Can I legally claim ownership of an RDP house sold to me by someone who isn't the deceased owner's legal heir?

The long answer

If the deceased father did not leave a will, the law of Intestate Succession applies like this: if there is a surviving wife, the property will be left to her and their children, but these children will include his son, even though his mother was not married to his father. To calculate a child’s share of the deceased estate, you divide the value of the estate by the number of children of the deceased, plus one (the surviving spouse). The law says that a spouse must receive R250,000 or a child’s share, whichever is the higher amount.

I am presuming that the title deed is still in the deceased father’s name. If so, the son could not legally sell the house until the title deed was transferred into his own name, as it is only the title deed that proves ownership. If the title deed had been transferred to the son’s name, he would be the legal owner of the house and could sell it. I am presuming that the Deeds Office told the lawyer that the estate must first be wound up – which would mean finding out whether there is still a surviving spouse, and/or children, who would also be entitled to inherit.

The process when someone dies is that the death must be reported to the Master of the High Court within 14 days. The Master will appoint a person with a Letter of Authority to wind up the deceased estate, if the estate is worth less than R250,000. If it is worth more than R250,000, the Master will appoint an Executor. 

Winding up a deceased estate means paying all the debts and making sure that the heirs get what is rightfully theirs. This is done by the person with the letter of authority or the executor. No one else is allowed to distribute the assets. The Master of the High Court will oversee the distribution of the assets.

What Benaters says about transfer of property after death, is that relatives must provide documents proving their relationship to the deceased person to claim their inheritance. Benaters says that the process can take from a few months to a few years to complete, depending on the individual case.

If the son has a birth certificate with his father’s name on it as well as his mother’s, that would be proof that he is the deceased father’s son, even though he is not using his father’s surname. If the son’s mother is still alive, she could also provide what proof she has, and a sworn affidavit that the deceased was her son’s father.

It may be a good idea for you and the son to go to the municipality where his father made the application for the RDP house, and ask them to find the father’s file. The municipality will have a list of all the dependants that the father listed and the son should check that he was listed. And he could ask if there has been any contact with the wife since the death of her husband and if they have any contact details for her. 

DeedsOffice.Online explains the legal difference between a title deed and a deed of sale:

• The deed of sale is a contract that outlines the terms of the sale and binds both parties to the terms of the agreement, but does not transfer ownership.

• The title deed provides legal ownership rights to the buyer once registered.

In an article in October 2024, JJR Inc. Attorneys warns that “The sale proceeds should not be paid to the seller until the house has been fully transferred. Another point to remember is that a person who has inherited an RDP house from a deceased person cannot sell the house until it has been transferred to them.”

So, as it seems to stand now, the son’s signature on the deed of sale is invalid because he doesn’t have the legal right to sell the house until it has been transferred to his name. It cannot be transferred to his name until the estate has been wound up, which involves the rights of the surviving wife and/or children, which could be a lengthy process. 

You should get some legal advice on how to proceed to get your money back, as the deed of sale was not valid. You may also wish to ask for advice about your chances of getting a court to declare that you, as the buyer, are the rightful owner of the house. But that does not seem likely to happen until the surviving wife and/or children are located and the deceased estate settled, which could take some time. 

You could ask for assistance from Legal Aid, which is a means-tested organisation that must assist people who cannot afford a lawyer. These are their contact details:

• Legal Aid

      Email: [email protected]

Tel: Toll-free Advice line: 0800 110 110 (Monday to Friday 7am to 7pm) 
Please Call Me: 079 835 7179 

Reception (National Office): 011 877 2000

Legal Aid Ethics Hotline: 0800 153 728 

You could also ask the Tenure Support Centre (TSC) for advice. From their website: “The TSC is a housing support office based in Khayelitsha, Cape Town that helps individuals resolve title deed problems. The TSC works closely with partner conveyancing teams as well as government departments to ensure title deed problems are resolved through formal, legal channels.”

These are their contact details:

• Tenure Support Centre

WhatsApp at 065 041 6832

Email: Illana Melzer at [email protected] or 

Kecia Rust at [email protected]

Wishing you the best,
Athalie