We welcome you to 2020, we trust you have rested and are going to have a fruitful year. We are continuing from where we left off in 2019, sharing knowledge with you and ensuring that you are in a better position to make an informed decision. Today’s topic is one close to the hearts of many readers and has been commented upon by different experts and anyone who has an interest in housing, landlord and tenant rights. We are going to discuss two components of property law only – buying and selling of a house, and eviction of unlawful occupiers – and the laws relating to same. Property law is much broader than this but nonetheless for today we have limited ourselves to those two components of property law based on the mistakes that many people make in buying a house and evicting problematic individuals from their houses.
The buying of a house is governed by the Alienation of Land Act. Briefly the law requires any agreement to buy a house must be in writing and signed by both the buyer and seller. Furthermore the agreement must at least give a description of the house being sold and therequired payment. This simply means that an affidavit made and signed at a police station by the seller confirming that s/he/it has sold the house to the buyer or a verbal agreement relating to the sale of a house will not be deemed as a proper sale agreement. Briefly such a document made by the seller or agreement made by the parties is void as it cannot result in the transfer of the house allegedly sold. It is important to note that no house may be sold by anyone who is not an owner of the house unless a third party has explicitly been authorized to do so by the owner or in the case of a deceased estate, a topic for another day. Ownership of any house being sold in SA can be verified by means ofa deed search at the deeds office. Basically by visiting your nearest deeds office and paying a nominal fee for purposes of confirming that the house being sold to you belongs to the seller. Overall the only person who is tasked with transferring a house from the names of the seller to the buyer is a conveyancer, a lawyer that transfers and registers houses into the names of the buyer. The scope of work of a conveyancer is much broader than the description given above. Ideally it is best to get an expert – a lawyer – to assist when selling or purchasing a house for a peace of mind. For example the parties could settle on a lawyer to keep the purchase price or draft the sale agreement and attending to any other issue relating to the transfer of the house.
It so happens that in many instances where a house ispurchased or the transfer thereof has taken place you find unlawful occupiers or where a lease agreement has been cancelled the tenant refuses to leave your house. Our law – the Prevention of Illegal Eviction from, and Unlawful Occupation of, Land Act – provides in such an instance that the owner or a person authorised by the owner must sue for eviction. The law recognises that no person may be evicted without a court order. Any attempts to do so is regarded as self-help, taking the law into your own hands, and such a conduct could lead to the unlawful occupier’s occupation being restored until the law has been adhered to or alternatively a criminal sanction against anyone evicting the unlawful occupier without a court order. Vuka mawulele!