A reader wants to know if a fixed property can be transferred from a parent to a child without that parent consulting the child’s siblings.
Furthermore, he asks whether it is possible to determine if such a transfer has already been legally effected.
See the reader’s question here.
In the 1979 case of Gien v Gien, the court stated that the right of ownership is the most comprehensive real right a person can have in respect of a thing.
The point of departure is that a person can, in respect of immovable property, do with it as he pleases.
This apparently unfettered freedom is, however, a half-truth. The absolute power of an owner is limited by the restrictions imposed by the law.
From this it can be noted that restrictions in terms of fixed property are typically legal in nature.
Such restrictions may arise out of national or local legislation or they may be set out in the title deed, such as servitudes in favour of a third party.
Or they can often arise out of a contract, such as those restrictions that become effective when a mortgage bond is registered over a property.
If the basis of transfer is sound in law, for example the fixed property was sold or donated to the child concerned, it should not be impeded.
This would be the case assuming that no other child held any pre-emptive right on the property which allows him to be able to acquire it under certain circumstances that trumps the agreement between the parent and the property-receiving child.
Although siblings may feel that they have some right to a parent’s fixed property or, at least, a portion thereof, it is not the case.
This is similar to a child expecting to inherit from a parent.
While it may be common for a parent to bequeath his estate to the children, South African law provides for the freedom of testation which permits you to bequeath your estate in any manner acceptable in law.
Similarly, even if you might expect it would be proper to consult with the other children before transferring a valuable asset to one child, it is not necessary for the approval of the other children before doing so.
He does not even have to inform them of his intentions.
Of course, a parent hampered by any affliction that affects legal capacity will require the consent of a person with the necessary authority over his or her estate.
A child may, for example, be the curator or administrator of that parent in which case the consent and assistance of that child will be required.
Fixed property is transferred in a specific manner in accordance with the provisions of the Alienation of Land Act.
Transfers are recorded in the relevant Deeds Office and proof of transfer can be obtained from that office.
It is also possible to have a person with the required access to perform an electronic Deeds Office search.
Many attorneys and estate agents subscribe to software to have such access.
A search for the property can be conducted and the registered owner, together with a record of bonds registered, will be available from the records.
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