How can I evict an illegal occupant from my late father's house?

The long answer

The first thing to note is that if the house is still in your deceased father’s name, his deceased estate is liable to pay all the municipal bills.

As the last family survivor, you are the inheritor of the house, but until it has been put into your name at the Deeds Office, it does not legally belong to you.

As to what the municipality is billing the estate for, even if there are no functional taps, the following charges would continue: 

• Property rates, which are based on the market value of the property and are payable whether the property is occupied or not, and whether services are being used or not.

• Refuse removal charges, which are fixed charges and are generally charged whether actual collection of refuse happens at the property or not.  

• Sewerage/wastewater availability charges, which is a fixed basic charge to cover the capital costs of connecting the property to the sewer system, even if no water is flowing through the system.

• The charges that would stop or be minimal are those that are based on actual consumption, like metered water and electricity use. 

Was your father’s death reported to the Master of the High Court? A death is supposed to be reported within 14 days of the death. In case it was not reported, I will set out below how it works:

Reporting a death creates a deceased estate which must be wound up – any debts must first be paid from the deceased estate and then property can be transferred. If the death is not reported, no steps can be taken to wind up the deceased estate, which includes transferring the title deed.  A property cannot legally remain in the name of a deceased person.

According to Capital Legacy, if the registered owner of real estate has passed away, the property must be transferred to a new owner, typically a family member, in accordance with the Deceased Administration Act. To close the estate and get the filing slip from the Master of the High Court, assets in the deceased's name must be transferred to the heirs.

Once the death is reported, all the bank accounts and assets of the deceased estate are frozen. No one is allowed to withdraw money from the deceased’s bank accounts or deal with any of the assets like property without the permission of the Master. 

If the property is valued at over R250,000, the Master will appoint an executor to wind up the estate. If it is valued at under R250,000, the Master will appoint a representative to have a letter of authority. But whether a representative or an executor is appointed, both have the responsibility and right to wind up the deceased estate, under the direction of the Master, which means paying all the debts and seeing that the rightful heirs inherit what is left, after the debts have been paid.   

The executor must see that all the municipal debt is paid off from the deceased estate’s assets. Ownership of the house cannot be transferred until the debt is paid. The executor (or representative) will have to ask for rates clearance figures from the municipality before registration of transfer can take place, because the Registrar of Deeds will not allow transfer to take place before all the rates and taxes have been paid. This payment is proved by the municipality issuing a municipal clearance certificate. 

The clearance figures will cover payments of all outstanding amounts for the last two years, as well as six months’ advance charges. SST Attorneys says that if there is enough money in the estate to make payment, it will not delay the winding up of the estate too much, but that if there is no cash available for payment, the heirs will have to pay the cash shortfall before the property can be transferred. 

If the Master appoints an executor or a representative, this is what they will have to do to wind up the deceased estate of your father. They must open a new bank account in the name of “Estate of Late Mr X” so that your father’s bank account is closed and the bank must transfer any money to the new “Estate of Late Mr X” bank account. They will need to provide the bank with the following documents:

• Death Certificate

• Deceased’s ID

• Letter of Authority or Letter of Executorship

• Appointed Representative’s or Executor’s ID

Anyone can be an executor, but the Master of the High Court will only appoint an executor who is able to carry out all the administrative requirements. It is a position that carries a lot of responsibility. Being appointed as the executor or representative does not give that person any rights over the property. Their duty is to wind up the deceased estate, which means first paying all the debts and then seeing that the rightful heirs inherit.

According to Snymans Inc Attorneys, the executor must petition the Master of the High Court to sanction the sale in accordance with section 42(2) of the Administration of Estates Act if the heirs desire to sell the property or if there isn't enough money to satisfy all of the bills. The deed of sale and the heirs' approval to sell the property must be attached when the executor completes form JM33.

After transfer of the property into the name of the buyer in the Deeds Office, the proceeds of the sale are paid into the deceased estate’s bank account by the executor and then distributed to the heir/s.

To find out what the situation presently is with the municipal debt, perhaps you should go to the municipality, taking your ID document and as many documents of your deceased father that you have, including his will, and ask for their assistance in sorting out the problem of the house. 

In terms of the woman who is illegally occupying the house, you probably know that no one in South Africa can be evicted without a court order, whether they are legally or illegally occupying a house. 

You may want to ask an organisation like the Black Sash, which gives free paralegal advice, for assistance. These are their contact details:

• The Black Sash

Email: help@blacksash.org.za and info@blacksash.org.za

Tel (national office): 021 686 6952

Helpline: 072 66 33 73, 072 633 3739 or 063 610 1865.

You may also want to consult lawyers. Legal Aid is a means-based government organisation that must assist people who can’t afford a lawyer. These are their contact details:

• Legal Aid

Email: communications2@legal-aid.co.za

Tel: 0800 110 110 (Monday to Friday 7am to 7pm) 

Please Call Me: 079 835 7179 

Wishing you the best,
Athalie