not officially documented but they are followed from time to time.
If the Invitation to Treat has already been issued to the seller by the Ministry of Lands, meaning the seller already got a recommendation letter from the council, hired a surveyor to produce a site plan and have it approved by the council, and these documents have already been submitted to the Ministry of Lands and Ministry of Lands has issued the Invitation to Treat. At this stage, the buyer should have an agreement with the seller to request ministry of lands/ commissioner of lands to re-issue invitation to treat to intended purchaser. Once the Invitation to treat has been issued in the buyer’s name, the buyer will need to make the Invitation to Treat payments and obtain the Ministry of Lands offer letter as the buyer waits for the land title.
NOTE THAT: buying land at an invitation to treat stage is very risky as the purported vendor has no accrued interest in the subject land and therefore has nothing to sell other than the opportunity to acquire the subject portion of land. Unfortunately, you cannot even place a caveat because the property neither belongs to you nor the purported vendor. Simply put buying property at invitation to treat stage is high risk and has no protection. The only partial protection is when the invitation to treat has been re-issued in the buyer’s name before the buyer pays the seller any cash. The buyer then pays the amount on the invitation to treat for the offer letter to be issued by the Ministry of Lands in the buyer’s name, only to wait for the title.
5. BUYING LAND THAT HAS A MORTGAGE
The buyer who intends to buy land that has a mortgage need to follow the steps in Item 1 above, as if the buyer is buying land on title as normal. However, before the procedure can be followed, the buyer has to make sure that the mortgage has been discharged. However, if the buyer has high interests in the property on mortgage, the buyer can enter an agreement with the seller and help clear the mortgage in the process as part of the contract of sell.
6. BUYING/SELLING LAND FROM OR BY AN ADMINISTRATOR/EXECUTOR
STEP 1: Request for a copy of court order authorising the personal representative i.e administrator of the estate to sell the subject land.
STEP2: FOLLOW STEPS IN ITEM 1 OR 3, OR 4, OR 5, DEPENDING ON THE SITUATION YOU ARE DEALING WITH.
PLEASE NOTE: As a general caution, whenever purchasing land, it is important to place a caveat before making substantial payment towards the purchase price. This is the only sure way of protecting your interest and prevent any dealing on the subject land without your consent. Also ensure that the land under discussion is what the coordinates say it is using a land surveyor, otherwise the seller can point at any piece of land.
Also note that these procedures may change in part or in all, but from the experience of the author, the procedure will not change or vary in the short term and so significantly that this guide becomes irrelevant.