By JONATHAN CAMPBELL
Edna Mankayi retired from Rhodes University last year after 32 years’ service in the housekeeping division, and received a lump sum pension payout. For many years she had dreamed of buying a house for her family, who has never owned property, and this is what she decided to do for her family.
There was a house in Tantyi (Erf 3124 Rini) which she always loved, where her son spent much time with his friend, Andile. Andile lived there with his wife and children for many years. Andile decided to move to a teaching job in Port Elizabeth, and wanted to sell the property. Andile and Edna agreed on a price of R120 000, and Edna paid him a deposit of R30 000 in July 2017, with the balance to be paid in monthly instalments.
Edna transferred the R30 000 to Andile’s bank account, and then asked Andile for the papers for the house. Andile suggested she speak to his father, Raymond, who he said had the papers. Edna went to visit Raymond at his house in Extension 3. Raymond was horrified at what Andile had done. He claimed that he (Raymond) was the owner of the house, he wanted to keep it for his daughter and her children, and he did not want to sell it. He showed Edna the title deed to the property, which confirmed that he is the owner of Erf 3124 Rini.
Edna then confronted Andile who claimed that his father gave him the property many years ago, because his parents had their own house in Extension 3. After a week of argument and discussion between Edna, Andile and Raymond, Andile agreed to pay back the money when he is able to (he had already spent the R30 000 on a deposit for a new car). Six months later Edna has still not received any of the money due to her, and does not have a house.
There are many people who find themselves in the position of Edna, for the reason that a sale of immovable property is valid only if several very rigid requirements are met:
- Only the owner of a house or vacant land can sell it
The owner is the person(s) whose name is on the Title Deed of the property (also called a Deed of Transfer). Ownership is registered at the Deeds Office in Cape Town. If title is not properly registered then that person is not the owner. For these reasons Raymond is the owner, not Andile, and so Andile cannot ‘sell’ the property.
How can ownership be proved?
Edna should have asked Andile (or Raymond) for the title deed before agreeing to buy the house. If Raymond did not have the title deed, then Edna could get a Deeds Office printout which states who is the owner of the property (e.g. through Windeed). This Edna could get at Makana Municipality, High Street, Grahamstown (tel: 046 637 0428). She would need to take with her:
- A full description of the property (Erf number and address).
- The amount of R86 to be paid to Makana finance department for the printout.
- A sale of property MUST be in writing and signed by both the seller and the buyer
This is necessary in order to comply with the Alienation of Land Act. Normally there is a ‘Deed of Sale’ which is signed by both parties. This was not done by Edna and Andile, and so there is no valid ‘sale’ of the property (even if money and the property are exchanged).
Note: the purchase price must NEVER be paid directly to the seller, as Edna did. It must be paid to the conveyancer only when s/he calls for it, and the conveyancer will pay it to the seller only on date of registration of transfer.
- Transfer of the property from the seller to the buyer must be registered in the Deeds Office
Transfer is done by a conveyancer (an attorney who is also a qualified conveyancer). It is common for transfer to take place 6 weeks or even longer after the Deed of Sale is signed. The purchase price is paid to the seller on date of registration of transfer.
- What if there are outstanding rates or service charges on the property?
The seller is liable for rates and municipal service charges up to the date of registration of transfer. If there are outstanding rates and municipal service charges due to the municipality, it will not be possible to transfer the property into the name of the buyer.
Edna should have enquired about this before agreeing to buy the property.
For these reasons you should never try to buy a property without legal advice and guidance, and a conveyancing attorney is always necessary in order to ensure that everything is done properly. The Rhodes University Law Clinic is available to assist with advice in matters such as these, and will refer you to conveyancing attorneys when necessary.
Director, Rhodes University Law Clinic