The law on double sales

A “DOUBLE SALE” in the context of immovable property typically refers to a situation where the same property is sold to multiple buyers by the same seller, resulting in a conflict over ownership rights.

This situation may arise due to errors or negligence on the part of the seller, or outright fraudulent activities, among other things.

There are a few scenarios in which a double sale may occur:

1. Error or oversight — The seller mistakenly enters into separate agreements to sell the same property to different buyers. This could happen due to administrative errors, miscommunication or lack of proper documentation.

2. Fraudulent activities: In certain cases, fraudulent sellers intentionally engage in double sales to deceive multiple buyers, thereby obtaining multiple payments for the same property. Courts and, indeed, the media are awash with such cases. I once wrote an article on the important safeguards before acquiring a property.

3. Invalid or unauthorised sales: If the property is sold by someone who does not have legal authority to do so, such as an unauthorised agent or a person without proper ownership rights, this can lead to a double sale situation.

The question, therefore, is: What is the legal position in a double sale situation?

The position of the law is settled. In the case of Guga v Moyo & Ors 2000 (2) ZLR 458 (S) at 459E-H, McNally JA said: “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 against the seller, which is usually small comfort. But that rule applies only ‘inthe absence of special circumstances affecting the balance of equities’. See Mckerron (1935) 4 SA Law Times 178, Burchell (1974) 91 SALJ 40. Burchell was of the view that ‘the balance of equities must weigh heavily in favour of the second purchaser’ before the court could favour her over the first purchaser.”

◆