Alienation or encumbrance of a minor’s property in Zimbabwe: The legal position

TARIRO MAGAYA AND FUNGAI CHIMWAMUROMBE

Questions frequently arise where a parent or guardian wishes to sell, mortgage or otherwise deal with immovable property registered in the name of a minor.

It is not uncommon to hear questions such as: “I am the child’s biological parent,” “I purchased the property with my own money,” or “The transaction is intended to benefit the child.”

While these considerations may be genuine, Zimbabwean law imposes strict safeguards over a minor’s property and does not permit parents or guardians to deal with such property as they please.

The starting point is that a minor is capable of owning property. In terms of Regulation 31(1) of the Deeds Registries Regulations, where immovable property is transferred or ceded to a minor, it must be registered in the name of the minor and not in the name of a parent, guardian, tutor or curator.

Registration in the minor’s name vests ownership in the minor, notwithstanding that the purchase price may have been paid by a parent or another person. Once property has been registered in the name of a minor, it becomes the minor’s property.

Consequently, a parent’s status as the biological parent, legal guardian or even the person who financed the acquisition of the property does not confer ownership or an unrestricted right to dispose of it.

The law distinguishes between the source of the purchase funds and legal ownership, with the latter being determined by registration. The law further protects a minor’s immovable property from unauthorised dealings. Regulation 31(2) of the Deeds Registries Regulations provides that immovable property or any interest therein registered in the name of a minor shall not be alienated or encumbered unless authorised by the High Court or a judge thereof.

Alienation includes transactions such as a sale, donation or exchange of the property, while an encumbrance includes the registration of a mortgage bond or any other real right that burdens the property.

The rationale for requiring judicial approval is to ensure that every proposed transaction serves the best interests of the minor. Parents and guardians may genuinely believe that selling a property to purchase another, raising capital for improvements, investing the proceeds, or using the property as security for financing will ultimately benefit the child.

However, the law does not permit such decisions to be made unilaterally. The High Court acts as the ultimate protector ofthe minor’s proprietary interests and must be satisfied that the proposed transaction is necessary, fair and beneficial before granting authority. This protective framework is reinforced by section 91 of the Administration of Estates Act [Chapter 6:01], which provides that no testamentary tutor, dative tutor, curator nominate, curator dative or curator bonis may sell, alienate or mortgage immovable property belonging to a minor or forming part of an estate under his or her administration unless authorised by the High Court or, where applicable, where the person who appointed the testamentary tutor or curator nominate expressly authorised such transaction. Even fiduciaries appointed by law are therefore subject to judicial supervision when dealing with a minor’s immovable property.

Zimbabwean law also protects financial interests held by minors.

Where a mortgage bond has been registered in favour of a minor who owns immovable property, the bond cannot be cancelled without first obtaining the consent of the Master of the High Court, as required by Regulation 31(2) of the Deeds Registries Regulations.

This ensures that a minor’s secured rights are not extinguished without appropriate oversight.

The underlying principle is that minors lack full legal capacity to protect their own proprietary interests.

Judicial oversight therefore safeguards their estates against imprudent transactions, conflicts of interest, fraud or the dissipation of assets by those entrusted with their care.

The requirement for court authorisation is not intended to impede legitimate transactions but to ensure that the child’s property is dealt with only where it is demonstrably in the child’s best interests.

Accordingly, where a parent, guardian, tutor or curator wishes to sell, mortgage or otherwise encumber immovable property registered in the name of a minor, the proper legal course is to apply to the High Court for the requisite authority before any transaction is concluded or presented for registration. Failure to comply with these statutory requirements may render the transaction incapable of registration and expose the parties involved to legal consequences.

In Zimbabwe, the law is clear: once immovable property is registered in the name of a minor, it belongs to the minor. Neither biological parenthood, guardianship nor the fact that a parent purchased the property overrides the statutory protections afforded to a child’s estate.

Anyalienation or encumbrance of such property must comply with the law and, where required, receive the approval of the High Court to ensure that the minor’s interests remain paramount.