A reader sketches a situation whereby her sister applied for a bond 20 years ago in order to assist their parents with renovations to their property.
The bank would not consent to such a bond unless the property was registered in the sister’s name.
When the reader’s father passed away recently and the sister moved into the property to live with her mother, the issue arose again.
She produced a document purporting to comprise a transfer and indicating that she bought the property from her parents for an amount of R65 000.
The reader is concerned because neither her parents nor her sister’s signatures appear on the “title deed” and this amount almost certainly did not change hands between her parents and sister.
The reader would like to know what rights, if any, her sister has in respect of the property and how they would go about proving she never paid for it.
Schalk van der Merwe from Rawson Properties Helderberg says it is possible that the “title deed” referred to by the reader may be an agreement of sale and not an actual title deed.
“The transfer of ownership in respect of fixed property is a formal process prescribed in the Deeds Registries Act of 1937 (as amended). Ownership cannot simply be transferred by means of an agreement between the parties or by virtue of occupation.”
Van der Merwe says not only is a written agreement of sale one of the basic requirements, but the registration of the transfer in the appropriate Deeds Office is another that has to be complied with. “It should be clarified whether the documents shown to our reader, inclusive of the ‘title deed’, are sufficient to satisfy these requirements.”
As a rule, says Van der Merwe, only the conveyancer preparing and executing the title deed in the Deeds Office and the Registrar of Deeds’ signatures will appear on the title deed.
Lucille Geldenhuys from Lucille Geldenhuys Attorneys in Stellenbosch says the transfer will only be executed if supporting documentation (including a Power of Attorney to Transfer signed by the registered owner/s) is presented to the registrar.
“However, the underlying transaction upon which the property is transferred does not have to be a sale. It can also take place by donation.”
If so, says Geldenhuys, the seller could be liable for donations tax, depending on the donations tax fee limit applicable during the year in which such donation was made.
Geldenhuys says it is unclear and questionable on what basis the transfer may have taken place. “A quick deeds search could easily clarify the current position as to ownership of the property.”
If fraud is suspected and transfer has indeed passed, a legal process may have to be instigated to have the registration reversed and this may be costly and time consuming, according to Geldenhuys.
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