Honorato Nilo Fernandes v Vereno Joseph Fernandes and Others

The plaintiff and first defendant were brothers who jointly owned undivided shares in a commercial property at Kamfinsa Shopping Centre in Harare since 1996. They leased the property to tenants and shared expenses and rentals equally. In 2006, due to constant disputes, they entered into two agreements: (1) a Memorandum of Agreement dissolving their de facto partnership, and (2) a Cession and Assignment agreement allocating specific portions of the premises to each brother for exclusive beneficial use, while remaining joint owners. In 2007, the first defendant sold two shops from his allocated portion to the fourth defendant (Hudgame Investments), which registered a caveat over the entire property. In 2015, the plaintiff brought action seeking to terminate joint ownership, subdivide the property, and declare all three agreements illegal for non-compliance with subdivision permit requirements under the Regional, Town and Country Planning Act.

• Whether the plaintiff's claim to nullify the first defendant's sale to the fourth defendant was prescribed
• Whether the sale agreement between the first defendant and fourth defendant was illegal for want of a subdivision permit under section 39 of the Regional, Town and Country Planning Act
• Whether the brothers' 2006 agreements (dissolution of partnership and cession/assignment) were illegal for non-compliance with subdivision permit requirements
• Whether the court should order subdivision of the jointly owned property
• Whether a co-owner can alienate an undivided share in jointly owned property without consent of the other co-owner

The court ordered that: (1) Subject to local planning authority requirements and protecting the fourth defendant's rights, the property may be subdivided appropriately and equitably between the brothers; (2) The subdivision shall not prejudice the fourth defendant's rights acquired under its 2007 agreement with the first defendant; (3) Parties must cooperate fully in signing documents and taking steps necessary for subdivision, failing which the fourth defendant or its representative may act in the defaulting party's stead; (4) Subdivision costs shall be borne by the plaintiff and first defendant in proportion to their allocated subdivisions or in equal shares; (5) Each party shall bear its own costs.

The binding legal principles established are: (1) A co-owner of property held in undivided shares has an unfettered right to alienate his or her undivided share, or any portion thereof, without requiring the consent of other co-owners. (2) Alienation of an undivided share in jointly owned property does not constitute a subdivision or transfer of a "portion" of property requiring a subdivision permit under section 39 of the Regional, Town and Country Planning Act [Chapter 29:12], as the proviso expressly excludes undivided shares from the definition of "portion". (3) Co-owners may validly enter into agreements regulating the administrative, occupational and beneficial use of jointly owned property without such agreements constituting illegal subdivisions, provided no transfer of exclusive ownership occurs. (4) Every co-owner has the right to demand partition/subdivision of jointly owned property, and courts have discretion to grant such orders depending on all circumstances of the case, including whether partition is economical, practicable, and compliant with planning laws.

The court made several non-binding observations: (1) While it may be undesirable for a co-owner to wake up finding himself in co-ownership with a stranger due to another co-owner's alienation, the law does not prohibit this, though it may lead to friction. (2) Whether a court will grant a demand for partition remains to be seen in each case and depends on circumstances - partition may be refused if uneconomical, detrimental to co-owners' interests, harmful to adjoining properties, or prohibited by zoning laws. (3) The ability of co-owners to alienate their interests explains why judicial attachment of a co-owner's interest in jointly owned property is legally possible. (4) The court commented on the poor quality of pleadings, noting the plaintiff's claim was "badly pleaded" and "cluttered with numerous other irrelevant causes," though just enough detail was provided to sustain the claim. (5) Each party's arguments were "manifestly misplaced," justifying the costs order that each party bear its own costs.

This case is significant in Zimbabwean property law for clarifying important principles regarding co-ownership of property in undivided shares. It establishes that: (1) co-owners may freely alienate their undivided shares without consent of other co-owners; (2) such alienation does not constitute a subdivision requiring permits under planning legislation; (3) the proviso to section 39 of the Regional, Town and Country Planning Act expressly excludes undivided shares from subdivision permit requirements; (4) co-owners may enter into agreements regulating administrative aspects of property use without effecting illegal subdivisions; and (5) courts have discretion to order partition/subdivision of jointly owned property where joint ownership has become burdensome, even where one co-owner objects. The judgment provides practical guidance on the distinction between alienation of undivided shares and subdivision of property, an area prone to confusion.