After purchasing half of a tenanted property in an estate, the new owner is receiving the full rental and a reader questions the legitimacy of that situation.
The money paid to buy the property is held in the trust account of the attorney overseeing the estate.
The purchaser is collecting the full monthly rental on the lease even though, as far as the reader knows, the property has not yet been transferred into his name.
The reader adds that the estate has not been wound up.
See the reader’s question here.
In South African law, a formalised system for the transfer of fixed property is used.
The two primary statutes applicable are the Alienation of Land Act and the Deeds Registries Act.
The first generally deals with the formalities required for the sale of immovable property from one party to another.
The second deals with the formal requirements to effect the registration of transfer of the property forming the subject matter of the sale.
A section of the Deeds Registries Act states that the registrar shall attest or execute and register deeds of transfer of land as well as execute and register certificates of title to land.
Additionally, and more importantly in this case, another section provides more precise details
This section states that the ownership of land may be conveyed from one person to another only by means of a deed of transfer executed or attested by the registrar.
Other real rights in land may be conveyed by one person to another only by means of a deed of cession attested by a notary public and registered by the registrar.
It is clear that registration is the culmination of the process of transfer and that ownership is transferred at the moment of attestation by the registrar.
Thus, the simple answer is that the purchasing party only acquires ownership rights on registration.
It should, however, be considered that the property may have been sold and registered in the name of the purchasing party prior to the winding up of the estate.
Accordingly, it is possible that the purchasing party is already the registered co-owner of the property.
It is not clear why he is receiving the full rental, but it is possible that he is doing so with the intention of settling the accounts with the other co-owner.
If the reader has a bona fide interest in the administration of the estate, he should approach the executor to ascertain the exact nature of the transaction concerned.
In this way, it can be determined whether it is correct that the purchaser receives the full rental.
Ask the YourProperty experts a question here.