admin
Trust Maanda
A DOUBLE sale is when the seller successively sells the same thing twice or more to different people.
For example, in the sale of real estate, the seller enters into a first sale in which he sells the property to the first purchaser and enters into a second sale in which he sells the same property to the second purchaser, while the first sale subsists.
That often happens in sales of immovable property, resulting in many people losing their hard earned cash.
Victims of double sales sometimes incur huge legal costs of litigation, which they embark on in a quest to get a remedy.
The law provides remedies to victims of double sales.
The first purchaser can approach the court for an order to cancel the second sale, and an order compelling the seller to comply with the terms of the first sale.
The first purchaser should cite the seller and the second purchaser as defendants, and other people with a direct and substantial interest in the matter.
If the property in question is registered, the first purchaser should also cite the Registrar of Deeds, in order to obtain an order directing him to cancel the title deed or register it in the name of the person in whose name the registration of title should be.
If the agreement concerned was a cession, the local authority should be cited as well, for the inclusion of the right purchaser’s name in the local authority’s records.
In seeking the second sale to be reversed, the first purchaser must show the court that he was the first in time to purchase the property concerned, the sale agreement subsists and that the second purchaser bought the property when he knew of the first sale.
In Zimbabwe, the courts have dealt with cases of double sales.
The general rule is that where a double sale takes place, the first purchaser, where transfer has not passed to him, should succeed in having the second sale being set aside.
The principle is that the first in time is the stronger in law.
Qui prior est tempore est jure.
However, the general rule that the first in time is the stronger in law is relaxed where certain circumstances exist.
Where existing special circumstances dictate otherwise, the first purchaser cannot succeed.
The onus is on the second purchaser to allege and prove the existence of the special circumstances.
Special circumstances include: the purchase price paid by the parties, whether any of the parties had taken possession, any improvements on the property, whether the second purchaser was not aware of the earlier sale and whether the second purchaser has taken transfer of the property.
If the first purchaser, for example, paid lesser price than was paid by the second purchaser, the second purchaser had taken possession of the property, or made some considerable improvements, like building a house on the stand, the court may not set aside the second sale.
If the second purchaser was aware of the first sale, either at the time of entering into the second sale agreement or before he takes transfer, he is not a bona fide purchaser.
He is regarded to have connived with the seller. Courts will not lean in favour of a second purchaser who, with the knowledge of the first sale, enters into a sale with the seller.
A second purchaser who deliberately refuses to know the true facts or is deliberately ignorant of the correct position regarding the first sale, cannot plead innocence.
If he was genuinely unaware of the first sale, the court mayuphold the second sale.
If the first purchaser does not develop, improve or protect, the property sold, for a long time after purchasing it, and leads the second purchaser to reasonably believe the property to beavailable for sale, the court may not disturb the second sale. It is advisable to quickly take occupation of the property, if no circumstances forbid.
If the second purchaser establishes special circumstances to tilt the balance in his favour, the first purchaser’s remedy will not be granted.
The first purchaser’s remedy in that case would be in an action for restitution of his purchase price or damages against the seller.
If there are no special circumstances, the first purchaser can get an order for specific performancethat holds the seller to the terms of their agreement.
This order compels a party to perform a specific act, in terms of the contract, such as to complete performance of the contract.
If circumstances warrant, victims may make a police report for an offence of fraud, against a person who sells the same property twice.
Trust Maanda is a legal practitioner. He writes in his personal capacity. He can be contacted on +263 772432646.
Online Reporter