I bought a new RDP house from the owner. He has since moved to another province. How can transfer the property to my name?

The long answer

So you have a certified copy of his ID, a signed sale agreement, an affidavit and proof of payment. But you can’t find him to transfer the house to you. He had never lived in the house: you and your family were the first to occupy it. You want to know how you can transfer the house into your name.

This is a very difficult situation, because you aren’t allowed to sell an RDP house before eight years, in terms of the Housing Amendment Act of 2015. And after eight years, if the owner wants to sell it, he or she has to offer to sell it to the government before it can be sold to anyone else, unless the  Provincial Human Settlements Department has given written permission for the sale. So the owner did not have the legal right to sell you the house. 

And although you have a signed sale agreement, a certified copy of the owner’s ID and proof of payment, it does not make the sale legal if the seller bypassed the eight-year restriction. Although sales like these do happen a lot, these agreements are not legally covered. 

JJR Inc Attorneys says that the Department of Human Settlements can cancel the sale or declare the sale nonexistent if it bypassed the eight-year restriction.

These are the dangers:

For the seller: the housing dept (Human Settlements) can repossess the house.  The seller could also face criminal charges for breaching the Housing Act.

For the buyer: the buyer has no legal ownership and can be evicted by the state at any time. Also, because the sale agreement was not legal, the buyer cannot usually get the money back through the courts. JJR Inc Attorneys says that the buyer can’t force a transfer at the Deeds Office because the eight-year restriction says that such sales are explicitly banned if there is no government consent.

The way that transferring ownership works is that the buyer must pay a transferring attorney (a conveyancer) to transfer the house to the buyer’s name at the Deeds Office. As you know, the only legal proof of ownership is the title deed. If the previous owner had not lived in it, it is likely that he didn’t yet have a title deed. 

You could check at the Deeds Office whether a title deed was issued: you would need to go in person to the Deeds Office with the erf number of the plot and the full name and/or ID number of the previous owner. They will help you fill out a form to check whether the deed was registered, and you will have to pay a search fee of R19.

A house seller also has to get a clearance certificate from the municipality to say that all municipal services have been fully paid for two years before applying for the certificate. The Registrar of Deeds can only transfer the property if the clearance certificate has been issued.

So what can you do? 

If the seller had not yet received the title deeds from the municipality, his name and his dependants’ names would still be kept by the municipality. Perhaps you could take all the documents you have to the municipality, explain the situation and ask them to help you to legalise your situation. 

You could ask for advice from the Black Sash, which gives free paralegal advice. These are their contact details:

Black Sash

• Email: [email protected] and [email protected]

• Tel (national office): 021 686 6952

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

 You could also ask for legal advice from Legal Aid, which is a means-tested organisation that must help people who can’t afford a lawyer. You could ask them whether, in the circumstances, it would be at all possible to bring an application to the high court to ask for a declaratory order that the house be transferred into your name, as you have paid the seller. That may well not be possible because of the seller bypassing the eight-year restriction. But you could ask for any assistance that they can give you.

These are their contact details:

• Legal Aid

• Email: [email protected]

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

• Please Call Me: 079 835 7179

Wishing you the best,
Athalie