An 80-year-old mother wants to transfer her RDP house into her daughter’s name and the latter wants to know the process required.
The daughter, the reader, is the youngest of four children. All her siblings own their own properties and her mother wants her to own a dwelling as well.
The primary legislation applicable to housing and housing assistance of this type is the Housing Act of 1997.
This legislation has been amended, most importantly for purposes of the reader’s question, by the Housing Amendment Act of 2001.
The legislation is also linked to the National Housing Code, which contains policy on national housing and includes certain provisions relating to the practical implementation of the housing policy.
See the reader’s question here.
Importantly, the 2001 amendment brought about two provisions which are relevant to the reader’s question.
These two provisions relate respectively to the restriction on voluntary and involuntary sales of state-subsidised housing.
The first provision, dealing with the restriction on voluntary sales, specifies that where a housing subsidy is granted the resident cannot sell the dwelling or site within a period of eight years from when the property was acquired.
This can only be done if the site has first been offered to the relevant provincial housing department.
The section states that if a person wishes to vacate a property within that period the relevant housing department is deemed to be the owner and that no purchase price or other remuneration shall be paid to the person vacating the property.
The second important restriction to take note of, in respect of involuntary sales, is that people who are successors in title or creditors in law cannot sell or otherwise alienate the dwelling unless it has first been offered to the relevant provincial housing department.
This must be done at a price not greater than the subsidy which the person received for the property.
It is important to note that it is possible that the title deed of the dwelling may be endorsed to indicate that these provisions apply.
The section further provides that the transfer of such a dwelling shall not be permitted unless the offer to the housing department was made and rejected or if an exception applies.
The reader should establish whether her mother has owned the dwelling for more than eight years to determine whether transfer of the dwelling is possibly restricted.
Although not always strictly observed, the restriction on voluntary sales is not only limited to the sale of the dwelling but also to its alienation.
This includes the letting of the dwelling by the person receiving the subsidy.
If no restriction exists, the reader should consider whether it is necessary that the property be transferred while her mother is still alive.
It might possibly be sensible for her mother to bequeath the dwelling to her in her will.
It is important to note that the transfer should be effected in a proper manner to ensure that proper title is passed from the mother to the daughter.
The reader should seek appropriate legal advice, perhaps consulting with a conveyancing attorney.
This is to ensure that her mother holds valid title and then to consider the cost implications of passing transfer while her mother is still alive, compared to her inheriting the house on her passing.
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