“In terms of section 33 of the Deeds Registries Act [Chapter 20:05] , land subject to fidei commissum can be partitioned with the consent of the heirs if the same can be ascertained. Where the fidei commissary heirs are not ascertained or where they cannot be found, proof to the satisfaction of the registrar that the land awarded in the agreement of partition to the owner of any share subject to the fidei commissum is an equivalent of that share will be required.“
Partition agreements and partition transfers are done when joint owners of land wish to redistribute the land between themselves. In that case, the land will be subdivided in such a way that each owner receives transfer of a defined piece or pieces of land. The land to be partitioned must be capable of subdivision and a permit to subdivide must be obtained before partitioning.
This type of land development is governed by section 29 of the Deeds Registries Act [Chapter 20:05] (“The Act”) and according to section 29 (1), all owners of the land must be a party to the partition. The agreement to partition or power of attorney embodying the partition agreement must contain the following information as per section 29(2);
- a description of the land to be partitioned
- the share(s) registered in the name of each joint owner
- the share(s) awarded to each owner
- the conditions affecting any land therein so awarded
- consideration, if any, given for the purpose of equalising the partition.
The deed of partition transfer must be drawn in accordance with the prescribed Form F of the Deeds Registries Regulations, 2018. A partitioner should receive land or a share in land and not cash in lieu of land unless it is a consideration to equalize the partition. A partition should not vary the conditions of tenure or conditions affecting the land generally unless it results from the partition itself or the interested parties’ consent.
Partition agreements can also be concluded in respect of sectional title units as well. In terms of section 30 of the Act, where the land sought to be partitioned is mortgaged, the partition transfers shall not be attested unless the bond is produced to the registrar, together with the written consent of the legal holder of the bond to the partition and to the substitution of the land awarded on the partition to the mortgagor for the share or shares mortgaged.
Section 31 of the Act applies to the partitioning of land which is subject to any other rights such as leases and servitudes. The consent of the holders of such rights is required for the partitioning of the land. The land described in the deeds of partition will be made to those rights. In terms of section 33 of the Act, land subject to fidei commissum can be partitioned with the consent of the heirs if the same can be ascertained. Where the fidei commissary heirs are not ascertained or where they cannot be found, proof to the satisfaction of the registrar that the land awarded in the agreement of partition to the owner of any share subject to the fidei commissum is an equivalent of that share will be required.
A note on Sectional Title will follow in the next issue.
 J.O Christie Conveyancing Practical Guide 3rded (2008) LexisNexis p247.
 M.L Mhishi., The Law and Practice of Conveyancing in Zimbabwe 1sted (2004) Legal Resources Foundation p87.
 See section 29 (5) of the Deeds Registries Act and Mhishi, supra, p. 36.